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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