ORDER :

(Chandra Kumar Rai, J.)

1. Counsel for the petitioner is permitted to implead Upziladhikari, Kanpur Nagar as respondent No.5 in the array of parties during the course of day.

2. Heard Mr. Ajay Kumar, Counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Dheeraj Kumar Dwivedi for respondent No.4.

3. The instant petition has been filed against the order of Board of Revenue dated 26.4.2022, by which, the second appeal filed by respondent No.4 has been allowed setting aside the judgment of the Courts below and proceeding of the suit has been remitted back before the Trial Court to decide the suit afresh after impleadment of the Gaon Sabha.

4. Counsel for the petitioner submitted that the suit under Section 144 of the U.P. Revenue Code, 2006 filed by respondent No.4 has been dismissed by the Trial Court and the decree has been maintained in first appeal but Appellate Court has arbitrarily allowed the second appeal and remitted the matter back before the Trial Court for fresh trial. He further submitted that suit for declaration filed by respondent No.4 was rightly dismissed by Trial Court and First Appellate Court as no claim was raised during consolidation operation. He further submitted that Second Appellate Court has exceeded his jurisdiction in allowing the second appeal, as such, the impugned judgment be set aside against the order of Trial Court.

5. In reply, Counsel for respondent No.4 submitted that suit under Section 144 of the U.P. Revenue Code, 2006, filed by respondent No.4 has been dismissed without framing issues and giving parties to lead the evidence according to the issues framed in the suit as such the same was wholly illegal. He further submitted that there is no limitation for filing the suit under Section 144 of the U.P. Revenue Code, 2006 but the plaintiff suit has been dismissed arbitrarily holding that it is barred by limitation. He further submitted that Second Appellate Court has allowed the second appeal and remitted the matter back for filing fresh suit under Section 144 of the U.P. Revenue Code, 2006.

6. Counsel for the respondent No. 4 placed reliance upon the judgment of this Court reported in 2020 RD (140) 186 Babu vs. Mahaveer in which it has been held that unless the issues are framed in the suit for declaration under Section 144 of the U.P. Revenue Code, 2006, the judgment cannot be passed on merit. He further submitted that there is no limitation for filing suit under Section 144 of U.P. Revenue Code, 2006. He finally submitted that no interference is required against the order of Board of Revenue by which the matter has been remanded back to the Trial Court to decide the suit afresh on merits.

7. I have considered the arguments advanced by learned counsel for the parties and perused the record.

8. There is no dispute about the fact that the suit under Section 144 of U.P. Revenue Code, 2006 filed by respondent No.4 has been dismissed without framing issue in the suit.

9. There is also no dispute about the fact that the suit has been dismissed on the ground of limitation also and the judgment and decree of the Trial Court has been maintained in First Appeal but in Second Appeal, the judgments of Trial Court and First Appellate Court have been set aside and the matter has been remanded back to the Trial Court to decide the suit afresh on merit.

10. Since, the suit under Section 144 of U.P. Revenue Code, 2006 has been decided without framing issue, as such, in view of ratio of law laid down by this Court in Babu (Supra), judgment passed by the Trial Court cannot be maintained on merit. The paragraph Nos. 2, 3, 4, 5 & 6 of the judgment rendered in Babu (Supra) is relevant for perusal which are as under:-

"2. The manner in which the suit instituted by the respondent no.1 under Section 229-B of U.P. Z.A. & L.R.Act has been decided by the impugned order dated 28.01.2019 cannot be appreciated. The trial court has neither framed issues nor has provided any opportunit