DEOKI NANDAN, J. This is a defendants second appeal in a suit for partition. The appellants are respectively Krishna Pal Singh, defendant no. 3; Smt. Savitri Devi, Km Sushma, Km. Babli and Papoo, legal representatives of deceased Mahendra Pal Singh, defendant no. 4; and Jogendra Pal Singh, defendants no. 6. A cross objection filed by Ram Niwaz, defendant no. 1, on 15th March, 1974 was rejected by this Courts order dated 9th July, 1974 on account of insufficiency of Court fees. The land in suit appears to have been taken on lease on 19th February, 1951 jointly by the plaintiffs and the defendants from the then Zamindar before the abolition of Zamindari, but it appears that after the abolition of Zamindari, ihe parties obtained a Bhumidhari Sanad and became bhumidhars of the land. The plaintiffs claimed l/5th share in the land in suit. There are constructions-on the land which are in two parts; one towards north and the other towards-south. The land in between the two sets of constructions is vacant. The first defendant admitted the plaintiffs claim but pleaded that he had never refused to partition the property out of Court, and prayed that his l/5th share may also be separated. The second defendant also pleaded that his share in the land is 1/5 but said that he and the father of defendants nos. 3 to 6 who also had a l/5th share in the land, were close relations and they had jointly made constructions on the northern part of the land on their 2/5th share. The investment of the two- parties in those construction was equal. It was further pleaded that defendants nos. 2 to 6 were in possession of their portion of the land and the constructions raised by them, to the exclusion of the plaintiffs and the other defendants. There was no objection to the plaintiffs or the other defendants being given their share from the remaining southern portion of the land. Partition inter-se was also claimed by the second defendant from defendants nos. 3 to 6 in respect of the northern part of the land which was said to belong to them to the exclusion of the plaintiffs and the other defendants. In the alternative it was further pleaded that if the case so set up was not proved, the second defendant and defendants nos. 3 to 6 in respect of the northern part of the land which was said to belong to them to the exclusion of the plaintiffs and the other defendants. In the alternative it was further pleaded that if the case so set up was not proved, the second defendant and defendants nos. 3 to 6 should be allowed their respective 1/5 share in the whole of the property. Defendants nos. 3 to 6 were the main contesting defendants. They pleaded that the names of defendants nos. 2 and 7 were fictitiously shown in the lease and that they the defendants nos. 3 to 6 were entitled to a 2/5 share. They further pleaded that there was a private partition of the land in the year 1957 when they the defendants nos. 3 to 6 were given a 2/5 share of the land on the northern side while defendant no. 8 was given his 1/5 share on the southern side, and the plaintiffs were given their 1/5 share adjoining to the share of defendant no. 8; and defendant no. 1 was given his 1/5 share adjoining the portion of defendants nos. 3 to 6; and that the parties were in separate possession of their respective shares so allotted to them at the said private partition. They further pleaded that they had some land towards the north apart from the land in suit; which they had added on the north of their 2/5 portion of the land in suit, The suit was said to be barred by previous partition and the construction on the northern portion of the land were stated to be the exclusive property of defendants nos. 3 to 6, and those on the southern side to be the exclusive property of defendant no. 8. Defendants nos. 7 and 8 supported defendants nos. 3 to 6. The plaintiffs filed an applica tion. The following were the issues on which the parties went to trial : "1. Whether the name of defendant nos. 2 and 7 in the patta and Sanad of the land were fictitious ? 2. Whether the land in dispute was partitioned in 1957 as alleged by defendants 3, 4 (Sic ). 3. Whether the constructions on the disputed land was made by parties jointly and with joint funds ? 4. Whether the disputed constructions were raised by defendants 3 to 6 and 8 ? 2. Whether the land in dispute was partitioned in 1957 as alleged by defendants 3, 4 (Sic ). 3. Whether the constructions on the disputed land was made by parties jointly and with joint funds ? 4. Whether the disputed constructions were raised by defendants 3 to 6 and 8 ? If so its effect ? 5. Are plaintiffs and defendants 1, 2 estopped as alleged in para 15 of the W. S. of defendant 3 ? 6. Is the suit undervalued and Court fee paid insufficient ? 7. Had plaintiff and defendant no. 1, 2 and been in possession of the construction and land beneath it ? If so its effect ? 8. What are the shares of the plaintiff and defendants separately ? 9. Relief. Issue no. 6 was not pressed before the trial Court. On issue no. 1, it found that the name of Sugan Chand, the second defendant was not fictitious in the lease or in the revenue papers and that he had a 1/5 share in the land in suit. On issues nos. 2, 3 and 4, which were taken up together for consideration by the trial Court, it held that the land was partitioned in 1957 between the parties, in the manner claimed by defendants nos. 3 to 6 and that separate constructions were made subsequently by defendants nos. 3 to 6 and defendant no. 8, and not jointly by the parties from joint funds. On issue no. 5, the trial Court held that the conduct of the plaintiffs and defendants nos. 1 and 2 in not objecting to the raising of the separate construction estopped them from claiming that no partition had taken place. On issue no. 7, it held that want of possession did not bar the plaintiffs from claiming the relief and in view of the said findings, it held on issue no. 8 that the suit for partition was not maintainable by the plaintiffs, and the private partition barred the main tainability of the suit. The share of the plaintiffs was, however specified in the vacant land and it was said that he could take possession of the same, but neither the plaintiffs nor the first defendant could get the relief of partition claimed by them. On the other hand the trial Court held that defendant no. The share of the plaintiffs was, however specified in the vacant land and it was said that he could take possession of the same, but neither the plaintiffs nor the first defendant could get the relief of partition claimed by them. On the other hand the trial Court held that defendant no. 2 is entitled to 1/5 share out of the 7 biswas of land in the portion marked A B C D in the plan, 101/c-2, and while dismissing the claim of the plaintiffs and defendant no. 1 it decreed the claim of -defendant no. 2 and defendants nos. 3 to 6 accordingly. Three appeals were filed before the lower appellate Court. Civil Appeal No. 329 of 1969 was filed by the plaintiffs; Civil Appeal No. 328 of 1969 was filed by defendant no. 2; and Civil Appeal No. 3 of 1970 by defendant no. 1. The lower appellate Court heard the three appeals together. The plaintiffs contention in their appeal was that the finding that there was a private parti tion was incorrect, and that the property still continued to be joint and even the constructions were joint property. The second defendants appeal was confined to the grievance that although his case was substantially upheld yet he was deprived of the costs of the suit from defendants nos. 3 to 6. It appears that defendants nos. 3 to 6 had filed a cross-objection in that appeal. The first defendants appeal was similar to that of the plaintiffs. The lower appellate Court first took: up for consideration the question whether the land in suit had been privately partitioned between the parties. The question, according to the lower appellate Court, had two facets, one of fact and the other of law. But, observed the lower appellate Court that before taking up that question it would be proper to consider the question whether the second defendant had any share in the land or that his name in the lease-deed was shown fictitiously; and on this question the lower appellate Court confirmed the finding of the trial Court that Sugan Chand, the second defendant had a l/5th share in the property. On taking up the question of private partition, the lower appellate Court prefaced its findings with the observation that the defence case could not be accepted either as a fact or within the sphere of law. On taking up the question of private partition, the lower appellate Court prefaced its findings with the observation that the defence case could not be accepted either as a fact or within the sphere of law. " The lower appellate Court took up the legal aspect first and observed that the parties who were co-tenure holders "could not possibly embark on an effective partition, as may be recognised in the eye of law, without the coucurrence of the lessor or the State, as the case may be. " The Gaon Sabha and the State were necessary parties to a suit for partition or division of holdings. The Bhumidhari Sanad was found to have been obtained in October, 1958, after the alleged date of oral partition in 1957. The fact of obtaining a Bhumidhari Sanad Jointly by the parties was, according to the lower appellate Court, inconsistent with the defence case of partition in 1957. The lower appellate Court also held that the absence of Sugan Chand, the second defen dant who has been found to be one of the co-tenure holders, was fatal and any scheme of partition arrived at behind his back could not merit recognition. The lower appellate Court considered other evidence too and held that there was no private partition in fact and there was none in law. The lower appellate Court then took up the contention that the land was being used as a building site. On this the lower appellate Court referred to Section 143 of the U. P. Zamindari Abolition and Land Reforms Act, and held that mere user of a holding for a purpose not connected with agriculture will not strip the land of its Bhumidhari character. It will continue so long as a declaration under sub-section (1) of Section 143 was not obtained. The lower appellate Court then took up the case of defendants nos. 3 to 6 that a portion of the land on the north was not covered by the lease and disbelieving the same held that the alleged excess area must be treated to be an accretion to the holding itself and, therefore, a part of it. The lower appellate Court then took up the case of defendants nos. 3 to 6 that a portion of the land on the north was not covered by the lease and disbelieving the same held that the alleged excess area must be treated to be an accretion to the holding itself and, therefore, a part of it. The next question considered by the lower appellate Court was whether In the absence of a declaration under Section 143 of the U. P. Zamindari Abolition and Land Reforms Act, the Civil Court could order a division of the holdings; and held that it could not do so and also held that although a suit for division of holdings lay before the revenue Court and the Gaon Sabha was a necessary party thereto, yet in view of sub-section (1-A) of Section 331 of the U. P. Zamindari Abolition and Land Reforms Act, the objection to jurisdiction could not be entertained by the Civil Court and the suit could not be thrown out on the ground of want of jurisdiction. Having arrived at these conclusions, the lower appellate Court observed that "such relief or reliefs must be made available to the suitors as they may be found entitled to even in case the basic relief desired by them could not be actually granted;" and that "since the prayer for division or partition cannot be allowed. . . . . . . . . it should be fair to grant a declaration signifying the status in which the joint property was being held and enjoyed by the parties" and that "such a declaration appears to be an efficacious relief in face of the various-pleas set up by some of the defendants. " Without entering into the merits or the demerits of the findings arrived at by the lower appellate Court, learned counsel for the defendant-appellants, namely, defendant no. 3; the legal representatives of defendant no. 4, and defendant No. 6, urged that the lower appellate Court fell into an error in not noticing the provisions of Section 331-A of the U. P. Zamindari Abolition and Land Reforms Act. 3; the legal representatives of defendant no. 4, and defendant No. 6, urged that the lower appellate Court fell into an error in not noticing the provisions of Section 331-A of the U. P. Zamindari Abolition and Land Reforms Act. The provision reads as under :- "331-A. Procedure when plea of land being used for agricultural pur poses is raised in any suit : (1) 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 or 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 Sec tions 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-Divi sion for the decision of that issue only; Provided that where the suit has been instituted in the Court of Assistant Collector-in-charge of the Sub- Division, it shall proceed to decide the question in accordance with the provisions of Sections 143 or 144, as the case may be. (2) The Assistant Collector-in-charge of the Sub-Division after re-framing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under Sections 143 or 144, as the case may be, and return the record together with his finding thereon to the Court which referred the issue. (3) The Court shall then proceed to decide the suit accepting the finding of the Assistant Collector-in- charge of the Sub-Division on the issue referred to it. (4) The finding of the Assistant Collector-in-charge of the Sub-Divi sion on the issue referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Court which referred the issue. (4) The finding of the Assistant Collector-in-charge of the Sub-Divi sion on the issue referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Court which referred the issue. " In the predicament in which the lower appellate Court felt itself placed the lawful course for it to adopt was to remit an issue to the Assistant-Collector-in-charge of the Sub-Division for a finding whether the land is or is not used for purposes connecting with agriculture, horticulture or animal husban dry (including pisciculture and poultry farming) and if the Assistant Collector found that the land was in fact not being used for agricultural purposes, the effect of that finding would have been tantamount to a declaration under Sec tion 143 of the U. P. Zamindari Abolition and Land Reforms Act, and the con fusion and the multiplicity of proceeding into which the parties have been driven by the judgment of the lower appellate Court would have been avoided. Now, the reason for the defendants not raising the plea of jurisdiction was that their main plea related to the constructions on the land in suit. It does appear that there are constructions existing on the land in suit. The plaintiff wanted a partiton of the land which involved a division of the holding. A suit for division of a holding is entertainable only by the revenue Court, Defendants Nos. 3 to 6 and 8 had according to the case set up by them, raised the constructions. Being co-bhumidhars, they could use the land for any purpose including the purpose of raising constructions on the land. Having heard learned counsel for the parties, I am of the opinion that the proper course in the suit giving rise to the present second appeal was to remit an issue to the Assistant Collector-in-charge of the Sub-Division for a finding whether the land in suit is or is not being used for agricultural purposes. In case the finding is that the land is not being used for agricultural purposes that finding would be tantamount to a declaration under Section 143 of the U. P. Zamindari Abolition and Land Reforms Act, and in the event the Civil Court can proceed to pass a decree for partition to give effect to the finding already arrived at in the suit. On the other hand if the finding is that the land is still being used for agricultural purposes, the only course left for the Civil Court would be to dismiss the suit on the ground that the Civil Court had no jurisdiction and that the parties could if they were so minded institute a suit for partition under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act, in a revenue Court of competent jurisdiction. I, therefore, allow the appeal, set aside the decree under appeal and remand the suit for further hearing by the trial Court with the direction that the trial Court shall remit the issue whether the land in suit is or is not being used for agricultural purposes, to the Assistant Collector-in-charge of the Sub-Division, under Section 331-A of the U. P. Zamindari Abolition and Land Reforms Act. If the finding returned by the Assistant Collector-in-charge of the Sub-Division is that the land is not being used for agricultural purposes, the trial Court shall proceed to decree the suit for partition in accordance with the findings already arrived at and pass a final decree for partition after preparing a scheme for partition and division of land. On the other hand if the finding returned by the Assistant Collector-in-charge of the Sub- Division is that the land is still being used for agricultural purposes, the trial Court shall dismiss the suit with the observation that the parties can if they are so minded file a suit for division of the holding under Section 176 of the U. P. Zamindari Aboli tion and Land Reforms Act in a revenue Court of competent jurisdiction. Under the circumstances I would direct the parties to bear their own respective costs in this Court. The costs already incurred in the two Courts below and which may be incurred in future shall be in the discretion of the trial Court. .