JUDGMENT

VENKATACHALA, J—(On behalf of himself and Kuldip Singh, J.):- Raghunath who had lands comprised in Khasra Nos. 2, 5/1 and 6/1 situated in village Madangir, Delhi, as his holding died in the year 1952 leaving behind Vidya Devi alias Vidya Vati, widow of his predeceased first son Ram Narain, his second son Dev Raj and his third son Prem Prakash, as his legal heirs to inherit his holding. When in the year 1953-54 a jamabandi of that village was held, entry in the revenue records pertaining to the said holding was changed from the name of Raghunath to the names of Vidya Devi, Dev Raj and Prem Prakash. With the coming into force of the Delhi Land Reforms Act, 1954- the Act, respecting the area of the lands within which the said holding fell, a declaration having been made is required under that Act and the Rules made thereunder on 1st February, 1958 that the said Vidya Devi alias Vidya Vati, Dev Raj and Prem Prakash were the co-bhumidhars of that holding, they became the co-bhumidhars each entitled to one -third share thereof.

2. However, on 9th October, 1975 Vidya Devi, filed a suit as plaintiff therein for partition of her one-third share and separate possession in the said holding before the Revenue Assistant, as provided for under sub-section(1) of Section 55 of the DL Act against the other co-bhumidhars -Prem Prakash and Dev Raj by impleading them as defendants-1 and 2 respectively in that suit. Defendant-2 Dev Raj did not have any objection for partition and giving separate possession of one-third share out of the said holding to the plaintiff as prayed in the suit. Indeed, he also claimed for partition and giving of separate possession of his one-third share in the said holding. But, defendant-1, Prem Prakash contested that suit, In his defence statement, he pleaded inter alia, that he being in exclusive possession of the said holding ever since the year 1953-54, he had perfected his title in respect to the whole of the said holding by adverse possession as against the other co-bhumidhars and, therefore, question of title was involved in the suit requiring the Revenue Assistant to frame any issue thereon and refer the same to Civil Court for obtaining a finding thereon, as required by Section 186 of the DL Act, No doubt, the Revenue Assistant, who framed the issues in that suit based on the pleadings therein framed an issue which read thus:

"Whether any question of title is involved in this case which requires any reference to the civil court under section 186 of the DL Act."

3. But, when that issue was considered by the Revenue Assistant as preliminary issue, he took the view that no question of title which required to be referred to civil Court under Section 186 of the DL Act for obtaining its finding was involved. However, that view was questioned by defendant-1 by taking the matter in revision before the Financial Commissioner. But, the Financial Commissioner who heard the revision, rejected it by upholding the view of the Revenue Assistant on the said preliminary issue. The reason given by the Financial Commissioner for upholding the view of the Revenue Assistant on the preliminary issue was that the plea of title taken in his defence by defendant-I was to be deemed as untenable within the meaning of explanation to sub-section(1) of Section 186 of the DL Act in that it was solely intended to oust the jurisdiction of the Revenue Assistant in the matter. Defendant-I filed a writ petition, C.W. No. 691 of 1978 in the Delhi High Court questioning the correctness of the said orders of the Revenue Assistant and the Financial Commissioner rendered on the preliminary issue in the suit. However, the learned Single Judge rejected that writ petition finding no merit in it. Defendant -1 filed an appeal against the order of the learned Single Judge rejecting his writ petition in L.P.A No. 70 of 1979. The Division Bench of the High Court which heard that L.P.A. took the view that clause (d) of Section 67 of the DL Act which pr