S.P PANDEY, J. - (1.) THIS is a second appeal under Section 331 of UPZA and LR Act preferred against the judg­ment and decree dated 28-6-1996 passed by the learned Additional Commissioner, Jhansi Division, Jhansi, arising out of the judgment and decree dated 17-6-1996/27-5-1995 passed by the learned trial Court in a suit under Section 176 of the UPZA and LRAct.
(2.) BRIEF and relevant facts of the case are that the plaintiff, Babu Lal instituted a suit under Section 176 of the UPZA and LR Act for division of his 1/5 share in the suit land as detailed at the foot of the plaint. The learned trial Court after com­pleting the requisite trial observed that plot Nos. 494 and 495 are abadi on the spot and as such after a declaration under Section 143 of the UPZA and LR Act, the khata in question is possible to be partitioned on 27-6-1996. Aggrieved by this order an appeal was preferred. The learned Additional Commis­sioner by means of his judgment and order dated 28-6-1996 upheld the aforesaid order passed by the learned trial Court and dis­missed the appeal. Hence this second appeal. I have heard the learned Counsel for the parties and have also perused the records on file. For the appellant, it was contended that the aforesaid impugned order passed by the learned Courts below are bad in law and against the facts and circumstances of the instant case ; that both the learned Courts below should have excluded the non-agricultural area ; that both the learned Courts below have il­legally denied to exercise jurisdiction vested in them by law and in these cir­cumstances, the aforesaid impugned or­ders passed by the learned Courts below be set aside. In reply, the learned Counsel for the respondent submitted that two separate suits should have been filed by the plaintiff-appellant but only one suit was preferred and even then the respondents have no objection in division of the remaining plots except the abadi plots.
(3.) I have closely and carefully ex­amined the contentions raised by the learned Counsel for the parties and the relevant records on file. Admittedly, there is abadi on plot Nos. 494 and 495 and these plots cannot be partitioned between the parties in accordance with law. Consider­ing the entire facts and circumstances of the instant case, it would be quite just and proper to partition the aforesaid remaining plots except the Abadi plots concerning both the parties. In respect of plot No. 494 and 495, the required declaration under Section 143 of the UPZA and LR Act may be sought by the parties concerned. To my mind, the learned Courts below have not examined the matter in question in correct perspec­tive of law and have illegally dismissed the case of the plaintiff-appellant.;