Ram Surat Ram (Maurya), J. - (1.) Heard Sri Madan Mohan for the petitioner. The writ petition has been filed against the order of Board of Revenue, U.P. dated 21.7.2015 dismissing the revision of the petitioner and the orders of Sub Divisional Officer dated 18.6.2015 and 1.9.2014 by which in the preliminary decree the name of Umesh Sharma, respondent -6, has been substituted in place of Vijai Singh on the basis of sale -deed executed by Vijai Singh of his share in his favour, and Lekhpal has been directed to submit a fresh report relating to kurra of the parties.
(2.) Ram Ji Lal (the petitioner) filed a suit for division under Sec. 176 of U.P. Act No. 1 of 1951 of plot Nos. 693, area 0.057 hectare, 695 area 1.7330 hectare situated in village Dadhki, pargana and tehsil Khairagarh, district Agra. Initially, a preliminary decree in the suit was passed ex parte by order dated 23.9.2012. The petitioner as well as Vijai Singh and Ajai Chandra (defendants -1 and 2) were real brothers and Sub Divisional Officer by order dated 23.9.2012 held 1/3rd share of each in the land in dispute. Thereafter, the Sub Divisional Officer directed the Lekhpal for preparation of kurra. Lekhpal has prepared kurra and submitted his report dated 4.6.2013. In the meantime, Umesh Sharma (respondent -6) filed an application for substitution of his name as legal representative of Vijai Singh (respondents) on the basis of the sale deed executed by him in respect of his 1/3rd share in the land in dispute. On his application the Sub Divisional Officer by order dated 1.9.2014 modified the preliminary decree and in place of Vijai Singh, the name of Umesh Sharma has been substituted and his share was held as 1/3. Thereafter Umesh Sharma has filed an objection to the kurra prepared by Lekhpal in which he has raised the plea that the land in dispute is situated adjacent to canal and demanded his kurra by the side of the canal. Thereafter the matter was heard by the Sub Divisional Officer, who after hearing the parties by order dated 18.6.2015 set aside the kurra prepared by Lekhpal and directed the Lekhpal to prepare fresh kurra. The petitioner filed a revision against the aforesaid orders dated 1.9.2014 and 18.6.2015, which has been dismissed by the Board of Revenue by order dated 21.7.2015. Hence, this writ petition has been filed.
(3.) The Counsel for the petitioner submits that after service of summons upon the defendants none of the defendants appeared before the Trial Court. Therefore, the trial Court by order dated 19.9.2012 proceeded ex parte against the defendants. None of the defendants filed any application for recall of the order dated 19.9.2012 and ex parte preliminary decree dated 23.9.2012 was passed. Umesh Sharma (respondent -6) is pendente lite transferee of Vijai Singh. On his application the preliminary decree has been recalled and modified by the order dated 1.9.2014. So far as the kurra prepared by Lekhpal is concerned, the petitioner has been in possession of the land in his share by the side of canal and the kurra was prepared on the basis of previous possession according to the principles as given under Rule 131 of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as "the Rules"). The Sub Divisional Officer has illegally set aside the kurra prepared by the Lekhpal and directed for preparation of fresh kurra and the revision filed by the petitioner has been dismissed.;