JUDGMENT

Brijesh Kumar, Member - This revision petition is directed against the order dated 2.7.1985 passed by the Additional Commissioner, Bareilly Division, Bareilly arising out of an order dated 6.8.1984 passed by Sri G.D. Punetha, SDO/Assistant Collector 1st Class Baheri in a suit u/Sec. 176 of the U.P. Zamindari Abolition and Land Reforms Act.

2. The facts of the case are that Smt. Bhagwati brought a suit u/Sec. 176 of the Act against Lalta Prasad. The learned trial court decreed the suit on 28.12.1981 determining the shares of the parties. The defendant preferred an appeal against this order before the Divisional Commissioner. The learned Addl. Commissioner allowed the appeal on 19.11.1982 and remanded the case back to the trial court for decision afresh after framing issues in the light of the observation made in the body of the judgment. When the case was taken up for rehearing before the trial court, the plaintiff made an application on 11.6.1984 with the contention that issue No. 1 framed on 5.8.1971 become redundant because under the current law the rights of the plaintiff could not be challenged nor could the defendant raise the question of her re-marriage and extinction of her rights. The defendant opposed this more. The learned trial court after hearing the parties allowed the application of the plaintiff and struck out the following issue:

"Kya Smt. Bhagwati ne punarvivah kar liya hai aur is prakar vivadit bhoomi se uske adhikar smapt ho jate hain."

Aggrieved by this order, the defendant Lalta Prasad preferred a revision before the Divisional Commissioner. The learned Addl. Commissioner agreed with the findings of the learned trial court and dismissed the revision on 2.7.85. Hence this revision petition before this court by the defendant.

3. I have heard the learned counsel for the parties. Sri A.K. Gupta, learned counsel for the revisionist has contended that this learned trial court has not followed the directions of remand order. His second contention is that after remarriage Smt. Bhagwati had no right to file a suit u/Sec. 176 of the Act.

4. I have carefully considered the arguments advanced before me and have also perused the record. It appears from the record that Smt. Bhagwati widow of Ram Sahai had brought a suit u/Sec. 176 of the Act against Lalta Prasad. The learned trial court decreed the suit on 28.12.1981 holding that the plaintiff was entitled to half share in the land in suit. The defendant preferred an appeal before the Divisional Commissioner. The learned Addl. Commissioner allowed the appeal on 19.11.1982 and remanded the case back to the trial court for decision afresh after framing issues in the light of the' observations made in the judgment. After the case was remanded, it was taken up for rehearing. The learned trial court by means of its order dated 6.8.1984 struck off issue No. 1 which was as follows:

"Kya Smt. Bhagwati ne punarvivah kar liya aur is prakar vivadit bhumi se uske adhikar smapt ho jate hain."

Relying on 1981 AWC 52, the learned trial court has struck off the Issue No. 1 on the ground that the question of title cannot be raised in a suit for partition and a recorded co-tenant is entitled to bring a suit for partition. The learned Addl. Commissioner has upheld the view taken by the learned trial court.

5. I do not find any illegality in this order. The extract of Khatauni 1377-F shows that Lalta Prasad, Bhagwan Das and Ram Sahai were co-tenants. Upon the death of Ram Sahai, the plaintiff Smt. Bhagwati was recorded in his place in column of the Khatauni. She was, therefore, fully entitled to bring a suit for partition. A Full Bench of the Board of Revenue has held in Darshan Singh v. Kunwar Singh 1981 AWC 52, that a recorded co-tenant is competent to file a suit for partition and mere denial of the defendant will not make it incumbent on the plaintiff to convert his suit into one of declaration u/Sec. 229-B of the Act.

6. Order XIV, Rule 3 C.P.C. empowers the court to amend iss