JUDGMENT :

Siddharth, J.

1. Heard Sri Alok Kumar Yadav, learned counsel for the petitioners and Sri Vipin Bihari, Advocate appearing on behalf of respondent No. 1.

2. This petition has been filed under Article 227 of the Constitution of India praying for setting aside the judgment and order dated 3.2.2009 and 3.3.2009 passed by the trial Court and revisional Court in Original Suit No. 217 of 2009 and in Misc. Case No. 33 of 2009 respectively.

3. Further prayer has been made for a direction to the Civil Judge (Senior Division), Bhadohi, Gyanpur, District-Sant Kabir Nagar to remit issue No. 2 for trial before the Assistant Collector Incharge as per Section 331-A of U.P. Zamindari and Abolition of Land Reforms Act, 1950.

4. The case of the petitioners is that they alongwith respondents IInd set have constructed their houses over plot No. 77 Kha (Old No. 993/1983, area 3.17 hectares) situated in Village Godhna, Taluka Kond, Tehsil Gyanpur, District-Sant Ravidas Nagar. The defendants Ist set tried to demolish their houses in the year 2003 and then on enquiry, it was found that the defendants Ist set has got his name entered into revenue record fraudulently. Hence, the suit was instituted before the trial Court praying for a decree of mandatory injunction against the defendant/respondent Ist set. The defendant-respondent Ist set filed his written statement claiming that he is bhumidhari of the property in dispute on the basis of revenue record of the year 1970 fasli.

5. On the basis of the pleadings of the parties, the trial Court framed issues in the suit. The second issue framed was as to whether the suit of the plaintiff is barred by Section 331-A of the U.P.Z.A & L.R. Act.

6. The plaintiffs-petitioners filed an application (68-ga) praying that the aforesaid issue may be referred to the Assistant Collector Incharge of the Sub-Division for decision as per Section 331-A of the Act aforesaid but the trial Court rejected the same on the ground that the same shall be considered after the evidence is led by the parties.

7. Aggrieved by the aforesaid order, a revision was preferred which was dismissed on the ground of maintainability and hence the petitioners are before this Court.

8. Learned counsel for the petitioners has submitted that the Section 331-A of the U.P.Z.A & L.R. Act makes it mandatory for the Court, other than the Court of Assistant Collector, that if an issue arises in a suit as to whether any land is being used as agricultural land or abadi land, such an issue is required to be referred to the Assistant Collector Incharge of the Sub-Division as per the procedure laid down in the Section.

9. He has further submitted that the aforesaid provision is mandatory as per the judgment of the Hon'ble Supreme Court in the case of Chandrika Singh vs. Raja Vishwanath Pratap Singh and Others, AIR 1992 SC 1318 and also the judgment of this Court in the case of Ramraj vs. Board of Revenue, 2006 (100) RD 150, Para 6.

10. Learned counsel for the respondent Ist set has submitted that the application 68-ga filed by the plaintiffs-petitioners was rightly rejected by the trial Court and affirmed by the revisional Court holding that only after the evidence is led by the parties, it would be decided whether to send the issue No. 2 for decision to the Assistant Collector or not. He has submitted that the writ petition was dismissed by the order dated 17.8.2009 by this Court but the order was reviewed on 21.4.2011 by this Court on review petition of the plaintiffs-petitioners. He has further submitted that the petitioners are only delaying the proceedings of the suit by filing this petition.

11. After hearing learned counsels for the parties, it is clear that counsel for the defendants-respondents Ist set has not replied to the arguments made regarding the mandatory requirement of compliance of Section 331-A of the U.P.Z.A & L.R. Act. A perusal of the judgment of the Apex Court in the case of Chandrika Singh and others (Supra) shows that whenever the dispu