JUDGMENT 1. - Heard learned Counsel for the parties. 2. The facts giving rise to this petition, by one Ladu Ram S/o Jiya Ram challening the order passed by the Board of Revenue dated 8th March 1995 and order passed by Sub-Divisional Officer dated 28th March 1987 Annx. 3 & Annx. 1 respectively, may be summarised as under. 3. The land in a joint Khata was held by two brothers Ramu Ram and Raju Ram, Ramu Ram had three sons; Bhagirath, Phusa Ram and Dalu Ram, Bhagirath's sons are respondents No. 4 to 6, Phusa Ram's sons are respondents No. 7 to 10 and Dalu Ram's sons in the present petition are respondents No. 15 to 18. Raju Ram had only one son Jiya Ram. Jiya Ram had two sons Uda Ram and Ladu Ram. The said land was partitioned by a decree passed by the Court of Sub-Divisional Officer, Suratgarh on 23.8.1976 in Suit No. 12/1972 under which sons of Dalu Ram, who are respondents No. 15 to 18 in this petition, were, allotted 42 bighas and 14 biswas of land in their share comprised in Murabbas No. 98/385, 99/385 and 98/386 in Chak 8 SPD. During the pendency of the partition suit, the respondents No. 15 to 18 have sold 44 bighas and 11 biswas of land in favour of respondent No. 3 Manphool S/o Puran Ram and his three brothers Mani Ram, Bhup Singh and Girdhari, respondents No. 12 to 14. After the decree of partition was passed on 23.8.1976, the land falling to the share of respective share-holders was mutated in their respective names. Since the 'transferees from respondents No. 15 to 18 namely Surjaram, Ramrakh and Hari Ram and Hetram, all sons of Dalu Ram, had not been brought on record during those proceedings, the mutation of land falling to share of Dalu Ram/his sons was recorded in their names, and other land was also recorded in the names of the parties to the suit. Raju Ram and Ramu Ram both have expired. After this mutation was made In land records in accordance with the decree passed in the partition suit, a suit was filed by the respondent No. 3 Manphool Ram impleading all the parties to the partition suit as well as three co-purchasers with him as defendants. Raju Ram and Ramu Ram both have expired. After this mutation was made In land records in accordance with the decree passed in the partition suit, a suit was filed by the respondent No. 3 Manphool Ram impleading all the parties to the partition suit as well as three co-purchasers with him as defendants. The suit was for declaration of his Khatedari rights in the 44 bighas and 11 biswas of land transferred to them during the pendency of the suit by sons of Dalu Ram and correcting the land records to that extend. Modification of the decree passed in suit No. 12 of 1972 was also sought by reducing the share granted to sons of Jiya Ram by reducing the allotted share from 34 bighas 17 biswas to 11 bighas only to make good deficiency in the share of land allotted to Dalu Ram and his sons, which was less than the sale of land made in them by sons of Dalu Ram. The aforesaid suit was decreed by the Sub-Divisional Officer on 28th March, 1987. Present petitioner, son of Jiya Ram was proceeded ex-parte. Thereafter, having come to know about this modification resulting in reduction in the shares allotted to the present petitioner and his brother respondent No. 11 Nand Ram (Uda Ram), who were defendants No. 8 & 9 respectively in the suit filed by Manphool Ram, Ladu Ram the present petitioner filed an application for setting aside the ex-parte decree passed against him inter alia on the grounds that the notice of the suit had not been served on him. Learned Sub Divisional Magistrate vide his order dated 4.1.1992 found that the notices of the suit had not been served on defendant Ladu Ram, the present petitioner, condoned the delay in making application for setting aside ex-parte decree and set aside the ex-parte decree passed in favour of Manphool Ram and his brothers. Against the said order dated 4.1.1992 the plaintiff Manphool Ram preferred a revision before the Board of Revenue, which allowed the revision and set aside the order dated 4.1.1992 passed by the SDO setting aside the ex-parte order and restored the decree passed by him on 28th March, 1987 by finding that notices for the hearing of 29.10.1986 were served on the brother of Ladu Ram and therefore, the service was sufficient. In these circumstances, this petition has been filed. 4. In these circumstances, this petition has been filed. 4. Reply has been filed on behalf of the contesting respondent No.3. 5. In the first instance, I am of the opinion that the Board of Revenue was not justified in setting aside the order passed by Sub-Divisional Officer on 4.1.1992 by which the ex-parte decree dated 28th March, 1987 has been set aside. The trial Court has clearly found that in the first instance the notices which are said to be served on the petitioner for the date of hearing on 29.10.1986 by Uda Ram, the brother of the petitioner who is residing in the same house. This only goes to show that the notices have not been served personally on the petitioner. The report of the process server also does not show that he had made any efforts to serve the notice personally on the defendant Ladu Ram but he was absent from residence, and that it was not practicable to serve the notice personally on the defendant at his residence because of his absence and there was no likelihood of his being found at the residence within a reasonable time. In the absence of such material it is not possible to accept that the service offered to the brother of the petitioner was any service. The Scheme of Order 5 Civil Procedure Code providing for the service of notices of the Court clearly envisages as for as practicable and possible notices are to be served personally on the person to whom it has been issued. It is only in the given circumstances that service by other methodology is deemed to be sufficient. Order 5 Rule 11 requires issuance of notice or summons to each defendant individually and not jointly notwithstanding that they may be the members of the same family or related to each other or may be having joint interest in the litigation, Rule 12 envisages in unequivocal terms that wherever it is practicable, the service shall be made to the defendant in person unless he is an agent empowered to accept service. In the latter event, service on such agent is considered to be sufficient. Rule 13 envisages service of summons on defendants in a suit relating to any business or work against a person who does not reside within the local limits of the Court. In the latter event, service on such agent is considered to be sufficient. Rule 13 envisages service of summons on defendants in a suit relating to any business or work against a person who does not reside within the local limits of the Court. The service on any manager through whom defendant carries his business is treated sufficient. Rule 15 which is relevant for the purpose of considering the effect of acceptance of notice by Uda Ram reads as under:Rule. 15. Where service may be on an adult member of defendant's family.Wherein any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or famals, who is residing with him.Explanation: A servant is not a member of the family within the meaning of this rule. 6. A perusal of the aforesaid rule make it obvious that this mode can be adopted only where the process server finds firstly that the defendant was absent at his residence when he offered service of summons and secondly he further satisfies himself that there is no likelihood of service at his residence within a reasonable period. It is only then that he can effect service on any adult member of the family who is residing with him. Merely because of temporary absence for a short, duration does not absolve the process server from revisiting the house at such interval to make an attempt to effect service personally. No such endorsement is to be found on the notice for hearing dated 29.10.1986 from the process server. Though the term 'member of family' has not been defined but ordinarily in the absence of any material to suggest that brother's are members of a joint family and residing together as members of joint family, the brother cannot be treated as a member of brother's family. A son can be member of father's family. Though the term 'member of family' has not been defined but ordinarily in the absence of any material to suggest that brother's are members of a joint family and residing together as members of joint family, the brother cannot be treated as a member of brother's family. A son can be member of father's family. A son or unmarried daughter, wife or daughter-in-law or the descendants or male line of descend may all the member of the family of the said person but in the absence of proof of jointness, a brother cannot be treated a member of the family, even if residing in the same house. 7. Be that as It may, this service for 29.10.1986 was itself not considered sufficient by the trial Court and therefore, notices had been issued afresh, according to the respondent No. 3 and the Board of Revenue as well as by the SDO, for the next date of hearing 13.1.1987, Hence the Board of Revenue was clearly in error in accepting the service of notice for the hearing of 29.10.1986 sufficient, when the same was not considered sufficient by the trial Court in first instance. After fresh notices were issued for the hearing of 13.1.1987 there was no occasion for the Board to fall back or the question of service for the hearing dated 29.10.1986 and invoke proviso to Order 9 Rule 13 to defeat a substantive right, which is so glaring in the present case as shall be seen presently. The Rule of procedure are handmaid of Justice and not to perpetuate injustice. 8. About service of notice for the hearing dated 13.1.1987 though the summons have been returned with a thumb mark alleged to be of the petitioner, served personally at 'dhani' at 3 p.m., and it was accepted as sufficient service in view of Order 5 Rule 12. However, the petitioner has stated that no such 'dhani' was in existence as on 5.1.1987 the date of the alleged service and the defendant was residing in the village with his family. It was also stated by the petitioner that the persons in wose presence the service is said to have been effected on Ladu Ram at the said 'dhani' are neither residents of Chak 8 SPD nor of the 'dhani'. This statement of fact by the petitioner was not controverted by providing any material in response. It was also stated by the petitioner that the persons in wose presence the service is said to have been effected on Ladu Ram at the said 'dhani' are neither residents of Chak 8 SPD nor of the 'dhani'. This statement of fact by the petitioner was not controverted by providing any material in response. Neither the statement of Process Server or the attesting witness were recorded nor their affidavits produced. In the absence of any material to the contrary, the learned SDO relied on the version of the petitioner that It was not possible to service the petitioner at the place at which it is alleged to have been served on 5.1.1987 and has found in favour of the petitioner that notices were not served for the hearing of 13.1.1987 also. The Board of Revenue has totally ignored this fact while considering the effect of report at the back of notice for the hearing dated 13.1.1987 and has swayed by the fact that since Uda Ram had accepted earlier notice which was addressed to Ladu Ram and Uda Ram had put an appearance through a counsel, service on Ladu Ram is sufficient. In my opinion, the approach of the learned Member of the Board of Revenue is patently erroneous and contrary to the provisions of Order 5 concerning the service of summons and the material on record and also by ignoring the fact that the petitioner has specifically come with assertion that as on 5.1.1987 'dhani' was not even In existence where the notices have been alleged to be served on the petitioner and further that the person in whose presence notices are alleged to have been served were not the residents of the village Chak 8 SPD nor of the 'dhani'. In these circumstances, there was no material with the Board of Revenue to have come to a different conclusion than what has been reached by the SDO. 9. Learned Counsel for the respondent No. 3 vehemently urged that in view of proviso to Order 9 Rule 13 this was merely an irregularity in service of summons. The ex-parte decree passed against the petitioner could not have been set aside. 10. This contention is stated to be rejected. Non-service of summons cannot be equated with the irregularity in the service of summons. The ex-parte decree passed against the petitioner could not have been set aside. 10. This contention is stated to be rejected. Non-service of summons cannot be equated with the irregularity in the service of summons. Obviously, when Uda Ram had accepted the summons of Ladu Ram but the same had not been accepted to be sufficient and notices were issued afresh for 13.1.1987, it was not open for the Court now to turn back on tendering the summons of petitioner to his brother Uda Ram and to raise the plea of irregularity of service for date of hearing 29.10.1986. Even otherwise, as pointed out above, service on Uda Ram in the present facts and circumstances cannot be considered to be a service at all on Ladu Ram and it cannot be considered to be a case of service through alternative mode. The alleged service on dated 5.1.1987 has too not been held to be service on the petitioner at all. In those circumstances, the proviso has no application to the facts of the present case. 11. Even on merit, I am of the opinion that the order dated 28th March, 1987 passed by the SDO in the first instance on the basis of facts noticed by him was wholly without jurisdiction and cannot be sustained to the extend it reduced the share allotted to petitioner alongwith Uda Ram for the purpose of allotting the same to respondents No. 15 to 18, so as to confer total rights on plaintiff-respondent No. 3 and defendant-respondents No. 12 to 14 under sale from respondent No. 15 to 18, exceeding the title which vendors themselves possess. On the undisputed facts, a decree for partition has been passed between the joint holders of Khata and their shares have been determined as per the decree and the mutations have been made in favour of respective persons according in shares allotted to them. There could not be any modification of the decree dated 23.8.1976 through a suit filed by persons claiming through one or more parties to said decree. A person who has purchased the land in question during the pendency of the suit from one of the parties to the suit can not lay claim to anything more than what has been decreed on 23.8.1976 in Suit No. 12/72 in favour of the vendors. A person who has purchased the land in question during the pendency of the suit from one of the parties to the suit can not lay claim to anything more than what has been decreed on 23.8.1976 in Suit No. 12/72 in favour of the vendors. Manphool and his brothers, who claim their right to title only through respondents No. 15 to 18 sons of Dalu Ram, cannot claim on the basis of that sale deed anything more than such share in the joint property what Dalu Ram or his sons had been allotted under the decree for partition of aforesaid joint property in respect of the subject matter of that also deed. It is not in dispute nor it has been found other way either by the Court in its order dated 28th March, 1981 that the land allotted to respondents No. 15 to 18 totalled only 42 bighas and 14 biswas, Whatever may be the measure of land stated in the sale deed executed by respondents No. 15 to 18, they could not have transferred any rights better than what they themselves had. There rights stood determined vis a vis the present petitioner and his brother by the decree dated 23.8.1976 to which Dalu Ram and his sons were also parties. Therefore, question of determining the right of predecessor in title of the plaintiff Manphool Ram and his co-purchasers vis a vis the present petitioner and his brother could not have been made subject matter of a separate suit for altering the rights determined by the decree dated 28.3.1987. The SDO had no jurisdiction to intermeddle with the rights settled between the parties through decree dated 23.8.1976 which had become final by modifying that decree. The order on reading itself shows that the SDO has hot only permitted mutation of the land falling to the share of sons of Dalu Ram in favour of their transferees which is not the subject matter before me in this case, but has clearly directed to reduce the share of the present petitioner and his brother from 34 bighas 17 biswas to 33 bighas. This was patently without jurisdiction and cannot be sustained. It is unknown to any principle known to law to meddle with the decree passed between the parties which has become final in a separate suit at the instance of their successors in title in a subsequent suit. This was patently without jurisdiction and cannot be sustained. It is unknown to any principle known to law to meddle with the decree passed between the parties which has become final in a separate suit at the instance of their successors in title in a subsequent suit. No suit was entertainable in that regard by any parties to earlier suit or their successors in title except for setting aside the said decree on the ground of fraud. 12. It may be noticed that it is not a suit for setting aside decree obtained by fraud or collusion but a suit seeking modification of decree validly made. Such an order cannot be allowed to be sustained. 13. Accordingly, this petition succeeded and orders 28.3.1987 and 8.3.1995 Annxs. 1 & 3 both are set aside to the extent it reduced the shares allotted to the petitioner and his brother respondent No. 11 from 34 bishas 17 bigwas in 33 bighas. However, it will not affect the right of the respondents No. 3 and 12 to 14 to claim mutation of land transferred to them by respondents No. 15 to 18 to the extent land has been allotted to these vendors under decree dated 23.8.1976 in Suit No. 12/1972 in accordance with law. 14. In my opinion, through this mechanism the respondent No. 3 has tried to divest the petitioner of his rights declared by a final decree vis a vis predecessors in title of the plaintiff, to his knowledge Respondent No. 3 shall pay the cost of this petition to the petitioner which is quantified at Rs. 3,000.Writ petitions dismissed. *******