JUDGMENT R.S. Verma, Member - This Bench has been constituted to give opinion on a matter referred to by Shri G.S. Tiwari, learned Judicial Member (Since retired). No question has been framed by the learned Member. Shri G.S. Tiwari was hearing a second appeal in a case under Section 176, U.P.Z.A. Act. The trial court had declared the shares of the parties, but had not prepared any preliminary or final decree. The aggrieved party had filed a first appeal which was dismissed by the learned Additional Commissioner on the ground that copy of decree of trial court had not been filed along with the memo of appeal. In the second appeal the learned counsels of the appellant and the respondents submitted before the court that in a case under Section 176, Z.A. Act preparation of preliminary decree was a must. In spite of this the learned Judicial Member Shri G.S. Tiwari referred the matter to a Bench since some circular of the Board of Revenue was involved. The particulars of the said circular were not given by the learned Judicial Member. 2. The matter was sent to the Chairman, Board of Revenue, requesting him to constitute a Bench. The chairman wanted to know the particulars of that circular. Full details could not be placed before the learned Chairman. Government order no. 103/Rajaswa-l/13(3)73, dated October 1974 was sent to the Secretary, Board of Revenue and in that it was mentioned that the Government considers that preparation of preliminary decree, in cases under Section 176, U.P.Z.A. Act, was against the provisions of the U.P.Z.A. and L R. Act. No reason was given in that G.O. On the basis of that G.O. the office of the Board of Revenue. Vibhag-12, Lucknow issued B.O. No. 423-89/12-76 E/74 dated January 7, 1975 to all the Collectors in U.P. directing them to issue orders to the Presiding Officers of all revenue courts that they, in future, must not prepare preliminary decrees in partition suits. In this B.O. also no reason was given. 3. It appears that hereafter some of the revenue courts stopped the practise of preparing preliminary decrees in cases under Section 176 of the U.P.Z.A. Act. In the instant case also the learned trial court did not prepare formal preliminary decree. 4. In this B.O. also no reason was given. 3. It appears that hereafter some of the revenue courts stopped the practise of preparing preliminary decrees in cases under Section 176 of the U.P.Z.A. Act. In the instant case also the learned trial court did not prepare formal preliminary decree. 4. As far as the legal position is concerned, the learned counsels for the appellant and the respondent conceded before Shri G.S. Tiwari, learned Judicial Member that preparation of preliminary decree in a suit under Section 176, U.P.Z.A. Act is a must. It appears that Shri G.S. Tiwari, learned Judicial Member agreed with this. Yet the matter had to be referred to a Bench because of the aforesaid B.O. No. 423-89/12-76 E/74 dated 7.1.75. 5. Before us Shri G.N, Verma, learned Advocate for the plaintiff, Shri D.N. Srivastava and Shri S.N. Shukla, the two learned State Government's counsels conceded that it final decree is not immediately prepared, preparation of preliminary decree is necessary. They have further said that Government's order or Board's order is not competent to change the law enacted by the Legislature, and hence G.S. No. 108/Rajaswa-1/13 (3) 73, dated October 1974 and B.O. No. 423-89/1 - 76R/74 dated 7.1.75 are illegal and they deserve to be ignored. These facts and submissions are sufficient to dispose of the matter referred to this Bench. But, as the Government and the Board of Revenue, in its administrative capacity, has given an opinion that preparation of preliminary decree is not necessary in a suit under Section 176 Z.A. Act, we would like to examine this matter in detail. As already observed above, the Government and Board of Revenue have not given any reasons to show that preparation of preliminary decree was against the provisions of U.P.Z A. Act. 6. U.P.Z A. Act does not say anything about preliminary decree or final decree it is silent on this point Section 341 of the Z.A. Act makes the C.P.C. Applicable, if there are no express contrary provisions in the Z A. Act. When the U.P Z.A. Act is silent on this point, it cannot be said that the Z.A. Act has made any contrary provisions against preparation of preliminary decrees. When the U.P Z.A. Act is silent on this point, it cannot be said that the Z.A. Act has made any contrary provisions against preparation of preliminary decrees. Hence the provisions of C.P.C. will be applicable on this point, Section 2 (2) C.P.C. lays down that "Decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Explanation .-To section 2 (2) C.P.C. lays down, that "A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely dispose of the suit. It may be partly preliminary and partly final." The definition of 'decree' was a bit changed by C.P.C, (Amendment) Act 1976 under the old definition an adjudication, in order to constitute a decree must have decided the suit or appeal, but in the new definition it is sufficient if the adjudication conclusively determines the rights of the parties, though not deciding the suit itself. This change has been made in view of the express provision recognising the distinction between preliminary and final decree. 7. In order that a decision of a court may be a 'decree', there must be now five essential elements, namely, (1), adjudication, (2) which must have been given in a suit, (3) and which must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit. (4) and furthermore the said determination must be a conclusive determination, and finally (5) there must be a formal expression of that adjudication. Now this definition of a decree fully applies to the judgment given in a partition case when, before finally affecting division of the holding, the shares of the different parties are conclusively decided. Unless there is agreement between the co-tenure-holders, such determination of the shares of each of the parties is absolutely essential. This preliminary determination of the shares of the parties is a condition precedent for proceeding further in the case. In absence of such a determination of share, actual division of the holding cannot be made. Unless there is agreement between the co-tenure-holders, such determination of the shares of each of the parties is absolutely essential. This preliminary determination of the shares of the parties is a condition precedent for proceeding further in the case. In absence of such a determination of share, actual division of the holding cannot be made. It follows from this discussion that the declaration of shares, in a partition suit, by the court comes within the definition of a decree and secondly such a decree is preliminary because it does not finally dispose of the partition suit, and further proceedings have to be taken for actual division, which alone is goal of partition suit. A preliminary decree is passed in those cases in which the court has first to adjudicate the rights of the parties and has then to stay its hand, for the time being, until it is in a position to pass a final decree in the suit. 8. The C.P.C. has provided for the passing of preliminary decree in many events, including suit for partition and separate possession, vide Order XX, Rule 18 C.P.C., which is as follows :- "Where the court passes a decree for the partition of property or for the separate possession of a share therein, then.- (1) if and in so far as the decree relates to an estate assessed to payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54 ; (2) if and in so far as such decree relates to any other immovable property or to movable property, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property, and giving such further directions as may be required" 9. Sub-rule 1 of Rule 18 of Order XX C.P.C. deals with a situation when a civil court has to try a partition suit under Section 176, U.P.Z.A. Act. Formerly partition suits were tried under Section 176, Z.A. Act by the civil court but after the passing of U.P. Act No. 18 of 1956. Sub-rule 1 of Rule 18 of Order XX C.P.C. deals with a situation when a civil court has to try a partition suit under Section 176, U.P.Z.A. Act. Formerly partition suits were tried under Section 176, Z.A. Act by the civil court but after the passing of U.P. Act No. 18 of 1956. which came into force from 28.5.1956, this jurisdiction was taken away from the civil court and was given exclusively to the Revenue Court. In this view of the matter sub-rule 1 of Rule 18 of Order XX of the C.P.C. became redundant as far as revenue courts were concerned. It appears that after this the State Government and the Board of Revenue (in its administrative department) thought that now passing of preliminary decree was not at all necessary, because the declaration about shares made in the case can be executed by the revenue court itself and will not have to be sent to the Collector or to Collector's gazetted subordinate. In the G.O and the B.O. mentioned in para 2 of this judgment, the Government and the Board of Revenue have not given any reason for holding the view that passing of preliminary decree by Revenue Courts was against the provisions of the U.P.Z.A. Act, but we think that after passing of U.P. Act No. 18 of 1956 they thought that preliminary decree was against the provisions of U.P.Z.A. Act. We do not agree with this view of the Government or the Administrative Wing of the Board of Revenue. There are several reasons for not agreeing with that. Firstly, U.P.Z.A. and L.R. Act is completely silent on this point, and hence it cannot be said that passing of preliminary decree was against the provisions of U.P.Z.A. and L.R. Act. Secondly, Order XX, Rule 18, sub-rule 1, C.P.C. was never applicable to Revenue Courts, and so the fact, that before U.P Act No. 18 of 1956 partition suits were tried by civil courts and after the passing of that Act they are tried by Revenue Courts, is hardly relevant for determining whether preliminary decree is necessary or not. Thirdly, order XX, Rule 18, sub-rule 1, C.P.C. did not contemplate the passing of a preliminary and of a final decree. Thirdly, order XX, Rule 18, sub-rule 1, C.P.C. did not contemplate the passing of a preliminary and of a final decree. The Civil Court had merely to pass a decree declaring the rights of the several parties interested in the property, the actual partition, so as to affect the Government Revenue, being left to be made by the Collector. The decree passed by the Civil Court was neither a preliminary decree nor a final decree it was just a decree. Hence no change in the concept of preliminary decree or final decree was made by the fact that now under the Z.A. Act revenue courts alone are to try suit for partition of holding under Section 176, U.P.Z.A. Act. 10. Order XX, Rule 18, sub-rule 2 of the C.P.C. is the relevant provision applicable in regard to preparation of preliminary decree. This sub-rule authorises a court to pass a preliminary decree. It is not obligatory to do so in every case. For example, if the division of the holding can be made by agreement or compromise it would not be necessary to prepare a preliminary decree, except in the cases where the area to be divided in less than three and one-eight acres. In other cases final division of the holding cannot be made without further enquiries and hence the court may pass a preliminary decree, declaring the shares of the parties in the disputed land. Actual division is to be made later on after completing the necessary enquiries. Unless the shares of the parties are declared at the first stage, actual division cannot be made. For actual division of the holding the share of each co-tenant must be declared by the court, and now this declaration has been mandatory under the U.P.Z.A. Act. 11. A combined reading of Rules 127 and 156 of the U.P.Z.A. Rules show that in a plaint under Section 176, U.P.Z.A. Act the plaintiff is required to mention his share and the shares of other co-tenure-holders. Rule 157 of the Z.A. Rules lays down that Before making a division the court shall (a) determine separately the share of the plaintiff and each of the other co-tenure-holders and (b) record which, if any, of the co-tenure-holders wish to remain joint. Rule 157 of the Z.A. Rules lays down that Before making a division the court shall (a) determine separately the share of the plaintiff and each of the other co-tenure-holders and (b) record which, if any, of the co-tenure-holders wish to remain joint. This mandatory declaration to be made by the court in a partition suit, points to the inevitability of preparation of a preliminary decree because further proceedings, that is, actual division of the holding cannot be made unless the above-mentioned two declarations are made by the Court. Moreover preparation of preliminary decree is absolutely necessary because before making actual division of the holding the court will have to make further enquiries and for that purpose it has to summon the lekhpal make valuation of the holding or holdings in accordance with the rent-rate applicable to each plot in the holding and determine separately the value of the share of the plaintiff and each of the co-tenure-holders is mandatory required by clauses (c) and (d) of Rule 157, U.P.Z A. and L.R. Rules. Not only that, A combined readings of Rules 127 to 132 U.P.Z.A. Rules show that (i) before making any partition the court shall value each plot comprised in the holding by multiplying its area by the rent-rate-applicable, (ii) it should be seen that the valuation of the portion allotted to each party shall be proportionate to his share in the holding, (iii) separate lots shall have to be prepared by the Lekhpal and (iv) a map shall be prepared and placed on the record and that map shall show in different colours the plots given to each party and if any field has been sub-divided, demarcation of the portions shall be made at the expense of the parties. 12. If the final decree can be passed at the outset, without declaring the rights of the parties and without making the required inquiry, mentioned above, it would not be necessary to prepare a preliminary decree. That can happen only in case, the parties come to terms and there is no dispute But in contested cases the notional shares of each of the parties must be determined as a preliminary step, and in that case it is incumbent upon the court to prepare a preliminary decree. That can happen only in case, the parties come to terms and there is no dispute But in contested cases the notional shares of each of the parties must be determined as a preliminary step, and in that case it is incumbent upon the court to prepare a preliminary decree. Such a declaration of the rights of the parties in a partition suit comes within the definition of a 'decree' according to Section 2 (2) C.P.C., and according to the explanation appended to Section 2, C.P.C. such a decree will be treated as preliminary decree, because mere declaration of shares was not disposed of a partition suit, and further steps are necessarily to be taken for the actual division of the holding. 13. Now we are in a position to give a well discussed answer to the referred matter. Our answer is as follows :- (1) G.O. No 103/Rajaswa-1/13 (3) 73 dated October 1974 and B.O. No. 423-89/12-76 E/74 dated 7.1.75 have been issued without any basis against the provisions of law. These orders cannot make any change in the statute law. These aforesaid orders deserve to be ignored by revenue courts. (2) Passing of preliminary decree in a partition suit is not against the provisions of U.P.Z.A. and L.R. Act nor it is unnecessary or superfluous. (3) Passing of preliminary decree can be dispensed with only when the court is in a position, at the outset, to pass a final decree. This is possible only when there is no contest. In contested cases final decree cannot be prepared without first declaring the shares of each of the co-tenure holders. (4) If the court is not in a position to pass a final decree outright it must declare the shares of each of the co-tenure holders in the land in suit. If such declaration is made it will come under the definition of preliminary decree vide Explanation to Section 2 (2) of the Civil Procedure Code. (5) In view of Rule 157 of the U.P.Z.A. and L.R. Rules a preliminary decree is a must in a partition case, under Section 176, U.P.Z.A. and L.R. Act. Reason is that this rule makes it mandatory for the revenue court to make a determination of the share of each party before the actual partition. 14. (5) In view of Rule 157 of the U.P.Z.A. and L.R. Rules a preliminary decree is a must in a partition case, under Section 176, U.P.Z.A. and L.R. Act. Reason is that this rule makes it mandatory for the revenue court to make a determination of the share of each party before the actual partition. 14. With this answer to the referred we return the file to the learned Member, having jurisdiction over the case.