1. Heard Shri M.E. Khan, learned counsel for the petitioner, Shri Balram Yadav, Advocate for the caveator/opposite party no. 3, and Shri Ajay Kumar, learned counsel for the State.

2. This writ petition has been filed seeking the following relief:-

"(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite party No. 2 to separate the share of the petitioner from that of the opposite party No. 3 in Khata No. 559 comprising of Gata No. 706, 781, 784, 785, 797, 917, 918 and 920 having total area 0.625 hectare situated in Village-Hariharpur Balaiya, Pargana, Tehsil-Ruduali, District-Ayodhya, in pursuance to the final decree dated 31.03.2021 passed in Case No. 1376 of 2021 In Re: Shaheem Sheikh Versus Aleem Khan and others within stipulated time prescribed by this Hon'ble Court."

3. A caveat has been filed by three applicants through Shri Balram Yadav, Advocate. Out of three applicants one i.e. applicant no. 3 is already arrayed as opposite party no. 3, but, the remaining two applicants are not parties in this writ petition. Applicant no. 2- Alim Khan is the erstwhile tenure holder of the land in question who has sold of the land to the opposite party no. 3 and as the latter is already an opposite party, therefore, Alim Khan is neither necessary nor proper party in these proceedings nor he is entitled to be heard. As regards applicant no. 1- Mohd. Farhad, Shri Balram Yadav, Advocate submitted that the land which was the subject matter of suit for partition under Section 116 of the U.P. Revenue Code, 2006, it was also the subject matter of consolidation proceedings. The old Gata number of the land in dispute was 1595 and the new Gata number is 781. Arising from the consolidation proceedings a writ petition bearing No. 8395 (Cons.) of 2019 has been filed by the applicant no. 1- Mohd. Farhad claiming rights in respect of the said Gata. However, on being asked Shri Yadav fairly accepted that there is no stay or interim order in the said writ petition. In this view of the matter we are of the opinion that applicant no. 1- Mohd. Farhad does not have any entitlement to be heard in these proceedings. He may pursue his writ petition which is said to be pending before this Court or seek such other remedy as may be available in law. Moreover, applicant nos. 1 and 2 have not filed any application for impleadment in these proceedings. As regards the applicant no. 3 who is already arrayed as opposite party no. 3 Shri Yadav has not filed any counter affidavit on her behalf. We asked Shri Yadav as to whether the opposite party no. 3 has challenged the final decree under Section 116 he submitted that it is proposed to be challenged and the opposite party no. 3 claims that she did not have any knowledge of the said decree.

4. The facts of the case in brief are that a suit for partition was filed by the petitioner under Section 116 of the U.P. Revenue Code, 2006 (hereinafter referred to as 'the Code, 2006') and the corresponding Rules contained in the U.P. Revenue Code Rules, 2016 (hereinafter referred to as 'the Rules, 2016'). In the said suit a preliminary decree was passed defining the share of the co-sharers on 18.02.2020 and orders were issued for preparation of Kurra. On 12.03.2021 the Kurra was prepared by the Lekhpal. Coloured map was also prepared. This exercise was done after visiting the spot. The same was forwarded to the Court of Sub-divisional Officer on 15.03.2021 where the suit proceedings were pending. On 23.03.2021 the Sub-divisional Officer confirmed the Kurra prepared by the Lekhpal and ordered for preparation of final decree. The final decree was prepared on 31.03.2021.

5. The contention of learned counsel for petitioner is that after preparation of final decree the same has not been implemented and the shares of the petitioner have been divided on the spot.

6. Learned Standing Counsel Shri Ajay Kumar as also Shri Balram Yadav, learned counsel for opposite party no. 3 submitted that the actual implementation of the final decree can only be done in proceedings for execution, therefore, this writ petition is not maintainable.

7. In response Shri M.E. Khan, learned counsel for petitioner has invited attention of the Court to Rule 107 of the Rules, 2016 which deals with division of holding and Rule 109(8) of the Rules, 2016 containing the procedure for the suit proceedings to submit that at the stage of the final decree itself the shares of the plaintiff has to be separated from that of the defendant by metes and bounds, which according to him, means, actually, on the spot and not merely on paper. Therefore, he says that separate execution proceedings are not liable to be initiated, instead, after passing of the final decree, in the same suit proceedings, the Court was under an obligation to implement the final decree of separation of shares on the spot, by metes and bounds.

8. Having given our anxious consideration to the facts and issues involved we find that as per Section 116 of the Code, 2006, a bhumidhar may sue for the division of the holding of which he is co-sharer. As per Section 117, in every suit for division of holding under Section 116 the Court of Assistant Collector shall follow such procedure as may be prescribed; apportion the land revenue payable in respect of each such division.

9. Now, the procedure prescribed as referred in Section 117 is to be found in Rule 107 to 109 of the Rules, 2016. Rule 107 contains the requirement of a plaint to be filed under Section 116. Rule 108 deals with a suit for division of several holdings. Rule 109, which is relevant, deals with preliminary and final decrees. As per Sub-rule (1) of Rule 109 if the plaint is in order, it shall be registered as a suit and the defendants shall be called upon to file their written statements. The suit shall then be decided according to the provisions of the Code of Civil Procedure, 1908. As per Sub-rule (2) of Rule 109 before making a division the Court shall-(a) determine separately the share of the plaintiff and each of the other co-tenure holders; (b) record which, if any, of the co-tenure holders wish to remain joint; and (c) make valuation of the holding in accordance with the circle rate fixed by the Collector applicable to each plot of the holding. Sub-rule (3) of Rule 109 provides that if the suit is decreed, the Court shall pass a preliminary decree declaring the share of the plaintiff. Thus, in a suit for partition the initial stage comprises of declaration of share of the plaintiff and consequently the other parties also. At this stage, it is quite possible that out of several co-share holders the plaintiff may alone seek a partition while the rest of the co-sharers may opt to continue to remain joint holders, therefore, only the plaintiff's share would be declared and there would be no partition inter se between the remaining co-sharers, but, the partition would be only between the petitioner and the opposite parties, however, if all the parties including the defendants seek separate share then there would be partition amongst all of them.

10. Now, as per Sub-rule (4) of Rule 109 after preparation of the preliminary decree, the S.D.O. shall get the Kurra prepared through the Lekhpal. At this stage of the proceedings, as per Sub-rule (5) of Rule 109 the Lekhpal is required to submit the Kurra report within a period of one month from the date of receiving the order in this regard. While preparing the Kurra he is required to observe the following principles:-

"(a) the plot or plots shall be allotted to each party in proportionate to his share in the holding;

(b) the portion allotted to each party shall be as compact as possible;

(c) as far as possible no party shall be given all the inferior or all the superior classes of land;

(d) as far as possible existing fields shall not be split up;

(e) plots which are in the separate possession of a tenure holder shall, as far as possible, be allotted to such tenure holder if they are not in access of his share;

(f) if the plot or any part thereof is of commercial value or is adjacent to road, abadi or any other land of commercial value, the same shall be allotted to each tenure holder proportionately and in the case of second condition the same shall be allotted proportionately adjacent to road, abadi or other land of commercial value; and

(g) If the co-tenure holders are in separate possession on the basis of mutual consent or family settlement, the Kurra shall, as far as possible, be fixed accordingly."

11. It is evident from the aforesaid that the Kurra has to be prepared by the Lekhpal after visiting the fields/land in respect to which the partition proceedings have been initiated. Thus, this preparation of Kurra is not an exercise merely on paper but it is based on a field exercise on the basis of which the Kurra report has to be prepared.

12. The Kurra report is then submitted by the Lekhpal to the Court of Sub-Divisional Officer as per Sub-rule 6 of Rule, 109 who shall invite objection thereon and thereafter appropriate orders shall be passed by him after affording opportunity of hearing to the parties and considering the objection, if any, filed against the report submitted by the Lekhpal. If the Sub-divisional Officer confirms the report and Kurra then under Sub-rule (7) of Rule 109 the final decree shall follow.

13. It is evident from the above that based on the spot inspection Lekhpal shall prepare the Kurra in terms of the principles mentioned in Sub-rule (5) and then the Kurra and report regarding it shall be submitted to the Sub-divisional Officer where the affected parties would have an opportunity to file their objections. After this exercise, if the S.D.O. confirms the Kurra, then, the final decree is required to be prepared.

14. Now, Sub-rule (8) of Rule 109 mentions as to what is to be done at the stage of final decree. It says that at the stage of final decree, the Court shall-(a) Separate the share of the plaintiff from that of the defendant by metes and bounds. (b) Place on record a map showing in different colours the properties given to plaintiff as distinct from those given to the defendant. (c) Apportion the land revenue payable by the parties. (d) Direct the record of rights and map to be corrected accordingly.

15. Now, what Sub-rule (8) in our understanding means is that after the exercise of declaration of shares by the preliminary decree, the preparation of Kurra and report in respect thereof by the Lekhpal based on the spot inspection and its confirmation by the Sub-divisional Officer, a final decree is to be prepared mentioning the separate shares of the plaintiff from that of the defendants by metes and bounds; a map showing in different colours the properties given to plaintiff as distinct from those given to the defendant is to be placed on record; the land revenue payable by the parties is to be apportioned between them for the benefit of revenue and the record of rights and map are to be directed to be corrected accordingly.

16. In our opinion the words 'separate the share of the plaintiff from that of the defendants by metes and bounds', occurring in Rule 109(8)(a) means separation of such shares definitely and separately in the final decree based on the exercise of preparation of Kurra and its confirmation. It does not imply that in the suit proceedings itself either before preparation of final decree, or for that matter after passing of the final decree, the same has to be implemented on the spot by actual demarcation of separate shares on land in the same suit proceedings. What it merely means is that the shares of the plaintiff and defendants have to be precisely described in the final decree. In taking this view we are supported by observations of Hon'ble Supreme Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna and Ors. reported in (2009) 9 SCC 689 wherein Hon'ble the Supreme Court had the occasion to consider the concept of partition and various stages of a suit for partition albeit in the context of the Code of Civil Procedure which in fact applies to partition suit under Section 116 of the Code, 2006 also by virtue of Sub-rule (1) of Rule 109 of the Rules, 2016. After a lucid discussion as to the concept of partition, its permutations and combinations, Hon'ble the Supreme Court has noticed that in a suit for partition or separation of shares the Court at first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) and termed as 'preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial and administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division, is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2). These observations with utmost respect apply to suit proceedings under Section 116 of the Code, 2006 read with Rule 107 to 109 of the Rules, 2016 also. The ministerial or administrative act requiring the physical inspection etc. referred in the said judgment as has been mentioned above corresponds to similar act of Lekhpal under Sub-rule (5) of Rule 109. Hon'ble the Supreme Court has further observed in the said decision that after the aforesaid exercise, a final decree, whereby the relief sought in the suit is granted by separating the property by metes and bounds, is passed. It has also observed in this very context that as declaration of rights and shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is division by metes and bounds takes place by passing a final decree. These observations make it abundantly clear that division by metes and bounds takes place by passing a final decree.

17. It has further observed that preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of prayer in a partition suit relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief by division by metes and bounds. These observations on the concept of final and preliminary decree in a partition suit are very relevant for our purposes in the context of separation of shares/ division of holdings under Section 116 also and squarely apply to the case at hand in the sense that by the final decree a separation of shares takes place by metes and bounds, as, is mentioned in Sub-rule 8(a) of Rule 109. This separation by metes and bounds at the stage of final decree is thus based on the Kurra and report prepared by the Lekhpal i.e. if it is confirmed, a final decree is to be drawn specifically demarcating the shares of the plaintiff and defendants by metes and bound i.e. clearly and specifically in the final decree. It has been observed by Hon'ble the Supreme Court in the said case that the century old civil procedure contemplates judgments, decrees, preliminary decrees and final decrees and execution of decrees. They provide for a 'pause' between a decree and execution. A 'pause' has also been developed by practice between a preliminary decree and a final decree. The 'pause' is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. It has further observed that the ground reality is that defendants normally do not comply with the decrees without the pursuance of an execution. Consequently, it is necessary to go to the second stage that is levy of execution, or applications for final decree followed by levy of execution in almost all cases.

18. Thus, Hon'ble the Supreme court has demarcated the stages in a suit for partition. The first stage being of declaration of share by preliminary decree. The second stage comprising of levy of execution, or applications for final decree followed by levy of execution in almost all cases. Thus, separation of shares by metes by bounds at the stage of preparation of final decree is separate from actual execution of the final decree and the contrary contention of Shri Khan even in the context of Sub-rule (8) of Rule 109 is not acceptable. What Sub-clause (a) of Sub-rule 8 of Rule 109 of Rules, 2016 means is that in the final decree the shares of the plaintiff and the defendants should be separated by metes and bounds i.e. by specifying the same precisely by mentioning the boundary lines etc. and describing the same.

19. Of course after considering the cumbersome process, Hon'ble the Supreme Court recommended that determination of shares, preparation of final decree and then its execution should all be done in the same proceedings and it observed that in suits for partition and other suits involving declaration of the right and ascertainment/quantification of the relief, the process of the suit should be continuous, consisting of the first stage of determination and declaration of the right, second stage of ascertainment/division/quantification, and the third stage of execution to give actual relief, but, this expectation of Hon'ble the Supreme Court has not fructified at least in the Code, 2006 nor in the Rules, 2016 and the provisions made in this regard have not been challenged by the petitioner. The vires of the said provisions not having been challenged, we are bound to read, understand and implement the provisions as they are. Much as we would like to have read the provision as Shri Khan wanted us to do as it would be in consonance with the expectation of the Supreme Court in the above referred decision, but, the fact of the matter is that, as of now, there is a separate provision for execution of decrees even under the Code, 2006 and Rules, 2016 and the scheme of the said Act and Rules does not contemplate execution of the final decree in the suit proceedings itself. We, therefore, reject the contention of Shri M.E. Khan, learned counsel for petitioner that Clause (a) of Sub-rule 8 of Rule 109 of Rules, 2016 enjoins upon the Court concerned to execute the final decree in the suit proceedings itself.

20. By virtue of Section 234 (3) of the Code, 2006, the Revenue Court Manual, the Land Record Manual etc. in force on the date of commencements of the said Code have been mandated to continue to remain in force to the extent they are not inconsistent with the provisions of the Code, 2006 until amended, rescinded or repealed by any regulation made under this Section. Now, we find that U.P. Revenue Code, 2006 or the Rules, 2016 made thereunder does not contain any provision for execution of decrees passed under the said Code, but, by virtue of Subsection (3) of Section 234, the Revenue Court Manual becomes applicable. Revenue Court Manual contains a provision for execution of decrees in Chapter- V which has the heading- 'Rules Relating to Execution of Decrees in Revenue Courts'. The said chapter contains general provisions for execution of decrees. Most importantly, in exercise of powers under Section 233 of the Code, 2006 regulations known as the Revenue Court Manual (Amendment) Regulations, 2016 have been made by which U.P. Revenue Code Manual has been amended obviously keeping in mind its application to the proceedings under the Code, 2006 and Rules, 2016 as the amendment itself is under the Code, 2006. Sub-regulation (1) of regulation 460 of the Regulations, 2016 referred above provides that the decree or order passed under the Code and Rules framed under the Code shall, mutatis mutandis, be executed in accordance with the provisions of Chapter V of the Revenue Court Manual for execution of partition suit decrees. The contention of Sri Khan that there is no specific provision for partition decrees can also not be accepted as there is no need for any specific provision separately for execution of partition decrees. There is no such specific and separate provision for execution of decrees in a partition suit even under the Code of Civil Procedure, 1908. Whatever is the procedure prescribed generally same can be utilized for execution of a final decree passed under Section 116 of the Code, 2006 and Rules made thereunder.

21. In light of discussion made hereinabove we are of the considered opinion that Clause (a) of Sub-rule (8) of Rule 109 merely requires separation of shares of the plaintiff from that of the defendants by metes and bounds in the final decree itself and not by way of execution of the final decree on the spot. The term 'metes and bounds' as used in the Clause (a) of Sub-rule (8) of Rule 109 means the actual description of the shares specially and categorically in the final decree.

22. It can be reasonably said that as per the scheme of the Code, 2006 the Rules, 2016 and the Regulations, 2016 made thereunder in the context of partition proceedings there are two broad stages. The first stage comprises of a preliminary decree and preparation of final decree, whereas, the second stage is the execution of such decree. We ourselves wish that the legislature should have kept in mind the observations of Hon'ble the Supreme Court in the case of Shub Karan Bubna (supra), but, unfortunately, it had not done so and scheme of the aforesaid Act, Rules and Regulations do not provide for continuous proceeding for preparation of a preliminary decree, final decree and its execution. These stages have been separately provided, as discussed above.

23. The words 'separate the share of the plaintiff from that of the defendants by metes and bounds' used in Clause (a) of Sub-rule 8 of Rule 109 means, description of measurement/area and boundaries of their separate shares with reference to the Gatas/fields/holdings which is the subject matter of partition at the stage of final decree i.e. preparation of final decree, in black and white. The actual partition on the ground by metes and bounds is to be done at the second stage in execution proceedings where objections to the same can also be raised by the parties to the proceedings or third parties. Broadly speaking there are two stages of partition. First stage has two parts- (a) declaration of rights and shares by preliminary decree and (b) separation of shares by describing measurements/area and boundaries of such separate shares in respect to the holding by preparation of final decree, coloured map etc. based on the Kurra' report of the Lekhpal. Second stage is of execution of such final decree. In execution proceedings boundaries of separate holdings/shares would be marked and/or erected each on the ground by a demarcation exercise as per descriptions and measurements/area of the holdings divided and separated by the final decree and the coloured map prepared at the stage of final decree. The words - 'at the stage of final decree' can not be read and understood as implying any action after the stage of final decree which is the stage of execution of such final decree and for which a separate provision has been made in Regulation 460 of the Regulations, 2016 by which the Chapter- V of Revenue Court Manual relating to execution of decrees gets attracted. The words 'metes and bounds' means description of measurements and boundary lines. This can be on paper as also on the ground/spot. Sub-rule (8) of Rule 109 envisages such description on paper at the stage of final decree albeit preceded by an on the spot inspection by the Lekhpal. On the ground such description has to be made or given effect in the execution proceedings.

24. When we peruse the final decree prepared in this case we find that the same has been prepared on the basis of 'Chitthi Batwara' and 'Rangbhedi Nazri Naksha' which has been referred as 'Chithi' No. 1 and 'Chithi' No. 2 and had been confirmed on 23.03.2021. The final decree dated 31.03.2021 prepared thereafter refers to 'Chithi No. 1 relating to Shaheem Sheikh the petitioner and 'Chithi' No. 2 relating to Hakimul opposite party no. 3 herein. The details in respect of both the 'Chithies' mention the Gata number, the area, the share and then the division of holding in respect to each of the Gatas by mentioning the area given to Shaheem Sheikh. It then mentions the land revenue payable. The last column i.e. Column No. 9 refers to colour green which is a reference to the map prepared wherein the division of holdings has been shown in respect to the plaintiff and the defendant by different colours. The said map, which is also on record, read with the final decree contains the description of measurement/area and boundaries of the divided holding. Necessary corrections in the revenue records has also been made. It is this description of separate shares of plaintiff and defendant by metes and bounds at the stage of final decree, which is to be executed in subsequent proceedings for execution of such decree which have to be initiated separately.

25. In light of the above, we are of the opinion that this writ petition is not maintainable before this Court under Article 226 of the Constitution of India as the petitioner can get the final decree which has been passed by the Revenue Code under Section 116 of the Code, 2006 executed in terms of Regulation 460 of the Regulations, 2016 as inserted in the Revenue Court Manual in 2016. The writ petition is accordingly dismissed.