JUDGMENT H.N. Agarwal, Member. - This is a revision against the judgment and order dated May 25, 1973 passed by Sri Saiyid Husain, Addl. Commissioner, Faizabad Division, in appeal No. 709 arising out of an order dated February 10, 1971 passed by Sri K.R. Shilpkar, S.D.O., Sultanpur in a suit under Section 176 of the U.P.Z.A. and L.R. Act. 2. The revisionist Nakchhed had brought a suit against the O.Ps. Ram Das and others under Section 176 of Z.A. Act in respect of certain land situated in village Bahurawan, District Sultanpur. The trial court by its order dated February 10, 1971 decreed the suit. In appeal the Addl. Commissioner set aside the decree and order passed by the trial court and remanded the case back to him to decide it afresh after issuing notice to the Gaon Sabha under Section 106, Panchayat Raj Act and framing an additional issue if defendant Nos. 1 to 3 and Rameshwar were sole Bhumidhars. 3. I have heard the learned counsel for the parties and have gone through the records. 4. It has been contended by the learned counsel for the revisionist that the lower appellate court has erred in law in holding that a notice under Section 106 of the Panchayat Raj Act was necessary in a suit under Section 176 of Z.A. Act. This contention is sound and must be upheld. Sub-section (2) of Section 176, Z.A. and L.R. Act provides that the Gaon Sabha concerned shall be made a party to every suit for the division of a holding. The requirement of this section has however, been met as Gaon Sabha was impleaded as defendant No. 6 in the present suit. Section 106 of U.P. Panchayat Raj Act has no relevance whatsoever to a partition suit. This section reads as follows :- "106. The requirement of this section has however, been met as Gaon Sabha was impleaded as defendant No. 6 in the present suit. Section 106 of U.P. Panchayat Raj Act has no relevance whatsoever to a partition suit. This section reads as follows :- "106. Suits against Gaon Sabhas, Gaon Panchayats, the officers, or the officers and servants of Nyaya Panchayats.-(1) No suit or other legal proceeding shall be instituted against a Gaon Sabha or Gaon Panchayat or against a member thereof or against an officer or servant of a Gaon Sabha, Gaon Panchayat or Nyaya Panchayat or against any person acting under the direction of any of these bodies or persons for any thing done or purporting to have been done in official capacity under this Act, until the expiration of 2 months next after notice in witting has been in the case of a Gaon Sabha or Gaon Panchayat, delivered in or left at the office of the Gaon Panchayat concerned and in the case of a member, officer or servant or any person acting under his direction or the direction of the Gaon Sabha, Gaon Panchayat or Nyaya Panchayat delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the reliefs sought the amount of compensation, if any, claimed and the name and place of abode of the intending plaintiff and the plait shall contain a statement that such notice has been so delivered or left." 5. A careful reading would make it clear that Section 106 relates only to suits or legal proceedings instituted against a Gaon Sabha or Gaon Panchayat or its members, its officers or servant where the cause of action arises from anything done of purporting to have been done under the provisions of the Panchayat Raj Act. The learned Addl. Commissioner has completely misunderstood the provisions of this section which has been properly interpreted in Sheopujan v. Gaon Sabha, 1964 A.W.R. 157. There is no justification for remanding the case on the ground that notice under Section 106, Panchayat Raj Act had not been given. 6. The learned counsel for the revisionist has also argued that the view of the learned Addl. Commissioner to the effect that a separate issue with regard to the rights of defendants Nos. 1 to 5 and Rameshwar was necessary was erroneous in law. 6. The learned counsel for the revisionist has also argued that the view of the learned Addl. Commissioner to the effect that a separate issue with regard to the rights of defendants Nos. 1 to 5 and Rameshwar was necessary was erroneous in law. Issues are to be based on the pleadings of the parties which relate to material question of fact and law. The trial court had framed seven issues. Issue No. 1 was whether the plaintiff was Bhumidhar along with defendants Nos. 1 to 5 of the land in suit as alleged. Issue No. 3 was whether defendants Nos. 1 to 5 were Sirdars of the land in suit. Issue No. 5 was whether the suit was bad for non-joinder of necessary parties. These issues covered the material questions involved in the decision of suit. It is true that the defendants had claimed Bhumidhari rights for themselves. Taking the issues Nos. 1 and 3 together, the question of the rights of the defendants as Bhumidhars or Sirdars was fully covered. The finding of the trial court is that the plaintiff was co-Bhumidhar along with defendants Nos. 1 to 5. As regards the question whether Rameshwar was a necessary party the trial court held in issue No. 5 that he was not a necessary party, he had no share in the land in dispute and the suit as not bad for non-joinder of necessary party. Thus there was no longer and necessity for remanding the case for a fresh trial after adding a fresh issue. 7. I, therefore, hold that the learned Addl. Commissioner has acted illegally and with material irregularity and has failed to exercise jurisdiction vested in him by not deciding the appeal on merits. I hereby allow the revision, set aside the impugned order of the learned Addl. Commissioner dated May 25, 1973 and directed that he shall proceed to hear and decide the appeal on merits.