H. N. Seth, J. - (1.) BAIJ Nath Singh and Mst. Pandhari, who were defendants in a suit for partition, instituted in the year 1956 before the revenue courts, under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act, by Ashwani Kumar (respondent No. 2), have filed this petition under Art. 226 of the Constitution. The petitioners challenge the validity of the order of the Board of Revenue dated 23-1-1976 and pray that the same be quashed.
(2.) RESPONDENT No. 2 Ashwani Kumar filed two suits on 6-10-1956 and 6-12.1956 claiming partition of his 1/3 share in the properties situated in villages Dheerhara, Poha and Pipari. Whereas one suit related to the properties situated in village Dheerhara and Poha, the other related to properties situated in village Pipari. In both the suits preliminary decrees declaring that plaintiffs had 1/3 share in the properties were passed in the year 1958. However, the defendants agitated the matter upto the Board of Revenue and thereafter before this court by means of a petition under Art. 226 of the Constitution. Ultimately his writ petition was dismissed by this court in the year 1966, and thereafter proceedings for preparation of final decree for partition were commenced. In due course, the Patwari prepared the lots in the year 1967 and submitted the same before the court. Lots prepared by the Patwari were ultimately approved by the court. At this stage, the petitioner pointed out that in the suit they had raised an objection to the effect that plaintiff's father had mortgaged his share in the property, which was redeemed by Komal Singh. Further plaintiff's grand mother had during the minority of plaintiffs father mortgaged his share with Komal Singh which had not been redeemed so far. Accordingly, plaintiff was not entitled to partition and separate possession of his share till he paid up the debt due under afore mentioned mortgages. The trial court had framed issue No. 7 in this regard, but while passing the preliminary decree it left this issue open to be decided at a later stage.
(3.) SUBSEQUENTLY , while deciding issue No. 7 the trial court held that so far as the suit relating to village Pipari was concerned, it had, because of the provisions of the Consolidation of Holdings Act, abated. So far as the other suit was concerned, it relied upon the statement of Kuber and held that the family of the parties had remained joint throughout. According to it, any redemption of mortgage by a member of joint Hindu family was for the benefit of the entire family and the person redeeming could not derive any advantage from it. Moreover, the mortgage said to have been executed by Smt. Sahodre appeared to be fictitious. Apparently one member of the family had mortgaged the property with another member of the joint family with a view to defeat the claim of the creditors. Claim of the petitioner that the plaintiffs, were not entitled to claim possession of the property till they paid up the entire loan, therefore, was liable to be rejected.;