Judgment

DESAI, J.:- Mst. Bibi Rahmani Khatoon and others filed Title Suit No. 3/70 in the Court of the Additional Subordinate Judge. 1, Gaya, for declaration of their title and for recovery of possession of agricultural lands admeasuring 4 acres 29 gunthas comprised in two holdings bearing khata Nos. 458 (nakdi) and 459 (Bhouli), in Touzi No. 7535 situated in village Parsain. The defendants in the suit were the present respondents and three other defendants Nos. 5, 6 and. 7. One Brahmadeo was defendant 7 claiming an interest in khata No. 458 on the basis of a sale deed executed on March 31, 1959, by one Deonandan Singh who was defendant 5 in the trial court. It must be made distinctly clear that Brahmadeo, claimed interest only in khata No. 458 while the present respondents claimed interest in khata No. 459 only. The trial court decreed the suit declaring that the plaintiffs were the owners of both the khatas and were entitled to recover possession of the same.

2. Title Appeal No. 7/74 was preferred in the Court of the Distt, Judge, Gaya, and it was heard by the learned Fourth Addl. District Judge as per his judgment and decree dated July 12, 1974. The learned Addl. District Judge dismissed the appeal and affirmed the decree of the trial Court.

3. Present respondents alone preferred Second Appeal No. 697/74 in the High Court of Judicature at Patna. It must be specifically mentioned that neither defendant 7 Brahmadeo who died pending the appeal before the District Court and whose legal representatives were not impleaded, nor anyone claiming under him either came to be substituted in the appeal pending in the District Court nor any of them preferred appeal to the High Court. This has some relevance to the disposal of the appeal before us and, therefore, it has been categorically set out.

4. Harkoo Gope and three others who claimed interest in khata No. 459 only, preferred second appeal against the dismissal of their appeal by the learned District Judge. When the Second Appeal No. 697/74 was pending in the High Court, an affidavit was filed on behalf of the appellants (respondents in this Court) On November 16, 1978, drawing attention of the Court to a notification under S. 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Act for short) and further intimating to the Court that the village in which the disputed khatas were situated was taken up for consolidation of holdings and, therefore, the appeal pending in the High Court would abate in view of the provision contained in S. 4 of the Act. The High Court accepted the submission and disposed of the appeal by its order dated August 18, 1979, the operative portion of which reads as under :

"The appeal abates and the judgments and decrees of both the courts below are hereby set aside as having abated."

Original plaintiffs having been dissatisfied by the order of the High Court not only abating the second appeal preferred by the respondents but also setting aside the judgments and decrees of the trial court and the first appellate court as having abated, have preferred this appeal by special leave.

5. Shri B. P. Singh, learned counsel who appeared for the appellants contended that even if the second appeal abates by virtue of the provision contained in S. 4, on issue of a notification under S. 3 of the Act, the High Court cannot set aside the judgments and decrees of the trial court and the first appellate court as according to him when an appeal abates the judgment and decree of the court against which the appeal is preferred becomes final. The second contention of the learned counsel is that in any view of the matter as the present respondents had no interest in khata No. 458 and as Brahmadeo on sale to him by Deonandan Singh alone claimed interest in khata No. 458 and since the death of Brahmadeo when the first appeal was pending and his heirs and legal representatives having not been substituted, the appeal qua him in respect of khata No. 458, had aba