JUDGMENT P. Singh, I.A.S., Member. - This second appeal is directed against the judgment and decree passed by Virendra Kumar Channa Commissioner, Kumaon Division, Nainital, dated 25-11-81. 2. The facts in brief are that Gurubakhsh Singh son of Lal Singh, filed a suit under Section 229-B of U.P. Act I of 1951 against Charan Das, State of U.P. and Gaon Sabha on the allegations that he was in adverse possession of the land in dispute for about twenty years and as such he had acquired tenure-holder's rights in respect of the land in dispute, that he had acquired his rights prior to January 1970 when Tenancy Act was applicable to the land and when U.P. Zamindari Abolition and Land Reforms Act came into force, he became sirdar of the land in dispute. The suit was contested by the State of U.P. alleging that the land was of public utility and no rights could accrue to the plaintiff-appellant. The suit was dismissed by the trial court. Against that an appeal was preferred before the learned Commissioner, who held that the tenure-holder had abandoned the holding and as such no rights could accrue in respect of such land. 3. I have heard the learned counsel for the appellant and the learned DGC (R) and have perused the record. 4. The learned counsel for the appellant submits that the procedure prescribed under Section 186, U.P.Z.A. and L.R. Act was never followed and it has not been held that the land in suit was abandoned by the tenure-holder, that State of U.P. had filed a suit under Section 209 for the ejectment of the appellant which was pending before the Sub-Divisional Officer, Kashipur, and as such possession of the appellant was admitted by the parties concerned. Learned DGC (R) appearing for the State and Gaon Sabha submits that from the extract of khasra it is evident that the name of Prayag Appellant was entered under class 5 in 1869 Fasli and the procedure for recording name under class 5 was not followed, and as such any rights on the basis of those entries could not accrue to the plaintiff-appellant. Against this, the learned counsel for the appellant submits that the possession of the appellant was there on the land and in suit and as such those entries were correct entries and were based on the fact of possession. Against this, the learned counsel for the appellant submits that the possession of the appellant was there on the land and in suit and as such those entries were correct entries and were based on the fact of possession. The learned Commissioner also says that from 1373 Fasli Charan Das, the original tenure holder was recorded as an absconder, meaning thereby that the land was abandoned and the land vested with the Gaon Sabha. The learned counsel for the appellant submits that no proceedings under Section 186 of U.P. Act I of 1951 were ever taken and, consequently, abandonment of land was not correct. 5. From the extract of khatauni of 1368 Fasli to 1382 Fasli, it appears that Charan Das had been recorded as 'Farar' in 1373 Fasli. The learned counsel for the appellant submits that the entry in respect of abandonment could have been done only by following the procedure prescribed under Section 186 of U.P. Act I of 1951 and by following the procedure prescribed under Rules 168 and 169 of the U.P.Z.A. & L.R. Rules. 6. Section 186 of U.P. Act I of 1951 reads as under : - "186. (1) Where a bhumidhar with non-transferable rights (other than a minor, lunatic or idiot) or asami has not used his holding for a purpose connected with agriculture, horticulture or animal husbandary which includes pisciculture and poultry farming for two consecutive agricultural years, the Tahsildar may on the application of the Gaon Sabha of the land-holder or on facts coming to his notice otherwise, issue a notice to such bhumidhar with non transferable rights or asami, as the case may be, to show cause why the holding be not treated as abandoned. (2) The application shall contain such particulars as may be prescribed, (3) If the Tahsildar find that the application has been duly made, he shall cause to be served on the bhumidhar with non-transferable rights, or the asami or publish in the manner prescribed a notice in the form to be prescribed requiring him to appear and show cause on a date to be fixed why the holding be not held as abandoned. (4) If the bhumidhar with non-transferable rights or the asami does not appear in answer to the notice, or appears but does not contest it, the Tahsildar shall declare the holding as abandoned and thereupon, except as provided in Section 172, the holding shall be deemed to be vacant land : Provided that no declaration under this Sub-section shall be made in respect of a holding or any part thereof, if the same has been mortgaged by the bhumidhar with non-transferable rights under sub-section (1) of Section 153 and the mortgage has not been fully redeemed in which case the Tahsildar shall move the Collector for the realisation of the loan in such manner as may be prescribed. (5) If the bhumidhar with non-transferable rights or asami appears to contract the notice, the Tahsildar shall drop the proceedings." 7. It is evident from the provisions contained under Section 186 that an application has to be moved for a declaration that the holding has been abandoned by the tenure holder. Format of the application and the procedure have been prescribed under Rules 168 and 169 of the U.P.Z.A. & L.R. Rules which read as under :- "Rule 168. An application under Section 186 for declaration that a holding has been abandoned shall contain the following particulars : (a) The name of the village, Pargana and tahsil in which the holding is situate. (b) The name, percentage and address of the tenure-holder against whom the declaration is sought. (c) Khasra numbers and area of the plots. (d) Land revenue or the rent as the case may be. R. 169. (1) Upon receipt of the application or on facts coming to his notice otherwise the Tahsildar shall issue notice to the tenure-holder in Z.A. Form 56 to show cause why he should not be deemed to have abandoned the holding; Provided that if the notice is not served in person the Tahsildar may publish the same in accordance with the provisions contained in Section 197 of the Land Revenue Act, 1901, at the cost of the applicant. (2) If the tenure-holder does not appear in spite of services or publication of the notice as laid down in sub-rule (1), or if the tenure-holder appears and does not contest the notice, the Tahsildar shall, except where the holding or any part thereof has been mortgaged under sub-section (2) of Section 153 and the mortgage has not been fully redeemed, declare the holding as abandoned and order the annual registers to be corrected accordingly. If the tenure-holder appears and contests the notice, the Tahsildar shall drop the proceedings. (3) In case the holding or any part thereof is found to be mortgaged under sub-section (2) of Section 53, and the mortgage not fully redeemed, the Tahsildar shall suspend the proceedings and report the matter to the Collector for realisation of the loan." 8. It is evident from the provisions of law as mentioned above that it is the Tahsildar who has to make a declaration that a particular holding has been abandoned and before doing that, a notice has to go to the tenure-holder in Form 56 to show cause why it should not be deemed that the tenure-holder has abandoned the holding. Thereafter the Tahsildar has to proceed for declaration as provided under the law. In the instant case it is not known whether such a declaration has been made or not as there is no order on the trial court's file, and unless it is established that the original tenure-holder had abandoned the holding, the question of land being abandoned could not have been decided. 9. Learned DGC (R) appearing for State and Gaon Sabha submits that the entries in khasra were made after the declaration would have been done by the Tahsildar concerned. If it is the case, then that matter should have been looked into by the trial court. The contention of the learned counsel for the appellant cannot be brushed aside that the appellant was in possession of the land in dispute against the interest of the land holder. If it is the case, then that matter should have been looked into by the trial court. The contention of the learned counsel for the appellant cannot be brushed aside that the appellant was in possession of the land in dispute against the interest of the land holder. Consequently, I find that the decision of both the courts below suffer from infirmity insofar as they have not taken notice of the fact whether the procedure prescribed for the land being declared as abandoned was followed or not and unless it is established that the land has been abandoned prior to the acquisition of rights by the plaintiff-appellant, the orders passed by both the courts below cannot be upheld, I find that both the courts below have not considered this aspect of the matter and as such their orders arc not sustainable in the eye of law. 10. Consequently, this appeal succeeds, the orders of both the courts below are hereby set aside, and the matter is sent back to the learned trial court to find out whether the land has been abandoned by the tenure-holder and a declaration has been made by the Tahsildar in accordance with the provisions contained under Section 186 of U.P. Act I of 1951 and Rules 168 and 169 of the rules framed under the Act, and thereafter it should decide the matter in accordance with the provisions of law.