JUDGMENT R.P. Gupta, M. - The point to be determined by this Bench is whether an unrecorded co-tenant can file a suit for partition without seeking the relief of declaration under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act or not. 2. This point was referred to this division bench due to the different opinions of the Members of the Board of Revenue in different cases. 3. The contention of the learned counsel for the appellant was that it was necessary for the plaintiff to sue for declaration also if he is not a recorded co-tenant. If his rights are determined in suit under Section 176 of U.P. Zamindari Abolition and Land Reforms Act when State Government is not a necessary party, it will amount to declaration of rights as provided under Section 229-B of the Act but such declaration will be bad in law in the absence of the State Government which is a necessary party under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act. 4. According to the learned counsel, for the respondents, it is immaterial whether a person is recorded as co-tenant or not. If he has a share in the holding, he can use for partition under Section 176 of U.P. Zamindari Abolition and Land Reforms Act. He should not be forced to sue for declaration also. The section does not provide that an unrecorded co-tenant cannot sue. 5. We have considered the arguments advanced by the learned counsels for the parties and the rulings relied upon by them. 6. First of all let us examine various provisions of U.P. Zamindari Abolition and Land Reforms Act in this respect. 7. The suit for declaration is provided under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act in which Gaon Sabha is a necessary party but the State Government is not a necessary party, while the suit for declaration is provided under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act where the State Government and Gaon Sabha both are necessary parties. This difference between two section is due to the fact that the suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act is filed for the declaration of rights. This declaration may affect the rights of the Sate in some cases specifically when the plaintiff is an unrecorded tenant. This difference between two section is due to the fact that the suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act is filed for the declaration of rights. This declaration may affect the rights of the Sate in some cases specifically when the plaintiff is an unrecorded tenant. It explains why the State Government is made a necessary party by the statue in such a suit. It is to be remembered that under Section 6 of the U.P. Zamindari Abolition and Land Reforms Act all the rights, titled and interest of all the intermediaries vested in the State which was resettled with the tillers of the soil as Bhumidhar, Sirdar, Adhivasi and Asami. After the vesting the names of these Bhumidhars, Sirdars, Adhivasi or Asami were recorded in the record of rights maintained under the U.P. Land Revenue Act which are to be presumed as correct under Section 44 of the U.P. Land Revenue Act. When the suit for partition is filed by a recorded co-tenant it is a simple suit for partition of share in which declaration of rights are not involved. But when an unrecorded co-tenant files a suit for a partition of the holding, he in fact challenges the presumption of the correctness of the Revenue entries. Such a suit no longer remains a simple suit for partition in which only the separate shares of the co-tenant holders are to be determined, but it becomes a suit for declaration also. Whether claim of an unrecorded person as co-Bhumidhar Sirdar or Asami is correct or not, is to be determined in a suit for declaration under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act. It may be argued that the declaration as sole Bhumidhar etc. may effect the rights of the State but not the declaration as co-Bhumidhar etc. as by such declaration the persons recorded as Bhumidhar etc. is affected and not the State Government. We do not agree with it. The right of a Bhumidhar, Asami etc. are extinguished under Section 190(1) (a) of U.P. Zamindari Abolition and Land Reforms Act when he died having no heir entitled to inherit him in accordance with the provision of the Act. His property re-vests in the State. is affected and not the State Government. We do not agree with it. The right of a Bhumidhar, Asami etc. are extinguished under Section 190(1) (a) of U.P. Zamindari Abolition and Land Reforms Act when he died having no heir entitled to inherit him in accordance with the provision of the Act. His property re-vests in the State. In case a person having no rights or title is recorded as co-tenant, he may succeed under Section 175 of the U.P. Zamindari Abolition and Land Reforms Act in case of heir less death of that person which may effect the rights of the State Government. Where a suit, for partition is filed by a recorded tenant, there would be no need for State Government to interfere and as such State Government was not made a necessary party in a suit under Section 176 of U.P. Zamindari Abolition and Land Reforms Act. If an unrecorded tenant files a suit for partition which involves the declaration of his rights also, such a suit is to be filed under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act also after adding the State Government as party in accordance with law. 8. As regards the decided cases, the point in question is not yet decided, to the best of our knowledge by the Hon'ble High Court or the Hon'ble Supreme Court. The learned counsels for the parties also did not rely on any ruling of the Hon'ble Allahabad High Court or the Hon'ble Supreme Court on the point. 9. The matter came up before the Board of Revenue in Nathu v. Bhurey Singh 1964 A.L.J. 57 (Revenue). This case was decided by the Members Sarvasri R.R. Mathur and S.N. Mitra. While deciding the case Mr. Mathur observed as follows:- "The learned counsel for the respondent, on the other hand urged that a suit for division under Sec. 176 presupposes that the plaintiff is a co-sharer and, where the title of the plaintiff to being a co-sharer is denied and the plaintiff is not recorded as a co-sharer it becomes necessary for such a plaintiff to maintain a suit for declaration also. The learned counsel urged that in this case as the plaintiff-appellant had not brought the suit under Section 229-B and has not impleaded the State Government as a necessary party, hence the learned lower appellate court was right in accepting the first appeal and dismissing the suit. I, do not agree with this contention. The frame of the suit depends on the allegations made in the plaint. In this case the plaintiff has urged that he was a co-share holder on the ground that the holding was an ancestral holding of the parties who were the descendants from a common stock. On the denial for the plaintiff's title, it, therefore, did not become necessary that the plaintiff must convert his suit for a declaration under Section 229-B although it was necessary for the court below to frame an issue and decide whether the plaintiff was a co-sharer in the holding or not. If the courts below considered that in such a case the State Government was a necessary party then the court had also the power to implead the State Government under order I, Rule 10(2) C.P.C., but the case should not have been dismissed for want of the State Government as no suit can be defeated by reason of misjoinder or no-joinder or parties vide order I, Rule 9 C.P.C. I consider that in a a case of this nature, it would be proper to implead at the State Government as a necessary party for determining the title of the plaintiff-appellant. But, as has already been stated above, the suit could not be thrown out for want of a necessary party." 10. These observations of the learned Member Sri Mathur were subject to the concurrence of the other Member Sri S.N. Mitra who gave his concurring order in the following terms :- "This case has for concurrence. My learned colleague has proposed to remand the case to the lower court. It would perhaps be advisable for the lower court to give a finding whether (1) Smt. Ram Rati is daughter of Roshan Singh (2) she is married or unmarried. If Smt. Ram Rati is found to be unmarried daughter of Roshan Singh, she may be impleaded and her rights considered by the lower court. With this modification I concur with the proposed order." 11. If Smt. Ram Rati is found to be unmarried daughter of Roshan Singh, she may be impleaded and her rights considered by the lower court. With this modification I concur with the proposed order." 11. Thus it is clear that Sri S.N. Mitra, Member concurred with the order of remand to trail court to implead State Government. It means that both the members thought that State Government was necessary party as the suit for partition filed by unrecorded co-tenant involved the declaration of his rights. The learned counsel for the respondent interpreted this case as a ruling of the previous division bench to the effect that it is not necessary for an un-recorded tenant to file a suit for declaration of title under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, which relief can be given in the suit under Section 176 of U.P. Zamindari Abolition and Land Reforms Act itself. We do not agree with this interpretation. In our opinion this case is an authority on the point that the suit should not have been dismissed for non-joinder of State Government who should have been impleaded by the Court under Order, I, Rule, C.P.C. It was not held in this case that the suit does not become one for declaration of rights also where U.P. Government was not a necessary party. This bench consisting of the learned Members Sri Mathur and Sri Mitra remanded the case to the trial court for impleading the State Government and not to the appellate court for deciding the appeal even in the absence of the State Government. Thus this case is not in conflict with our view but rather supports it. 12. Sri S.N. Mehrotra, Member, Board of Revenue in Ram Charan Singh v. Udai Narain Singh 1970 R.D. 383 held that Section 176 of the Act nowhere lays down that only a recorded co-tenant could bring a suit for division of the holding. According to Section 176 a Bhumidhar or Sirdar may sue for division of holding, but in every such suit the Goan Sabha concerned shall be made a party. This section nowhere lays down that the State Government will be a necessary party in a suit for division of the holding. According to Section 176 a Bhumidhar or Sirdar may sue for division of holding, but in every such suit the Goan Sabha concerned shall be made a party. This section nowhere lays down that the State Government will be a necessary party in a suit for division of the holding. In this case learned Member failed to see that such a suit in fact also become a suit for declaration under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act. We are of the opinion that this ruling is not a good law. 13. In another case Sri P.P. Bhatnagar, Member, Board of Revenue, U.P. Rameshwar v. Chhotey Lal 1972 R.D. 76, observed as follows:- "Where all the parties are recorded as tenure-holders, there is no question of declaration of rights of any body; the only thing to be determined is the respective share of each. Where any of them is not a recorded tenure-holder and his rights are challenged, the suit becomes one for declaration of his rights as well as for division. A suit for declaration is covered by Section 229-B of U.P. Zamindari Abolition and Land Reforms Act in which the State Government is a necessary party. This case supports our view." 14. The case of Jagmohan v. Smt. Har Kunwar 1974 R.D. 313 was a case where the plaintiff was a record co-tenant. In this case Mr. Saiyid Husain, Member, Board of Revenue observed that by the mere denial of the title of the plaintiff, a recorded co-tenure-holder, as co-tenure-holder by the defendant, the U.P. State Government cannot be asked to give and file a written statement. It was held that the suit was not bad for nonjoinder of U.P. State. Thus this case is not in conflict with our view. 15. In Ramesh Chandra v. Panna Lal 1977 A.W.C. 125 (Revenue) Mr. P.C. Saxena, Member observed that the U.P. Zamindari Abolition and Land Reforms Act has a specific section which provides for declaration of a title of a person not already recorded as a Bhumidhar or Sirdar. Such declaration of title cannot be given in suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act. He has taken the same view in the unreported case Second Appeal No. 166 of 1972-73 Aligarh Smt. Mina Devi v. Hom Datt Decided on May 10, 1978. Such declaration of title cannot be given in suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act. He has taken the same view in the unreported case Second Appeal No. 166 of 1972-73 Aligarh Smt. Mina Devi v. Hom Datt Decided on May 10, 1978. This view is in conformity with with our view as already discussed. 16. We are of the opinion that an unrecorded co-tenant cannot file a suit for partition only under Section 176 U.P. Zamindari Abolition and Land Reforms Act, without seeking the relief of declaration under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act. 17. Let our this opinion, be put up before the Member concerned, on the point referred.