Judgement

S. SAGHIR AHMAD, J. :- Since in these two appeals, common question of law relating to the abatement of suit or proceedings under Section 5(2) of the U.P. Consolidation of Holdings Act (for short Act) is involved, both the appeals which were heard together, are being disposed of by this judgment.

2. In Civil Appeal No. 10214 of 1983, Plots Nos. 139 and 240 situate in Village Rampur, Pargana and Tehsil Hapur, District Meerut, were recorded in the basic year, in the name of the appellants against whom respondents 3 to 6 filed objections claiming co-tenancy but the appellants contested their claim and pleaded that they, namely, the appellants were exclusive tenure-holders of the aforesaid plots in which respondents 3 to 6 had no share.

3. The Consolidation Officer by his order dated 23rd January, 1973, dismissed the objections with the finding that respondents had no share in the plots but the Settlement Officer, Consolidation (for short, SOC), in appeal, allowed the claim of the respondents by judgment and order dated 12th July, 1973, which was also upheld by the Deputy Director of Consolidation (for short, DDC) by his judgment and order dated 17th September, 1973. The basis of judgments passed by the SOC & DDC was the preliminary decree passed on 17-9-80 in the suit for partition filed by the respondents. This suit while pending in the Board of Revenue was abated on account of Notification dt. 2-4-1994, issued under Sec. 4 of the Act. Still the SOC, DDC and the High Court followed the preliminary decree and, therefore, the question involved in this appeal is whether the preliminary decree would also abate if the suit is abated under Section 5(2) on account of Notification for consolidation operation issued under Sec. 4 of the Act.

4. Similar question is involved in Civil Appeal No. 2635 of 1980 in which it was found by the Deputy Director that Raj Narain as also other sons of Mata Prasad, had filed a suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act (for short, ZA & LR Act) for partition of their 2/3rd share in the holding which was decreed and the appeals which were filed against the preliminary decree by Chanderbali and others were dismissed. The Writ Petition filed in the Allahabad High Court was also dismissed. Proceedings for preparation of final decree were then initiated in the Court of the Judicial Officer who passed the final decree for partition but Chanderbali and others challenged the final decree in appeal during the pendency of which the village was notified for consolidation operations and consequently the Additional Commissioner abated the appeal as also the suit by his order dated 1st August,1967, which is quoted below :-

"The village in suit is under consolidation of holdings operation. The appeal along with the suit, therefore, abates under the provisions of Section 5(b) of the U. P. Act No. 21 of 1967."

5. It is contended by the learned counsel for the appellants that since the village had already been notified under Section 4 of the Act, the suit which, on the date of the aforesaid notification, was pending before the Board of Revenue, abated in view of the provisions contained in Section 5(2) of the Act and, therefore, the consolidation authorities viz., the Settlement Officer and the Deputy Director were not justified in relying upon the judgment of the Revenue Courts as the effect of abatement was that the judgment and the decree, passed by the Revenue Courts, became non-existent. The consolidation authorities, it is contended, ought to have investigated the claim of the respondents irrespective of the judgments passed by the Revenue Courts and should have recorded their own independent findings on the question, specially the question of title, involved in the case.

6. Learned counsel for the respondents on the contrary contended that the suit for partition or, for that matter, any other suit, for example, a suit for redemption or foreclosure, based on a mortgage in which two