JUDGMENT I.B. Singh, Member. - This is a defendant's second appeal against judgment and decree dated April 11, 1979 passed by learned Additional Commissioner, Agra Division, Agra, dismissing appeal No. 77 of 77-78, Aligarh confirming judgment and decree dated November 28, 1977 passed by Assistant Collector Ist Class, Aligarh, decreeing plaintiff's suit under Section 209 of Act, I of 1951. 2. The plaintiff filed the suit under Section 209 of Act I of 1951 for ejectment of defendant Basdeo alleging that the defendant has trespassed in 1373 Fasli over the disputed land which was given to the plaintiff on Patta by the L.M.C. 3. The suit was contested by the defendant alleging that he was in possession over the disputed land since more than 10 to 12 years; that Patta was granted to him. He was not ejected from the disputed land by the L.M.C.; that the plaintiff had never been in possession over the disputed land. 4. The trial court's file was lost per report of the Collector and it has been got reconstituted here. 5. I have heard the learned counsel for the parties and have perused the record. 6. It has been argued that the Patta of the appellant was of February 4, 1965. The defendant's Patta was not cancelled on June 3, 1968. The proceeding under rule 115-C was dropped but the possession was taken by the L.M.C. according to law and the defendant continued in possession, therefore, the land was not vacant land for being allotted to the plaiting in 1969 which was approved in 1971 and his name was mutated by order of S.D.O. in 1975 but he did not get possession that L.M.C. and Gaon Sabha were not impleaded and the suit was not maintainable, that the disputed land was not identifiable and there was no question of damages. 7. 7. It has been argued in reply that the question of identifiability was not raised in the trial court, that the Patta of the plaintiff was granted after the Asami Patta of the defendant was cancelled and the plaintiff stepped into the shoes of the L.M.C.; that in a suit under Section 209 Gaon Sabha is not a necessary party and the necessary party the State was impleaded; that the possession of the defendant if any after the cancellation of the Patta was that of a trespasser and the land had become vacant as held in 1982 R.D. page 300; that in any case provision of Section 198-A of Act I of 1951 were applicable that the suit was filed within time. 8. The Patta of the defendant-appellant was of February 4, 1965, which was cancelled on June 3, 1968 but the notice under Rule 115-C to the defendant-appellant was discharged on October 25, 1969 which was given in view of the provision of Rule 115(I) which made Rule 115-D to 115-G applicable mutatis mutandis to the proceedings for ejectment of the allottee referred to sub-section (3) of Section 198 or any person claiming through him who where of had been cancelled by Assistant Collector-in-charge of the Sub-Division. The said rule was added by notification dated August 25, 1954, which was amended by notification dated August 17, 1954 and notification dated December 29, 1957 was substituted by notification dated March 18, 1957. 9. Therefore, the recent provision of Section 198(4-A), (i)(ii) that the right and title of the lessee or person claiming through him shall cease and the collector may direct delivery of possession of such land forthwith to the Goan Sabha after ejectment, will not be applicable to the present case as this new provision is not retrospective. 10. It is admitted case of the parties that the defendant was not ejected by the Gaon Sabha and the L.M.C. after his patta was cancelled, therefore, the defendant's possession after cancellation of his Patta will not be that of a trespasser as argued in reply as it is not against the provision of the law also. 11. 10. It is admitted case of the parties that the defendant was not ejected by the Gaon Sabha and the L.M.C. after his patta was cancelled, therefore, the defendant's possession after cancellation of his Patta will not be that of a trespasser as argued in reply as it is not against the provision of the law also. 11. It is admitted case of the parties that the Patta of the plaintiff was subsequent to the date of the cancellation of the patta of the defendant but the plaintiff was not put in possession which is also admitted case in view of the suit of the plaintiff for ejectment of the defendant otherwise if the plaintiff had obtained possession the suit under Section 209 of Act I of 1951 will be infructuous. 12. The validity of the Patta of the plaintiff will have to be looked into because he will have to prove his title for maintaining the present suit. This is not a case for declaration of the rights of the plaintiff against L.M.C. and Gaon Sabha because only in such cases the validity of the patta unless got cancelled by the competent authority cannot be looked into as has been held by Board in Full Bench case in Purva Madhamik Vidyataya v. U.P. State, S.A. No. 41 of 1970-71, Mathura decided on March 19, 1981. 13. Because the defendant continued in possession according to provisions of law then prevailing even after cancellation of his Patta the land has not become vacant under the provisions of law and has not re-vested in the State and Gaon Sabha as vacant land because the defendant was not ejected from the land according to law then prevailing, therefore, the land in dispute was not vacant land under the provisions of law and the Full Bench ruling of the Board of Revenue 1982 R.D. page 300 is not applicable to the present case at all. As the land was not vacant land the Patta granted to the plaintiff was not legal and the plaintiff who could not obtain possession was not entitled to file the suit against the defendant for his ejectment. 14. That the issue of identifiability of land was framed as issue No. 2, therefore, identifiability of the land was pleaded and was in issue although it was not properly decided by the courts below. 14. That the issue of identifiability of land was framed as issue No. 2, therefore, identifiability of the land was pleaded and was in issue although it was not properly decided by the courts below. The disputed land is not identifiable being part of a greater area, its description for being identifiable was neither given in the Patta nor was given in the plaint and it has not been proved that it is identifiable. Hence it is held that it is not identifiable and the suit even if decreed, the decree cannot be executed. 15. Goan Sabha or L.M.C. have not been impleaded, they being land holder, and a necessary party. 16. The provisions of Section 198-A of Act I of 1951 cannot be applied here as for getting relief under that section a definite forum and procedure has been provided, it is a different proceeding, its aid cannot be sought in a regular suit under Section 209 of Act I of 1951. 17. In view of the matter this appeal is liable to be allowed and the judgment and decree passed by both the courts below are liable to be set aside and the plaintiff suit is liable to be dismissed with costs. 18. In view of the above, this appeal is allowed, with costs all through the judgment and decree passed by both the courts below are hereby set aside and the plaintiff's suit stands dismissed with costs his name shall be expunged from the disputed land and the name of the defendant shall be recorded.