Full Judgment Text
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PETITIONER:
CHANDRIKA SINGH AND ORS.
Vs.
RESPONDENT:
RAJA VISHWANATH PRATAP SINGH AND ANR
DATE OF JUDGMENT22/04/1992
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
FATHIMA BEEVI, M. (J)
CITATION:
1992 AIR 1318 1992 SCR (2) 640
1992 SCC (3) 90 JT 1992 (3) 55
1992 SCALE (1)883
ACT:
U..P.Zamindari abolition and land reforms Act,1950:
Section 3(14),143,144,333(1) and 331-A: conditions of ap-
plicability of section 331-A-land comprising of building and
land surrounding the building whether falls within the
definition ’land ’-jurisdiction over such matters-whether
vested with civil courts or revenue courts.
Civil Procedure code,1908:
Section 115-Revision-Civil Court exercising jurisdiction not
vested in it by statute-Illegality committed in exercise of
jurisdiction-Rectification of by High Court in exercise of
its Revision Jurisdiction -Need for.
HEADNOTE:
Respondents field a suit for possession of certain
property,stating that the father of appellant Nos.1 and 2
was in possession of the property as a care taker and that
after his death appellant Nos.1 and 2 continued in posses-
sion of the same and did not vacate inspite of promises;
instead they got their names entered in the records in
respect of the property the plaintiffs sought a decree for
ejectment as well as pendente lite and future damages for
use and occupation.The defendents-appellants contested the
suit claiming that it was not maintainable in the Civil
Court inasmuch as it related to agricultural land it was
also claimed that the entire area came within the definition
’land’ since no declaration was made under section 143 of
the U.P.Zamindari Abolition and land reforms Act,1950.The
Civil judge observed that the land occupied by the building
or appurtenant thereto was excluded from the definition
’land’in the U.P.Tenancy Act,1939 and since the house was
there even prior to the commencement of the U.P.Zamindari
Abolition and land reforms Act,1950,the same is not applica-
ble He,therefore held the land to be abadi land,the Revenue
courts had no jurisdiction over it and the Civil Court Could
entertain the suit.
641
The appellants produced extracts of the relevant
Khatauni which showed the plaintiff as bhumidhar of the suit
property.The Civil judge help that reliance could not be
placed on these and observed that under the law if the land
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appurtenant to a building is being used for agricultural
purposes it would not lose its nature of land appurtenant to
building
The appellants preferred a Revision and the High Court
dismissed the same.Against the High Court’s order,the
appellant preferred the present appeals by special leave.
On behalf of the appellants, it was contended that all
the three conditions stipulated in section 331-A of the
U.P.Zamindari abolition and Land Reforms Act,were fulfilled
in this case; that no declaration has been made under
section 143 or 144 of the Act in respect of the suit land;
that the question whether the land was used or not for
purpose of agriculture etc.ought to have been considered
since the respondents claimed that it was abadi landthat
there was no justification in ignoring the entry in the
relevant khatauni and entries in the revenue record;and that
the civil judge had no jurisdiction to decide issue nos.5
and 6.
On behalf of the respondents it was contended that
admittedly there was a building on the land in dispute and
since the land surrounding the building was appurtenant to
the building the entire area was abadi land.
Allowing the appeal,this court,
HELD:1.1.In order that section 331-A of the U.P.Zamindari
Abolition and Land reforms act,1950 may be invoked three
conditions must be satisfied,viz (i) the suit must relate to
land held by a bhumidhar;(ii)the question whether the land
in question is or is not used for purposes connected with
agriculture, horticulture or animal husbandry should arise
or be raised in the said suit and (iii) a declaration has
not been made in respect of such land under section 143 or
section 144.(650 A-C)
1.2.In respect of abadi land it is implied that the land
is not being used for purposes connected with
agriculture,horticulture or animal husbandry and in view of
the definition of ’land’contained in section 2(14) of the
act such land is not land for the purpose of the act.In
order to exclude the applicability of the act on the ground
that the land is abadi land it is necessary to determine
whether the said land is or is not being
642
used for purposes connected with agriculture,horticulture or
animal husbandry. Such a determination is envisaged by sec-
tions 143 and 144 and where such a determination has not
been made in accordance with those provisions and this ques-
tion arises before a Court in a suit it is required to be
determined in accordance with the provisions of section 331-
A.The scheme of the provision contained in section
143,section 144 and section 331-A is that the question
whether a particular land is or is not used for the purposes
connected with agriculture horticulture or animal husbandry
has to be determined either under section 143 or section 144
and where no such determination has been made,it should be
determined by following the procedure laid down in section
331-A.It is not open to a court dealing with a suit in which
the said question arises to by pass the provision of section
331-A.and to proceed to determine the said question itself (
649 E-H;650 A )
1.3.This would be so even in a case where a building
exists on the land and the land is claimed to be appurtenant
to the building because in such a case it will be necessary
to determine the extent of the land that is appurtenant to
the building i e whether the entire land or only a part of
it is so appurtenant to the building and for that reason is
not held or occupied for purposes connected with agricul-
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ture,horticulture or animal husbandry. This determination
has to be made in accordance with the provisions of section
143 and 144 or section 331-A of the Act.( 651 E )
2. In the instant case the conditions for applicability of
the provisions of section 331-A were fulfilled. In view of
entry in the khatauni for the year 1377 Fasli (Ex.A-A) which
must be presumed to be correct in view of section 44 of the
U.P.Land revenue Act,1901 the said land was held by the
respondents as bhumidhar. The question whether the suit land
is or is not held for purposes connected with agriculture
arises in the suit filed by the respondents. There is no
declaration in relation to land in dispute under section 143
of the Act.(651 F,G)
3.It was not open to the civil court to decide on its
own,the question whether the said land was held or occupied
for purposes connected with agriculture horticulture or
animal husbandry and after holding that it is not so
held,refuse to follow the procedure laid down in section
331-A on the ground that the said provision has no applica-
tion to the land in dispute the only course which was open
to the civil judge was to frame
643
an issue on the question whether the in land dispute is or
is not used for purposes connected with agriculture, hortic-
uture or animal husbandry and send the record to the assist-
ant collector in charge of the subdivision for decision on
that issue and decide the suit in the light of the finding
recorded by the Assistant Collector on that issue. By decid-
ing this question himself the civil judge has exercised
jurisdiction not vested in him by law and in not following
the procedure laid down in section 331-A he has committed
illegality in exercise of his jurisdiction which error was
required to be rectified by the high court in exercise of
its revisional jurisdiction under section 115 CPC.( 651 H;
652 A-C)
4.The judgment and order of the high court and the order
passed by the civil judge are set aside. The civil judge is
directed to frame an issue on the question whether the suit
land is or is not used for purposes connected with agricul-
ture, horticulture or animal husbandry which includes pisci-
culture and poultry farming and after framing the said issue
send the record to the assistant collector in charge of sub
division for the decision on that issue ( 652 D-E )
JUDGMENT:
&
CIVIL APPELLATE JURISDICTION : Civil appeal no 3785 of 1983.
Form the judgment and order dated 2.4.1980 of the Allaha-
bad high court in civil revision No 3770 of 1978.
J.P.Goyal T.N.singh B.M.Sharma and S.N.Singh for the Appeal
lants.
Yogeshwar Prasad Mrs.Rani Chhabra and Ms.Rachana Gupta for
the Respondents
The judgement of the court was delivered by
S.C.AGRAWAL,J.This appeal by special leave is directed
against the judgment of the Allahabad High Court dated April
2,1980.It raises the question whether the civil court has
jurisdiction to decide the issue whether the land in dispute
in a suit or proceeding before it is a abadi land or some
other land. It involves the interpretation of section 331-A
of the U.P.Zamindari Abolition and land reforms Act.1950
(U.P.Act No.1 of 1951) hereinafter referred to as’the Act.
644
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The dispute relates to a plot of land bearing settle-
ment No. 141/176-177 situate within the limits of Municipal
Corporation of Varanasi. The said land consists of a resi-
dential house, Shiwala (temple), pucca well and open land
enclosed by a boundary wall. In the municipal records, it is
numbered as 18/106, Mohalla Sarang Talab, Varanasi. Respond-
ents Nos. 1 and 2 filed a suit (No.157 of 1973) for posses-
sion of the said property in the court of Civil Judge,
Varanasi against the appellants wherein it was alleged that
Aparbal Singh, father of appellant no.1, and Chandra Deep
Singh (deceased), who was appellant no.2, in the appeal and
is now represented by his legal representatives, was in
possession of the said property as a care-taker and he was
managing the same of behalf of the plaintiffs and after the
death of Aparbal Singh, appellants nos.1 and 2 continued in
possession of the same but they did not vacate the said
property in spite of promises and on the other hand, they
got their names entered in the records in respect of the
said property. The plaintiffs sought a decree for ejectment
as well as pendente lite and future damages for use and
occupation. The said suit was contested by the defendants.
In the written statement, it was claimed that the suit was
not maintainable in the civil court inasmuch as it related
to agricultural land. It was stated that the total area of
the disputed property is 4 Bighas 10 biswas (2.92 acres) out
of which the residential house, pucca well and the land
appurtenant to the house cover in area of 10 Biswas and the
rest of the land measuring about 4 Bighas was being culti-
vated by the defendants. It was also claimed that the entire
area comes within the definition of ’land’ since no declara-
tion was made under section 143 of the Act. It was also
claimed that Aparbal Singh and Alpanath Singh, father of
defendants nos. 3 and 4, having equal share in the land
became sirdars and after the death of Aparbal Singh, Alpa-
nath is in possession as owner Sirdar of the said land. In
the view of the said pleadings, the Civil Judge framed
Issues Nos. 5 and 6 which are as under:
Issue No.5 : Is suit land agricultural land as defined
in U.P. Act, 1951 ?
Issue No.6 : Is the suit triable by this Court so far
as suit land is concerned ?
The said issues were tried as preliminary issues and
were decided in favour of the plaintiffs-respondents and
against the appellants by the Civil Judge-I, Varanasi by his
order dated September 14, 1978. The Civil Judge
645
held that in the written statement dated September 31, 1983,
it has been alleged by the defendants-appellants that about
23 years back, the disputed house was in a very dilapidated
condition and that Aparbal Singh and Alpanath Singh invested
about Rs.15,000 and made the house habitable. On the basis
of the said allegation in the written statement, the Civil
Judge held that the disputed property had a house, though in
a dilapidated condition, before July 1,1952 the date of the
enforcement of the Act and he considered the matter in the
light of the provisions contained in the U.P. Tenancy Act,
1939. After referring to the definition of ’land’ contained
in Section 3(1) (0) of the said Act, the Civil Judge ob-
served that the land occupied by building or appurtenant
thereto was excluded from the said definition and, there-
fore, the disputed property did not come within the defini-
tion of land as defined in the U.P.Tenancy Act and was abadi
and it was not land as defined in the Act and the revenue
court’s have got no jurisdiction and the suit could be
entertained by the Civil Court. The defendants-appellants
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produced extract of Khatauni for the year 1377 Fasli (Ex.A1)
wherein the plaintiffs have been recorded as bhumidar of the
suit property. The copies of the revenue record (Exs. 2 to
5) were also produced. The civil Judge held that the said
entries were useless and no reliance could be placed on
them. It appears that the property in dispute was also
inspected by the Amin, who prepared a map and submitted his
report wherein it was stated that the suit property is
enclosed by a boundary wall and land appurtenant to the
building has been shown as being used for agricultural
purposes also. While dealing with the said report of the
Amin, the Civil Judge observed that under law if the land
appurtenant to a building is being used for agricultural
purposes, it will not lose its natured of being land appur-
tenant to building. Feeling aggrieved by the said order of
the Civil Judge, the appellants filed a revision in the High
Court which was dismissed by the High Court. Agreeing with
the Civil Judge the High Court has held that the suit land
was appurtenant to a building and a Shiwala and was not
being held or occupied for purposes connected with agricul-
ture, horticulture or animal husbandry and hence, prime
facie, it was not land as defined in the Act and, therefore,
Section 331-A had no application. The High Court also ob-
served that the lower court had rightly refused to rely on
the revenue records from 1960 onwards which showed that the
land was recorded as the plaintiffs’ bhumidari because on
the defendants’ own pleadings the land was appurtenant to a
house and was rightly held to be abadi property in respect
of which civil court continued
646
to retain jurisdiction and try disputed title.
By order dated April 4, 1983 leave to appeal has been
limited to the question whether the court had jurisdiction
to decided the issue whether the land is abadi land or some
other land.
The expression "Land" is defined in clause (14) of
section 3 as follows:
"Land’ except in Sections 109, 143 and 144 and
Chapter VII means land held or occupied for
purposes connected with agriculture, horticulture
or animal husbandry which includes pisciculture
and poultry farming".
Section 143 Provides as under:
"143. Use of holding for industrial or residential
purpose -
(1) Where a bhumidhar with transferable rights
uses his holding or part thereof for a purpose not
connected with agriculture, horticulture or animal
husbandry which includes pisciculture and poultry
farming, the Assistant Collector in charge of the
sub- division may, suo moto or on an application,
after making such enquiry as may be prescribed,
make a declaration to that effect.
(I-A) Where a declaration under sub-section (1)
has to be made in respect of a part of the holding
the Assistant Collector in charge of the sub-
divisions may in the manner prescribed demarcate
such part for the purposes of such declaration.
(2) Upon the grant of the declaration mentioned
in sub-s.(1) the provisions of this Chapter (other
than this section) shall cease to apply to the
bhumidhar with transferable rights with respect to
such land and he shall thereupon be governed in
the matter of devolution of the land by personal
law to which he is subject."
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Section 144 provides for making of similar declaration
where land held by a bhumindar which is not used for pur-
poses connected with agriculture, horticulture or animal
husbandry has become land used for such purposes.
647
The bar to the jurisdiction of Civil Court is contained
in Section 331(1) which provides as under:
"331 Cognizance of suits, etc. under this Act -
(1) Except as provided by or under this Act no
court other then a court mentioned in Column 4 of
Schedule II shall, notwithstanding anything con-
tained in the Civil Procedure Code, 1908 (V of
1908), take cognizance of any suit, application, or
proceedings mentioned in Column 3 thereof, or of a
suit, application or proceedings based on a cause
of action in respect of which any relief could be
obtained by means of any such suit or application".
Provided that where a declaration has been
made under Section 143 in respect of any holding
or part thereof, the provisions of Schedule II
insofar as they relate to suits, applications or
proceedings under Chapter VIII shall not apply to
such holding or part thereof.
Explanation:-If the cause of action is one in
respect of which relief may be granted by the
revenue court, it is immaterial that the relief
asked for from the civil court may not be
identical to that which the revenue court would
have granted.
Section 331-A prescribes the procedure to be followed
by the Court when a plea that the land is not being used for
purposes connected with agricultural, horticulture or animal
husbandry arises or is raised in any suit relating to land
held by a bhumidhar. It reads as under:
"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 purposes connected with
agriculture, horticulture or animal husbandry,
which includes pisciculture and poultry farming,
and a declaration 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
648
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 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 S.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
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issue referred to it.
(4) The finding of the Assistant Collector 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."
The aforesaid provisions show that under section 331(1)
exclusive jurisdiction in respect of suits, applications and
proceedings referred to in Schedule II of the Act has been
conferred on the courts specified in the said Schedule and
the said proceedings, suits and applications cannot be
entertained, by the civil courts. The proviso to s.331(I)
lifts the said bar in relation to any holding or part
thereof where a declaration has been made under section 143.
Section 143 empowers the Assistant Collector after making
such enquiry as may be prescribed, to make a declaration
that a holding or part thereof is being used or held by a
bhumidhar for purposes not connected with agriculture,
horticulture or animal husbandry. Where such a declaration
is made in respect of a part of the holding, the Assistant
Collector is required to demarcate the said part. The
effect of the grant of such a declaration is that the provi-
sions of Chapter VIII (except s.143) cease to apply to the
bhumidhar with transferable rights with respect to such
land.
Section 331-A deals with a situation where a suit
relating to land held
649
by a bhumidhar has been instituted in any court and a ques-
tion arises or is raised whether the land in question is
used or is not used for purposes connected with agriculture,
horticulture or animal husbandry and a declaration has not
been made in respect of such land under ss.1433 or 144 of
the Act. Since there is no declaration under Section 143 the
proviso to sub-section (1) of Section 331 would not be
applicable and the bar to the jurisdiction of the Court
placed under sub-section (1) of Section 331 would be opera-
tive. Section 331-a is intended to serve the same purpose
as Section 143 and this is done by requiring the Court to
frame an issue on the said question and send the record to
the Assistant Collector in-charge of the sub-division for
the decision on that issue only and by laying down that the
Assistant Collector shall decide the said issue in the
manner laid down for making a declaration under s.143 or
s.144, as the case may be. The court in which the suit is
pending has to decide the suit accepting the finding record-
ed by the Assistant Collector in-charge of the sub-division
on the issue referred to it but the said finding can be
challenged in appeal against the decision of the said Court.
This would mean that when there is no declaration under
section 143 the bar to jurisdiction of courts placed under
sub-section (1) of section 331 can be lifted by following
the procedure laid down in Section 331-A.
In respect of Abadi land it is implied that the land is
not being used for purposes connected with agriculture,
horticulture or animal husbandry and in view of the
definition of ‘land’ contained in Section 2(14) of the Act
such land is not land for the purpose of the Act. In order
to exclude the applicability of the Act on the ground that
the land is Abadi land it is necessary to determine whether
the said land is or is not being used for purposes connected
with agriculture, horticulture or animal husbandry. Such a
determination is envisaged by Sections 143 and 144 and where
such a determination has not been made in accordance with
those provisions and this question arises before a court in
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a suit, it is required to be determined in accordance with
the provisions of s.331-A The scheme of the provisions
contained in s.143, s.144 and s.331-A is that the question
whether a particular land is or is not used for the purposes
connected with agriculture, horticulture or animal husbandry
has be determined either under s.143 or s.144 and where no
such determination has been made, it should be determined by
following the procedure laid down in s.331-A. It is not open
to a Court dealing with suit in which the said question
arises to by pass the provisions of section 331-A and to
proceed to determine
650
the said question itself.
In order that s.331-A may be invoked the following
conditions must be satisfied:
(i) the suit must relate to land held by a bhumidhar;
(ii) the question whether the land in question is or is
not used for purposes connected with agriculture,
horticulture or animal husbandry should arise or be raised
in the said suit; and
(iii) a declaration has not been made in respect of
such land under s.143 or s.144.
Shri J.P. Goyal, the learned counsel appearing for the
appellants, has submitted that in the present case all the
three conditions are fulfilled. The respondents are
recorded as Bhumidhar in respect of the suit land and,
therefore, the said land is held by a bhumidhar. The
question whether the land in question was used or not used
for purposes connected with agriculture, horticulture or
animal husbandry which includes pisciculture and poultry
farming arises for consideration in the suit filed by the
respondents because the respondents claim that it is Abadi
land. No declaration has been made in respect of that suit
land under s.143 or s.144. Shri Goyal has urged that in the
circumstances, it was incumbent upon the Civil Judge to
frame an issue on the question and sent the same to the
Assistant Collector in-charge of the sub-division for the
decision on that issue as required by sub-section(1) of
Section 331-A and the Civil Judge could not himself decide
the said question while dealing with issues nos.5 and 6.
Shri Goyal has, therefore, contended that the order passed
by the Civil Judge deciding issues no 5 and 6 was an order
passed without jurisdiction and the High Court has erred in
not interfering with the same in revision. Shri Goyal has
also urged that presumption of correctness attaches to
record of rights under section 44 of the U.P. Land Revenue
Act, 1901 and that the Civil Judge and the High Court were
not justified in ignoring the entry in the khatauni for 1377
F (Exh-A-1) and copies of the entries in the revenue record
(Exh.2 to Exh.5).
Shri Yogeshwar Prasad, the learned counsel appearing
for the plain-tiffs-respondents has laid stress on the
expression "relating to land" in sub-section (1) of s.331-A
and has urged that the term ‘land’ has to be given
651
the meaning as contained in s.2(14) of the Act and it was
competent for the Civil Judge to consider whether the suit
land is land as defined in s.2(14) of the Act and it could,
therefore, go into the question whether the land in dispute
was held or occupied for purpose connected with agriculture,
horticulture or animal husbandry. The submission of Shri
Yogeshwar Prasad is that admittedly there is a building on
the land in dispute, and since the land surrounding the
building is appurtenant to the building the entire area has
been rightly held to be abadi by the Civil Judge as well as
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the High Court.
We are unable to agree with the said sub mission of
Shri Yogeshwar Prasad. In our opinion, the question as to
whether a particular land is "land" under section 2(14) of
which the provisions of the Act are applicable would require
determination of the question whether the land is held or
occupied for purposes connected with agriculture, horticul-
ture or animal husbandry and that is a matter which has to
be determined either in accordance with the provisions of
ss.143 and 144 and if such a determination has not been made
and such a question ariseds or is raised in a suit before a
court, the procedure laid down in s.331-A must be followed
by the Court. This would be so even in a case where a build-
ing exists on the land and the land is claimed to be appur-
tenant to the building because in such a case it will be
necessary to determine the extent of the land that is appur-
tenant to the building, i.e. whether the entire land or only
a part of it is so appurtenant to the building and for the
reason is not held or occupied for purposes connected with
agriculture, horticulture or animal husbandry. This determi-
nation has to be made in accordance with the provisions of
Sections 143 and 144 or Section 331-A of the Act.
In the instant case we find that the conditions for
applicability of the provisions of section 331-A were
fulfilled. In view of entry in the Khatauni for the year
1377F (ex.A-1) which must be presumed to be correct in view
of Section 44 of the U.P. Land Revenue Act, 1901, the said
land was held by the respondents as Bhumidhar. The question
whether the suit land is or is not held for purposes
connected with agriculture arises in the suit filed by the
respondents. There is no declaration in relation to land in
dispute under Section 143 of the Act.
It was, therefore, not open to the Civil Judge to
decide, on its own, the question whether the said land was
held or occupied for purposes
652
connected with agriculture, horticulture or animal husbandry
and after holding that it is not so held refuse to follow
the procedure laid down in s.331-A on the ground that the
said provision has no application to the land in dispute.
The only course which was open to the Civil Judge was to
frame an issue on the question whether the land in dispute
is or is not used for purposes connected with agriculture,
horticulture or animal husbandry and send the record to the
Assistant Collector in-charge of the sub-division for deci-
sion on that issue and decide the suit in the light of the
finding recorded by the Assistant Collector on that issue.
By deciding this question himself the Civil Judge has exer-
cised jurisdiction not vested in him by law and in not
following the procedure laid down in section 331-A he has
committed illegality in exercise of his jurisdiction which
error was requried to be rectified by the High Court in
exercise of its revisional jurisdiction under section 115
CPC.
The appeal is, therefore, allowed. The judgment and
order of the High Court of Allahabad dated April 2, 1980 and
the order dated September 14, 1978 passed by the Civil
Judge-I, Varanasi are set aside and the Civil Judge is
directed to frame an issue on the question whether the suit
land is or is not used for purposes connected with agricul-
ture, horticulture or animal husbandry which includes pisci-
culture and poultry farming and after framing the said issue
send the record to the Assistant Collector in-charge of the
sub-division for the decision on that issue. There will be
no order as to costs.
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G.N. Appeal allowed
653