DAHDEO SINGH Vs. JAGDISH SINGH AND OTHERS

JUDGEMENT

(1.) This is an appeal by Dahdeo Singh defendant, against the order of the Civil Judge of Ghazipur setting aside the order of abatement u/S. 5(2) of the UP Consolidation of Holdings Act (hereinafter referred to as the Act) passed by the Munsif Saidpur at Ghazipur and at the same time remanding the suit for a fresh hearing after recording the evidence of the parties. The learned Civil Judge also held that the appeal preferred against the order of abatement was maintainable. Even if no appeal lay against the order of abatement passed by the Munsif this Court can in exercise of its revisional jurisdiction consider suo motu the legality of the order of abatement passed by the Munsif and if it be found that the order is against the law and the learned Civil Judge had passed a correct order on merits, this Court can by dismissing the F.A.F.O. maintain the order of the Civil Judge.

(2.) The material facts of the case are that the present suit for the demolition of the unauthorised constructions on agricultural land and in the alternatively for possession was instituted in 1963 at a time consolidation proceedings were pending in the village. The notification u/S. 52 of the Act was published in 1964. S. 5 was, however, amended in 1966 by deleting cl. (b) and adding sub -S. (2) to S. 5. Prior to the amendment of S. 5, the hearing of suits covered by this Sec. had to be stayed and on the publication of the notification u/S. 52 such suits had to be decided in accordance with the decision of the consolidation authorities. In other words, the suits had to be finally decided by the court before whom such suits were pending, though on questions decided by the consolidation authorities their finding had to be accepted and made the basis of judgment. However, after the amendment of S. 5 in 1966 such suits stood abated. It was made clear in cl. (b) of S. 5(2) that the abatement of the suit shall be without prejudice to the rights of the persons affected to agitate the rights or interest before the consolidation authorities under and in accordance with the provisions of the Act and the rules made thereunder.

(3.) By virtue of S. 5 of the Act, as it then stood, the hearing of the suit had been stayed, but after the amendment of S. 5 the question arose whether the hearing of the suit could proceed or it had by virtue of amended S. 5(2) stood abated. The learned Munsif was of the opinion that the suit stood abated.