JUDGMENT

Sharad Kumar Sharma, J. - The factual backdrop of the present case is; that the respondent No. 1, happens to be a plaintiff in a Suit, which was instituted by him by invoking the provisions contained under Section 176 of the UPZA & LR Act, seeking partition of holdings, which was the subject matter of the proceedings of the Suit, filed on 24.03.2015, under Section 176 of the UPZA & LR Act, which was registered as Suit No. 21 of 2014-15, Satvir Singh v. Jasvir and others, before the Court of Assistant Collector, First Class, Roorkee, District Haridwar.

2. The property, which constituted to be taken into consideration for the aforesaid Suit for partition was described in the relief clause and at the foot of the plaint which constituted as hereunder:-

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3. In the said Suit, the pleadings were exchanged and thereafter, on the exchange of pleadings the Court of Assistant Collector, who was ceased with the proceedings, had framed an issue being issue No. 6 to the following effect:-

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4. In a nutshell, if the said issue is taken into consideration in its totality, it was to the effect that as to whether since the land in dispute, which was the subject matter of the proceedings of the Suit filed under Section 176 of the UPZA & LR Act, whether the Suit itself would be maintainable. The said issue was considered and decided by the Court of Assistant Collector First Class by an order dated 13th June 2018, and prior to taking a decision on the said aspect, as to whether there exists any Abadi or not and what impact would it have on the proceedings under Section 176 of the UPZA & LR Act, the Court of Assistant Collector has called upon for a report from the Tehsildar prior to its decision dated 13.06.2018, which was submitted by him on 4th April 2018, as well as that of Lekhpal which was too submitted by him on 3rd April 2018, and thereafter, as per the report extended, it was observed by the Court of Assistant Collector while deciding issue No. 6 that out of total property, which was the subject matter of partition Suit, a very negligible part of it was used for Abadi purpose.

5. These reports is in itself has been extracted by the present petitioner, who is the defendant No. 4 in the proceedings in the Suit under Section 176 of UPZA & LR Act to be creating a bar with regards to the maintainability of the Suit itself on the ground that in view of the said report, his case is that the land in question, which was the subject matter of the proceedings under Section 176 of the Act, would be taking out the land in dispute out of the definition of land, as defined under Section 3 of sub Section (14) of the UPZA & LR Act, which is quoted hereunder:-

"3(14) "Land" means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming."

6. This issue No. 6 when it had already been decided vide order dated 13.06.2018, based upon the aforesaid two reports, there was yet another application filed by the defendants on 27.06.2018 to the effect that their application with regards to the maintainability of the proceedings of 176 suit, the same has not yet been decided, hence the same may be taken into consideration first. The Court of Assistant Collector, by an order which is under challenge in the present writ petition i.e. dated 18th December 2018, took a decision that no answer or separate decision is required to the application submitted by the defendants subsequently on 27.06.2018, because the said Suit and issue agitated with regards to the maintainability of the proceedings under Section 176 of the Act, on the pretext that it is only partially an agriculture land already stood adjudicated by the decision taken on issue No. 6 by the Assistant Collector on 13th June 2018, hence the said application was rejected on the ground that it was no more open to get the same issue re-agitated at the behest of the petitioner by filing a fresh application, particula