SATISH CHANDRA, J. :- A learned Single Judge has, in view of a conflict between two Division Benches in Basdeo Singh v. Bharat Singh, AIR 1949 All 542 and Balbodh v. Mahabir, 1970 All LJ 1145 referred this civil revision to a Full Bench.

2. Indrapal Singh, defendant Opposite Party No. 1 and Janakpal Singh, father of defendant Opposite Parties Nos. 2 to 4, were co-sharers in a bhumidhari holding. They, by two sale deeds dated 19th September, 1956 and 26th September, 1957, transferred 2.30 acres out of this holding in favour of the plaintiff-applicant. One Lakhan Singh, a co-sharer in the holding, filed Suit No. 190 of 1958 for partition in the court of the Munsif, Etah. The transferors and the transferee (namely the plaintiff-applicant) were both impleaded as parties to the partition suit. The learned Munsif passed a decree on 11th February, 1963, declaring the share of the transferors at .49 acre. Thereupon the transferee filed the present suit for recovery of Rs. 1,000/-. He claimed that out of the area of 2.30 acres sold to him only .49 acre has remained with him. The balance 1.81 acres has gone away from him because his transferors were declared as having no interest in that area. He claimed refund of Rs. 551/-which represented the proportionate sale consideration and Rs. 449/- as interest.

3. The defendants opposite parties contested the suit. They denied that the sale deed was without consideration. They alleged that the plaintiff had acted negligently in defending the partition suit, otherwise the defendants' share would have covered the entire area sold to him. The right of the plaintiff to interest was denied. It was also pleaded that the suit was barred by time. No plea as to the jurisdiction of the civil court to entertaining and deciding the suit for partition was taken in the written statement.

4. The trial court repelled the various pleas in bar and decreed the suit. The defendants appealed. At the hearing of the appeal the defendants raised an additional plea that the decree for partition was void because the civil court had no jurisdiction to partition the bhumidhari holding. The learned Civil and Sessions Judge, Etah, repelled the various pleas urged on the merits of the case but upheld the plea of jurisdiction. Relying on 1970 All LJ 1145 he held that in view of Section 331 of the Zamindari Abolition Act, as it stood after its amendment in 1961, the civil court had no jurisdiction to hear and determine the partition suit. So, the partition decree passed on 11-2-1963 in Civil Suit No. 190 of 1958 was without jurisdiction in view of the Amending Act No. 37 of 1958. It was held that since the partition decree was void, it cannot be said that the share of the defendants had been determined to be .49 acre only, and the plaintiff cannot claim refund of any part of the sale consideration. The appeal was allowed and the suit was dismissed. Aggrieved, the plaintiff came up to this Court in revision.

5. The questions argued by learned counsel were whether the preliminary partition decree passed by the civil court was void and whether an objection of this nature could be raised by the defendants for the first time in appeal.

6. Section 176, U. P. Zamindari Abolition and Land Reforms Act provided for partition of holding of a bhumidhar or sirdar. Section 331 (1) of the Act, as originally enacted, provided:-

"331. (1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application or proceeding mentioned in column 3 thereof."

Schedule II as originally enacted did not contain any entry in regard to a suit for partition mentioned in Section 176. The effect was that suits for partition of holdings of a bhumidhar or sirdar were cognizable by the Civil Courts alone.

7. The U. P. Land Reforms (Amendment) Act 20 of 1954 (which came into force on 10th October, 1954), intr