GORAKH NATH DUBE Vs. HARI NARAIN SINGH

JUDGEMENT

(1.) The Plaintiff-Appellant, Gorakh Nath Dube, before us by grant of special leave against the judgment and decree of the High Court of Allahabad allowing a Defendants' second appeal, had filed a suit for the cancellation of a sale deed, dated 12-4-1932, to the extent of a half share claimed by the Plaintiff in fixed rate tenancy plots on a payment of Rs. 250/-, or, whatever sum the plaintiff may be found liable to pay, and, after cancellation of the sale-deed to the extent of the plaintiff's share, for an award of possession of the plaintiff's share. There was no prayer for partition, and, by asking for possession of his share, the plaintiff could only be seeking joint possession after declaration of rights claimed. The plaintiff based his claim in the fixed rate tenancies on the ground that, although, the vendor Sukhpal Dube, his uncle, had, on 28-9-1912, ostensibly singly and separately purchased the plots, which were the subject matter of the impugned sale, yet, actually, this was an acquisition on behalf of the joint Hindu family which provided the funds for the purchase of the plots. The Trial Court had dismissed the plaintiff's suit on 4-1-l960. The learned District Judge of the Jaunpur had allowed the plaintiff's appeal and decreed the suit on 30-4-1962. The Defendant-Respondents before us then filed a second appeal in the High Court on 18-8-1962 which was admitted for hearing. During the pendency of the second appeal, a notification under Section 4 of the U. P. Consolidation of Holdings Act of 1954 (hereinafter referred to as 'the Act') was published in the Government Gazette on 22-10-1966 declaring that village Kukuripur, in which the plots in dispute were situated, had come under consolidation operations. Consequently, the Defendants-Appellants filed an application under Section 5 of the Act in the second appeal. The High Court, by its Judgment dated 5-5-1967, after dismissing the Defendant's application under Section 5 of the Act, dealt with the merits of the case and accepted the appeal of the Defendants-Respondents.

(2.) Learned Counsel for the Defendants-Respondents has taken a preliminary objection to the hearing of this appeal on merits by us on the ground that the High Court should have held that the plaintiff's suit before it had abated under the provisions of Section 5 (2) of the Act which reads as follows:

(3.) The learned Judge who heard and disposed of the second appeal held that Section 5 did not apply to a case in which possession could be granted only after cancellation of a sale deed to the extent of half before awarding possession.