IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 387 of 2003. Prem Singh S/O Sri Kesri, R/O Village Dabhora Mustahakam, Tehsil Kashipur, District Udham Singh Nagar.. … Petitioner. Vs. Om Prakash and others. …Respondents. Sri B.S. Parihar & Mohd. Azim, learned counsel for the petitioner. Sri H.S.Dhillon, holding brief for Sri Anurag Bisaria, learned counsel for respondent nos. 1 to 3. Sri Sudhir Kumar, Brief Holder for the State for the respondent no.5. Date November 21, 2008. P.C.: Hon’ble B.S.Verma, J. Heard Sri B.S.Parihar and Sri Mohd. Azim, learned counsel for the petitioner and Sri H.S.Dhillon, Advocate, holding brief for Sri Anurag Bisaria, learned counsel for the respondent nos. 1 to 3 and perused the record. This writ petition has been filed for for setting aside the judgment and order dated 22-9-1997 passed by the Additional Commissioner (Administration) Kumaun Division, Nainital (Annexure No. 6) and the order dated2-4-2003 passed by the Additional Revenue Commissioner, Uttaranchal, Dehradun (Annexure No. 7 to the writ petition) and to maintain the order dated 2-5-1997 passed by the Assistant Collector, 1st Class, Kashipur ( Annexure No. 5). Brief facts giving rise to the present writ petition are that the petitioner had filed a suit for partition against the respondent nos. 1 to 3 under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act (for short the Act) of their joint holding. Preliminary decree was passed on 13-7-1993 and it has been held that the petitioner as well as the respondent no. 1 to 3 have equal share in the land in dispute. This fact is not disputed and the learned counsel for the petitioner as well the learned counsel for the respondents are not disputing the share of the parties in the disputed land. 2 The final decree was passed on 20-8-1993. According to the respondent nos. 1 to 3, they were not heard and no opportunity was given to them to file objection on Kurras and no fresh notice was issued for preparing the lots by the Lekhpal on spot. It appears that the suit proceeded ex parte against the respondent nos. 1 to 3 hence they filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte final decree. The said application was dismissed in default of respondent nos. 1 to 3 by order dated 31-3-1994. They had moved restoration application to recall the order of dismissal of application under Order 9, Rule 13 C.P.C., which was dismissed vide order dated 2-5-1997. In the order, it was held that the respondents were served sufficiently. Aggrieved by the order dated 2-5-1997, the respondent nos. 1 to 3 preferred appeal before the Additional Commissioner (Administration) Kumaun Division, Nainital bearing Z.A. Appeal No. 83/44 of 1996-97. The appellate court after hearing the parties, allowed the appeal by order dated 22-9-1997, set aside the order dated 20-8-1993, 31-3-1994 and 2-5-1997, whereby the final decree was passed and restoration application to set aside the decree was dismissed, and remanded the case on the ground that that service was not sufficient. The appellate court directed the trial court to hear the matter afresh on merits. Further, aggrieved by the said order, the petitioner preferred Z.A. Appeal No. 4/2001-02, Prem Singh Vs. Om Prakash and others before the Additional Revenue Commissioner, Uttaranchal, Dehradun, which was also dismissed vide order dated 2- 4-2003, hence this petition. Having heard learned counsel for the parties and after perusal of the impugned orders, it reveals from the order passed by appellate court that there was no sufficient service on the respondent 3 nos. 1, 2 and 3. The application under order 9, Rule 13 was rightly allowed. It is made clear, as has been stated before this Court by learned counsel for the parties that there is no dispute of shares between the parties, since all of them are real brothers. The only dispute remains of Kurras, which is to be prepared in final decree. Therefore, the orders of the appellate Court as well as Additional Revenue Commissioner (Annexure Nos. 6 and 7) do not warrant any interference. The Assistant Collector shall take steps for preparation of Kurras of the petitioner as well as respondent nos. 1, 2 and 3 as per their share on the basis of preliminary decree in accordance with law and shall expedite the proceeding of partition suit after hearing the parties and giving opportunity of filing objection, if any, against the lots prepared by Lekhpal preferably within a period of four months from the date of production of certified copy of this order before the Assistant Collector concerned. With the said direction and observations, the writ petition is dismissed. Costs easy. (B.S.Verma,J.) RCP 4