- (1.) KRISHNA Murari, J. Heard Sri T. B. Pandey, learned Counsel for the petitioner.
(2.) THOUGH the case has been taken up in the revised list but no one appeared on behalf of the respondents. The facts are that the petitioner filed a suit under Section 229-B of the U. P. Z. A. & L. R. Act (for short 'the Act') in the Court of Assistant Collector, 1st Class, Azamgarh on the allegation inter alia that he is the sirdar in the land in dis pute and the entry of the name of respondent No. 7 is forged and fabri cated and is liable to be expunged. The suit was contested by respondent No. 7 raising an objection apart from others that the land in dispute was not land within the meaning of Section 3 (14) of the Act and as such, the Court has no jurisdiction to entertain the suit. One of the issues namely, issue No. (4) framed by the trial Court was whether the land in suit are land within the meaning of U. P. Z. A. & L. R. Act. In accordance with the provision of Section 331-A of the Act, the trial Court referred the issue for being decided by the sub- divisional of ficer. " The sub-divisional officer sub mitted a report dated 7-1-1968 that the property in dispute is not being used for the purpose of agriculture and as such, is not covered under the definition of the land given under the Act. On the basis of the said finding the trial Court vide order dated 22-4-1970 dismissed the suit. Feeling aggrieved the petitioner filed an appeal which was dismissed on 1969. Second appeal filed by the petitioner against the said order was also dismissed by the Board of Revenue vide order dated 24-6-1978. It has been urged by learned Counsel for the petitioner that under Section 331 -A of the Act only the Assis tant Collector in charge of the sub division is empowered to decide the issue and in case where the suit has been instituted in the Court of Assistant Collector in charge of the said division himself he is to decide the question him self in accordance with the provision of Section 143 or 144 of the Act. It has fur ther been urged that under the provision of the Act the Sub-Divisional Officer had no jurisdiction to decide the issue since the suit was filed in the Court of Assistant Collector himself he wrongly referred the issue to sub-divisional officer and the same ought to have been decided himself.
(3.) I have considered the argument advanced by learned Counsel for the petitioner and perused the record. Section 331-A of the Act reads as follows: 331-A. Procedure when plea of land being used for agricultural purposes is raised in any suit.- (1) If in any suit, relating to land held by a bhumidhar, instituted in any Court the question arises or is raised whether the land in question is or is not used for pur poses connected with agriculture; horticul ture or animal husbandry which includes pis ciculture and poultry framing and a declara tion has not been made in respect of such land under Section 143 or 144 the Court shall frame an issue on the question and send the record to the Assistant Collector in charge of the sub-division for the decision of that issue only: Provided that where the suit has been instituted in the Court of Assistant Collector in charge of the sub- division, it shall proceed to decide the question in accordance with the provisions of Section 143 or 144, as the case may be. (2) The Assistant Collector in charge of the sub- division after reframing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under Sections 143 or 144, as the case may be and return the record together with his finding thereon to the Court which referred the issue. (3) The Court shall then proceed to decide the suit accepting the finding of the Assistant Collector in charge of the sub division on the issue referred to it. (4) The finding of the Assistant Collec tor in charge of the sub-division on the issue referred to it shall, for the purposes of appeal be deemed to be part of the finding of the Court which referred the issue. For a bare reading of the aforesaid section, it is clear that if a question arises whether the land in question is or is not being used for the purpose connected with agriculture; horticulture or animal husbandry, which includes pisciculture and poultry fram ing and a declaration has not been made in respect of the land under Sec tion 143 or 144, the Court shall frame an issue on the question and send it to the Assistant Collector if, charge of the sub division for the decision of that issue only. The proviso to sub-section (1) provides that if the suit has been in stituted in the Court of Assistant Collec tor in charge of the sub-division, it shall proceed to decide the question in ac cordance with the provision of Sections 143 or 144 as the case may be. It is thus clear that it is the Assistant Collector in charge of the sub- division who is em powered by the provision of the enact ment to decide the issue relating to the question as to whether the land in dis pute will be covered within the definition of the land given under the Act or not. There appears to be force in the argu ment of the learned Counsel for the petitioner that this issue was wrongly referred to the sub-divisional officer and. the same ought to have been decided by respondent No. 3 himself where the suit was pending. This aspect of the matter was raised before the Board of Revenue but it has failed to consider the effect of the same.;