Ram Surat Ram, J. - (1.) SUPPLEMENTARY affidavit filed today is taken on record. Heard Sri S.P. Giri for the petitioners and Sri Amit Singh for the respondents.
(2.) THE writ petition has been filed against the order of Additional Commissioner dated 24.2.2009 and Board of Revenue dated 2.1.2014 passed in the proceeding arising out of the suit under section 176 of U.P. Act No. 1 of 1951. The petitioners as well as respondents both have purchased a part of plot No. 161 of village Ova Nagar, tehsil Chhata, district Mathura. The petitioners filed a suit for partition of his share in the land in dispute. The Sub Divisional Officer by order dated 15.9.2007 passed a preliminary decree deciding the share of the petitioner as 3.25 acre in the land in dispute. Balbir filed an appeal from the aforesaid order. In the appeal Balbir raised ground that according to the sale -deed itself shares of both the parties were partitioned as such the suit for partition was not maintainable but without considering the objection of the defendant the preliminary decree has been passed by the Sub Divisional Officer. The Additional Commissioner by order dated 24.2.2009 found that sub -plots of plot No. 161 in khatauni 1314 fasli to 1319 fasli have already been allotted. Thus, there is already division of the plot No. 161. Since both the plaintiff and defendant obtained sale -deed of sub plots as such without looking to the record, the preliminary decree has been passed. On this finding the appeal was allowed and the matter was remanded to the Sub Divisional Officer to decide the suit after taking evidence of the parties and hearing them, in accordance with law. The petitioners filed revision from the aforesaid order before the Board of Revenue, which has been dismissed by the Board of Revenue by order dated 2.1.2014. Hence this writ petition has been filed.
(3.) THE Counsel for the petitioners submits that Lekhpal has no jurisdiction to carve out a plot to give effect partition in the revenue record. He further submits that according to the defendant the sale -deed of the petitioners was in respect of plot No. 161/1 as such the petitioners should be given possession over it as marked by the Lekhpal in the record but in the sale -deed of the petitioners it has been clearly mentioned that he has been sold the land lying in eastern -northern portion along with his plot No. 162. Thus, the Additional Commissioner has illegally failed to examine these facts and the observation was made by him that only on the basis of sub -plots allotted in khatauni, the matter is required to be decided in accordance with law. He submits that the observation made by the Additional Commissioner will create difficulty for the petitioners as the Sub Divisional Officer will be bound by the observation and finding of the Additional Commissioner and will not consider anything else in the matter. In such circumstances, the revision was filed but it was illegally dismissed by the Board of Revenue.;