JUDGMENT I.B. Singh, M. - This is a reference dated August 14, 1973 made by learned Additional Commissioner, Agra Division, Agra, recommending to reject the revision application against order dated March 17, 1972 made by Judicial Officer (Revenue) District Etah refusing to refer issue No. 6 under Section 331-A of Act I of 1951 for its decision by Sub-Divisional Officer, according to Section 143 of Act I of 1951. 2. The plaintiffs Sukhendra Singh and Sri Brijendra Bahadur Sharma filed the suit for declaration to be co-Bhumidhars with defendants 1 to 4 who are alleged to have sold portions of disputed land to defendants 5 to 25. They also claimed relief for ejectment of the latter. 3. The defendants 2, 3, 5 and some others contested the suit denying the right, title and possession of the plaintiffs and had raised plea that the land in suit was not being used for agricultural purposes. Issue No. 6 was framed regarding it. 4. The defendants gave an application on February 24, 1972 for referring issue No. 6 to the S.D.O. according to the provision of Section 331-A which was decided against them on March 17, 1972 on the ground that plot No. 1030/1 was Sirdari and the plaintiff's claim was to be co-Bhumidhar and co-Sirdar. Relying on note No. 4 of Sri B.C. Shukla's commentary on Z.A. Act at page 1456 both the courts refused to refer the issued to the S.D.O. for finding. 5. I have heard the learned counsel for the parties and have perused the objection and the record. 6. It was argued on behalf of the applicants that Sirdari plot No. 1030/1 was declared under Section 134 of Act I of 1951 of be Bhumidhari although it was so declared after notice under Section 80 C.P.C. was served on the State but it was Bhumidhari and thus all the land in suit was Bhumidhari; that both courts below erred in holding that as the plaintiff's claimed to be co-Bhumidhari and the defendants denied them to be co-Bhumidhars but defendants held the land in suit as Bhumidhars, therefore, the question raised by them that the land in suit was not being used for agricultural purposes. The issue ought to have been referred for finding to the S.D.O. and the note of No. 4 in B.C. Shukla's commentary was wrongly relied upon by the Courts below. 7. The issue ought to have been referred for finding to the S.D.O. and the note of No. 4 in B.C. Shukla's commentary was wrongly relied upon by the Courts below. 7. It was argued in reply that as the plaintiff did not held the land in suit according to the defendants as co-Bhumidhars, therefore, note of Sri B.C. Shukla's commentary on the Z.A. Act was rightly relied upon by the courts below and the issue was rightly not referred to the S.D.O. Reliance was placed on 1978 R.D. page 210, 1961 R.D. page 219 and 1976 R.D. Vol. II page 313. 8. Plot No. 1030/1 was declared under Section 134 of Act I of 1951 to be Bhumidhari although it was so declared after notice under Section 80 C.P.C. but this even was not considered by courts below which ought to have been considered as held in Amarjit Kunwar v. Pritam Singh A.I.R. 1974 (S.C.) 2068. Thus the whole land in suit is Bhumidhari land according to both the parties. 9. Section 331-A runs as follows:- 331-A. Procedure when plea of land being used for agricultural purposes is raised in any suit. (i) If in any suit relating to land held by a Bhumidhar instituted in any court, the question arises or is raised whether the land in question is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Sections 143 or 144, the court shall frame an issue on the question and sent the record to the Assistant Collector-in-charge of Sub-Division for the decision of that issue only: 10. In this Section it is not laid anywhere that which party should hold the land as a Bhumidhar, therefore, even if the defendants hold the land as Bhumidhar and question is raised or arises that it is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Sections 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector-in-charge of the Sub-Division for the decision of that issue only and according to its proviso if the suit has been filed in the court of S.D.O. it shall proceed to decide the question in accordance with the provisions of Sections 143, or 144, as the case may be. 11. In Sri B.C. Shukla's commentary on U.P. Z.A. and L.R. Act at page 1458, note No. 4 runs as follows:- "One of the ingredients of Section 331-A (i) is that the land in dispute must be a land held by a Bhumidhar. The mere fact that the plaintiff claims himself to be a Bhumidhar of the disputed land will not be enough. He must be admitted or proved to be a Bhumidhar of the subject matter in suit. The expression 'land held by a Bhumidhar'. Thus where the plaintiff claiming himself to be the Bhumidhar of the disputed grove sued the defendant for demolition or ejectment on the ground that the later has raised certain constructions in a portion of the said grove and the defendant denies the plea of plaintiff's Bhumidhari, this sub-section will not apply and there will accordingly, be no reference to the S.D.O. because the pleadings of the plaintiff are not by themselves sufficient to hold that the land was held by a Bhumidhar." The said note never means to say that the land should be held as a Bhumidhar by the plaintiff and not by the defendant. In this case the defendants have been admitted to be holding the land as Bhumidhar that note only means to say that in disputed cases where the plaintiff claims to be a Bhumidhar and is not so recorded or is not admitted to be so. The ingredient of the section is not fulfilled and the intention of the commentary is clear by the example mentioned in the note. 12. The ingredient of the section is not fulfilled and the intention of the commentary is clear by the example mentioned in the note. 12. The interpretation of word 'held' used in Section 331-A(1) is used in the sense that it refers to title that had legal origin and person trespassing on land of another and constructing building are not covered by the word 'held'. This expression connotes, lawful right or title and excludes wrongful possessory claims as has been held although in another context in Budhhan Singh and another v. Nabi Bux and another 1961 R.D. 219. and State of U.P. v. Smt. Sarju Devi 1978 R.D. 210. 13. Formerly when the tenant used tenancy land for construction of building he was liable to ejectment under Section 172 of U.P. Tenancy Act. Section 152 of Act I of 1951 confers on Bhumidhar not only the right to the exclusive possession of all the land of which he is a Bhumidhar but also to use if for any purpose whatsoever. The word whatsoever while giving unrestricted right yet made the use subject to the provisions of this Act but once the land is declared by S.D.O. under Section 143 of the Act and the declaration is granted the provisions of Chapter VIII of the Act shall cease to apply to the Bhumidhar and thereupon he shall be governed in the matter of devolution of the land by personally law to which he is subject and for fulfilling this purpose in Section 331-A its declaration has been made compulsory. In Section 143 also it is provided that where a Bhumidhar uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector-in-charge of the Sub-Division may suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect. In this section also there is nowhere provided that such Bhumidhar should be plaintiff or defendant. 14. In this section also there is nowhere provided that such Bhumidhar should be plaintiff or defendant. 14. In the present case the defendants are admittedly holding as Bhumidhars, therefore, issue No. 6 ought to have been referred for finding to the S.D.O. Even though if taken for granted that the plaintiff was not co-Bhumidhar or that he was no occupying the disputed land and the defendants were occupying but if even the plaintiff had any co-Bhumidhari right based on legal title the defendants either being co-Bhumidhars or being exclusive Bhumidhars, if they are using the land for non-agricultural purpose hence issue No. 6 for declaration under S. 143 of Act I of 1951 is mandatory according to the provisions of Section 331-A (1) of Act I of 1951. Therefore, in my considered opinion both the courts below erred in not holding so and in not remitting the issue to the S.D.O. for decision of that issue according to the provisions of Section 143 of Act I of 1951 and wrongly derived inference from note 4 on that Section in Sri Shukla's commentary which only meant that the Section was inapplicable where plaintiff only claimed to be Bhumidhar but was no so then the section was inapplicable. That note had not dealt when the land was held as Bhumidhar by defendants. 15. In view of the above the recommendation cannot be accepted and the revision application is liable to be allowed. 16. In view of the above, this revision application is allowed. The orders passed by both the courts below are set aside and the trial court is directed to refer issue No. 6 to the S.D.O. if he himself is not the trial court for decision of issue No. 6 according to Section 143 of Act I of 1951 and if the trial court is S.D.O. himself to decide that issue in the prescribed manner and to grant the required declaration if the land in suit is not used for purpose connected with agriculture.