BABU AND OTHERS Vs. LAL SINGH

JUDGEMENT

(1.) Heard learned counsel for the parties on Civil Misc. Abatement Application No. 264968 of 2011.

(2.) Learned counsel for the respondent moved this application with the contention that the present second appeal relates to agricultural land of gata no. 165 area 2-18-8 bigha situate in village Rampur Bidar, Pargana Boodpur, Tehsil Chandpur, District Bijnor. The above said Village Rampur Bidar, Pargana Boodpur, Tehsil Chandpur, District Bijnor has been notified under section 4 of the U.P. Consolidation of Holdings Act. Hence, appeal should be disposed of as abated as provided under section 5 of U.P. Consolidation of Holdings Act. The respondent also annexed a photocopy of enquiry dated 25.07.2011 as Annexure 1 to this application.

(3.) Learned counsel for the appellant filed counter affidavit to the said application and submitted that in fact Original Suit No. 296 of 1987 was filed by the plaintiff appellant against the defendant respondent for cancellation of sale deed dated 13.09.1984 alleged to have been executed by Smt. Lalli in favour of Lal Singh. It was also mentioned in that plaint that the above said Smt. Lalli also executed sale deed of land in dispute against the appellant on 26.01.1984. The said Suit was decreed in favour of the appellant against which the defendant preferred an appeal no. 77 of 2001. However, the said appeal was allowed by the Court below setting aside the judgement and decree passed by the trial court. Against the said judgement, this present second appeal has been filed by the plaintiff appellant. It has been submitted that the appeal has already been admitted and substantial question of law has been framed and the operation of the judgement of the Appellate Court was also stayed. It has been further submitted that the above abatement application is misconceived as it has been filed under Order 22 Rule 4(3) of the Code of Civil Procedure. However in application, it is mentioned that the Village Bidar has been notified under Section 4 of the U.P. Consolidations of Holdings Act and appeal should be disposed of as abated under section 5 of the Consolidation of Holdings Act. It is further submitted that the respondents have not filed any Gazette Notification. Only a questionnaire is not admissible as evidence. It has been further submitted that even as per the allegations of the respondent, the Gazette Notification was issued on 29.12.2007 while the Suit was decreed on 19.03.2001 and the appeal was decided on 13.04.2009 meaning thereby at the time of issuance of Gazette Notification, the Civil Appeal was pending and during the pendency of that appeal respondent did not prefer any application for abatement of the Civil Appeal. Even the respondents of the present appeal have not filed any objections under section 9 of the Consolidation of Holdings Act. It is further submitted that even after admission of the aforesaid Second Appeal an interim order was granted by this Court. The respondents have sold their land in dispute to one Sanjay Kumar and Mul Chand vide sale deed dated 13.07.2009. However, the Second Appeal could not be dismissed as being abated only. The civil appeal may be dismissed as having been abated as per the own version of the respondent. It is further submitted that there is no dispute that Smt. Lalli was the owner of the possession of the land in dispute. The only question which is to be decided is that which of the sale deed i.e. sale deed dated 26.06.2004 executed by Lalli in favour of the appellant is valid or the sale deed dated 29.11.1984 executed by Lalli in favour of Lal Singh and the said question can only be decided by the Civil Court. The trial court has only decided and decreed the Suit in favour of the appellant in the facts and circumstances of the case. Provision of Section 5 read with Section 4-A of Consolidation of Holdings Act is not attracted. The application is misconceived and is liable to be dismissed.