JUDGMENT Shitla Prasad Srivastava, J.
1. This writ petition under Article 226 of the Constitution has been filed by the petitioner for quashing the order dated 15.6.1994 passed by the Board of Revenue, which has been annexed as Annexure 5 to the writ petition.
2. The brief facts, as stated in the writ petition, are that a Suit No. 12 was filed under Section 209 of U. P. Zamindari Abolition and Land Reforms Act and Section 64 of the U. P. Urban Areas Zamindari Abolition and Land Reforms Act by the petitioner in respect of plot No. 4/20 area 2 bighas 10 biswa. It was alleged in the said plaint that land in dispute was recorded as bhumidhari land of the petitioner and the Guru of respondent No. 1 (Prabhu Das) has taken wrongful possession of the plot without any consent of the petitioner and without any authority of law and did not vacate the land hence the suit was filed.
3. The suit was contested by the contesting respondents that the land in dispute is not in the name of the plaintiff and the land in dispute is not situated as alleged in the plaint by the plaintiff. It was further alleged that the abadi has been built up and the defendant is in possession for more than 25-30 years without any interference and land is surrounded by the boundary wall as such, the suit is not maintainable in the revenue court. It is further stated the area 8 bighas 7 biswa of Khasra No. 4 has been given to the contesting defendant by the Zamindar, Mahant Sadhu, which is Khasra No. 4/22/2 and the defendant has purchased an area of 1 bigha 17 biswa of Khasra No. 10. The land is part of the said land of the defendant. It appears that the issue was framed as to whether the land in dispute has become abadi and the revenue court has no jurisdiction. This issue was referred to the Sub-Divisional Officer for decision under Section 331A of the U. P. Zamindari Abolition and Land Reforms Act. The Sub-Divisional Officer while deciding the issue under Sections 143 and 144 of U. P. Zamindari Abolition and Land Reforms Act asked for a report from the Tehsildar who submitted a report of the abadi land and non-abadi land and found 10 biswa 10 biswansi as abadi and rest of the land as agricultural land. On 20.1.1986, the Sub-Divisional Officer decided the issue and determined that 10 biswa land be declared as abadi and rest as agricultural land and further directed that the plaint be amended accordingly. Accordingly, the plaint was amended and the land in dispute remained confined to the area of 1 bigha 19 biswa 10 biswansi. The trial court while deciding issue No. 6 held that the disputed plot is neither abadi nor non-agricultural land, therefore, the revenue court has Jurisdiction to decide the issue. The trial court ultimately decreed the suit for ejectment against the contesting defendant vide order dated 20.1.1986. The defendant filed an appeal before the Commissioner against the order of the trial court. The finding was given by the lower appellate court that on the basis of the judgment of the trial court, the disputed plot is completely identifiable on the spot and defendant had no right over the same. The appeal was dismissed on 18.9.1991.
4. The defendant aggrieved by the aforesaid judgment filed Second Appeal in the Board of Revenue. The Board of Revenue observed that the lower appellate court could not do justice on the specific issues which has emerged as a result of the discussion relating to identifiability of the plot in question and remanded the case to the trial court with the directions to re-examine the issue of identifiability after obtaining the survey report, re-evaluating the effect of patta submitted by the defendant or any other patta that the plaintiff may prefer to file in order to strengthen his claim. This Judgment of the Board of Revenue dated 15.6.1993 has been challenged by the petitioner in the present writ petition.
5. Learned counsel for the petitioner has urged that the Board of Revenue had no jurisdiction to interfere in the finding of fact recorded by the Court below rather it has misread and misdirected himself on the point of identifiability of the land. It has also been submitted by the learned counsel for the petitioner that the Board of Revenue had no jurisdiction to order that fresh survey of land in dispute should be made. His contention is that when issue No. 6 was referred to the Sub-Divisional Officer for decision under Sections 143 and 144 of U.P.Z.A. and L.R. Act and report was submitted by the Tehsildar and Sub-Divisional Officer gave a finding that there is some abadi and some land is agricultural land and identifiability of the plot is established, therefore, findings was clear on the question of identifiability of the land and that it was not a fit case which should be remanded to the trial court. It has been further urged that the findings of the trial court has been mis-read by the Board of Revenue on the point of patta of the defendant.
6. Learned counsel for the petitioner has urged that as the contesting respondent has not filed any writ petition against this order of remand dated 8.2.1989 in which a finding of fact has been recorded that the land is identifiable, the contesting respondent has no right to defend this writ petition. He has placed reliance on Section 105(2) of Code of Civil Procedure. Sri Sankatha Rai, learned counsel for the respondent has submitted that the order of remand cannot be challenged in writ jurisdiction and provisions of Section 105(2) of C.P.C., is not applicable to the facts of this case for that purpose he has placed reliance on Satyhadhyam Ghosal and others v. Smt. Deorajin Debi and another, AIR 1960 SC 941.
7. Sri Sankatha Rai, learned counsel for the respondent has urged that no writ lies against the order of remand. For that purpose, he placed reliance on Uma Shanker and others v. District Deputy Director of Consolidation, Etawah and others, 1969 AWR 182. He has further placed reliance on Kallan v. Deputy Director of Consolidation. 1971 RD 491, in which it was held that ordinarily no writ can be entertained against the order of remand. He has further placed reliance on Badhu v. Ram Narain and others, 1994 RD 256, wherein it was held that if the Deputy Director of Consolidation has remanded the case, no interference is required under Article 226 of the Constitution of India. The reliance has been placed by Sri Sankatha Rai on AIR 1960 SC 941 (supra), wherein the Court held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken can be challenged in an appeal from the final decree or order. His contention is that the order of remand is in the shape of interlocutory order, as the matter has not been finally decided, therefore, the writ petition is not maintainable. Learned counsel has further placed reliance on Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 707, on the point that the appeal on the remand order could become non-est. His further submission is that the subject-matter of dispute is settlement of plot No. 4/20, therefore, while passing a decree under Section 209 of U. P. Zamindari Abolition and Land Reforms Act its identifiability must be determined. He has submitted that Order VII, Rule 3 of C.P.C. provides that where the subject-matter is of such an identifiable property, the plaint shall contain the description of the property sufficient to identify, and in case such property can be identified by the boundaries or of particulars in the record of the settlement or survey, the plaint shall specify such boundary or particulars. He has placed reliance on paragraphs A-63 and A-64 of U. P. Land Record Manual for the purpose that its field has been broken in two or more boundary lines on the ground separate entries shall be given to each portion if same has been numbered as pointed out in para A-57. His contention is that unless the plot is identifiable on the spot, no effective decree can be passed for the ejectment. His further submission is that in this case a Vakil Commissioner was appointed who could not locate plot No. 4/20 in survey as the relevant map and khasra were not placed before him.
8. Sri. G. N. Verma, learned counsel for the petitioner, in reply, submitted that while demarcating the land, the Sub-Divisional Officer obtained a report from the Tehsildar who measured the land and submitted a report regarding the identifiability of the plot which was abadi and which was agricultural land, therefore the case should not be remanded and that decision became final between the parties. He placed reliance on Rule 135 of the Rules framed under the U. P. Zamindari Abolition and Land Reforms Act, Rule 135 of the aforesaid rules is quoted here in below :
"135. (1) On an application made by a bhumidhar under Section 143 or on facts coming to his notice otherwise, the Assistant Collector incharge of the Sub-Division may cause enquiry being made through the Tehsildar or any other officer not below the rank of a Supervisor-Kanungo, for the purpose of satisfying himself that the bhumidhar's holding or a part thereof is really being used for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. The enquiry shall be made on the spot and the enquiry officer shall, along with his report also furnish information in the proforma given below :
Name of village Name of Bhumidhar with parentage and residence.
Khata Khatauni number.
Area of the Holding Land revenue.
Area of the holding used for non-agricultural purposes The specific non agricultural to which the holding or part there of its put to Remark
(a)
(b) Plot No. Area 1 2 3 4 5 6 7 8 (2) Where the proceedings have been started by the Assistant Collector-in-charge of the sub-division on his own motion he shall issue notice to the Bhumidhar concerned. Otherwise ail he shall give him an opportunity of being heard before coming to a decision in the matter.
(3) Where the entire holding of the bhumidhar has been put to use 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 shall make a declaration to that effect.
(4) Where only part of the holding of the bhumidhar has been put to use for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming the Assistant Collector-in-charge of the subdivision shall make a declaration to that effect accordingly and get the said part demarcated on the basis of existing survey map and actual user of the land.
(5) The Assistant Collector-in-charge of the Sub-Division shall get prepared and place on record a map showing indifferent colours the plots put to use for purposes connected with agriculture or animal husbandry which includes pisciculture and poultry farming and for purposes not so connected. He shall also apportion the land revenue payable for each part of holding. The land revenue payable for each shall bear the same proportion to the total land revenue as the valuation of part bears to the total valuation of the holding calculated on the basis of the rent rates applicable. An entry shall also be ordered to be made accordingly in the Khatauni.
(6) The cost of the demarcation shall be realised from the bhumidhar concerned as an arrear of land revenue unless it has been deposited during the course of the proceedings. For the services of the Government servants deputed for carrying out the demarcation, the cost shall be calculated according to the time taken in the work at the rates laid down in paragraph 405 of the Revenue Court Manual. The costs so calculated shall be deposited in the treasury under the head (LII-Miscellaneous) Collection of payments of services rendered."
9. Heard the learned counsel for the parties and perused the record. From a perusal of the record, it is apparent that the petitioner has filed a copy of the report submitted by the Tehsildar. The Tehsildar has also submitted a sketch map. In his report. It is written that he had made inspection of the spot and found that on an area of 0-10-10, a pucca construction is made and on which a Sanskrit Maha Vidhyalaya is being run. An area of 10 biswa is recorded as Abadi and remaining area as agricultural land and is being used as grove. It is specifically mentioned that he has annexed a map (Nazari Naksha) alongwith the report. The trial court framed issue No. 6 and it was referred to Sub-Divisional Officer concerned while deciding issue No. 6. The trial court took the help of decision given by the Sub-Divisional Officer and declaration made by him under Section 143. It is apparent from the report of the Tehsildar that no survey was made with the help of Settlement map nor the trial court issued any Commission for preparation of survey map to fix the identity of the plot while deciding issue No. 4. The trial court placed reliance on the decision of the Sub-Divisional Officer on issue No. 6. Section 143 of the U. P. Zamindari Abolition and Land Reforms Act, and Rules 135 and 136 framed under the U. P. Zamindari Abolition and Land Reforms Act and held that since specific number has been given to the plot in question, as such, the plot is identified on the spot. The trial court also came to the conclusion that defendant has failed to prove his possession of last 25-30 years. The trial court also said that in the patta, no Khasra Number is mentioned nor the area mentioned therein tallies with the land in dispute. It ultimately held that the defendant had acquired no right. The appellate court also affirmed the judgment of the trial court and dismissed the appeal preferred by the defendant. The appellate court made observation that under Section 143 of U. P. Zamindari Abolition and Land Reforms Act, read with Rule 135 framed therein, the Sub-Divisional Officer has declared some area as Abadi and none of the parties have challenged that decision, therefore, the land is identifiable on the spot. The Board of Revenue observed that patta should have been filed by the plaintiff in the context of another controversy, i.e., identifiability of the land. That could have thrown light on the exact area, nature of the land possible location and the legal privilege of the person executing patta. It was further observed by the Board of Revenue that the trial court has concluded that the patta which was filed by the defendant does not reconcile with the khasra numbers and the area mentioned in the suit. It has also been observed that the right of the executor of patta has not been brought out, therefore, the patta is irrelevant for establishing any rights either of the defendant or the plaintiff. The Board of Revenue on the point of identifiability has observed that in the file of the trial court, there is report of Tehsildar with the site plan, which is described as rough sketch of what exists at a particular location. It cannot be described as map prepared after proper survey, measurements and alignment, with other numbers. The revenue map and other records which form the basis for this particular site plan made by the Tehsildar is also not clear nor mentioned. Therefore, it would be unfair to conclude that this issue of identifiability was decided properly. Ultimately the case has been sent back to the lower court with certain directions.
10. Section 331A of the U. P. Zamindari Abolition and Land Reforms Act deals with the procedure when the plea of and being used for agricultural purposes is raised in any suit. Section 331A of the aforesaid Act is quoted below :
"331A. 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 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 subdivision 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 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 Section 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 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."
11. Rule 135 framed under the aforesaid Act lays down procedure for making inquiry in sub-clause (4) of the aforesaid Rules, which says that the Assistant Collector in-charge of the sub-division shall make declaration to that effect accordingly and get the said part demarcated on the basis of existing survey map and actual user of the land.
12. From a perusal of the judgments of the trial court, appellate court as well as report submitted by the Tehsildar along with sketch map, it is clearly apparent on the face of record that while deciding issue No. 6, the provisions of Sections 143 and 144 of the U. P. Zamindar Abolition and Land Reforms Act and Rules 135 of the U. P. Zamindari Abolition and Land Reforms Rules were not complied with, therefore, the order of remand made by the Board of Revenue is a correct order and it does not require any interference under Article 226 of the Constitution of India. The writ petition is accordingly dismissed. There will be no order as to costs.