1. This appeal, by the heirs and legal representatives of the plaintiff, Darbari Upadhyay is directed against the judgment and decree of the lower appellate court by which the lower appellate court rever sing the judgment and decree of the trial court has dismissed the suit.

2. The principal relief claimed in the suit was a declaration that the several deeds of gift described in Schedules 2 and 3 and Danpatra mentioned in Schedule 4 of the Plaint were illegal, fraudulent and not binding on the plaintiff and that they were never acted upon. Admittedly, all the deeds of gift, which are the subject matter of the suit have been executed on 5.12.1950 by Raktu Upadhyaya. One of them, Ext.-A is in-favour of Mahesh Kahar. The second, Ext. E-1 is in favour of defendant No. 6, Dwarika Pandey and third, Ext. A-1 is in favour of the defendant No. 1 Ram Subhag Pandey. The plaintiff brought this suit for declaration on the footing that he was the nearest heir of the deceased Raktu Upadhaya and that Raktu Upadhaya had lost all powers of understanding and he was insane and of unsound mind at the time he is alleged to have executed these various deeds. The case of the plaintiff was that in spite of the execution of the aforesaid deeds of gift, Raktu Upadhyay continued to be in possession of the lands which are the subject matter of the gift and after his death, the plaintiff was in possession of the lands covered by the various deeds of gift.

3. The defendants, in whose favour the aforesaid deeds of gift have been executed, resisted the suit on the ground that Raktu Upadhayay at the time of the execution of the said deeds was in sound mind and not insane and that he had executed these deeds of gift on account of love and affection as these defendants used to look after Raktu Upadhaya and served him in his old age and he had executed the same in favour of the defendants out of his free will. They further denied that the plaintiff Darbhari Upadhaya was the nearest heir of Raktu Upadhaya. According to them, he was a stranger to the family of Raktu Upadhaya.

4. The trial court accented the plaintiffs case and further held that there was no evidence that the deeds of gift had been executed by Raktu Upadhaya and it, accordingly, decreed the suit on contest with costs against the contesting defendants. On appeal, the learned Subordinate Judge held that the plaintiff was not the nearest agnate of Raktu Upadhaya and he has failed to establish that at the time of the execution of the aforesaid deeds Raktu Upadhyaya was insane and of unsound mind and that it appeared that Raktu Upadhaya executed the aforesaid deeds after thoroughly understanding their contents and further that the deeds of gift were acted upon.

5. Before the appellate court, the Plaintiff filed a petition stating that the lands, which were the subject matter of the various deeds of gift, were comprised in areas in which consolidation operations were going on and prayed that it may be declared that the appeal had abated in terms of the provision of Sec. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter called the Act). The learned Subordinate Judge held that the suit was not within the mischief of Sec. 4(c) of the Act as the suit was filed in the year 1975 and the Act had got no retrospective effect and that the suit was not barred by Sec. 37 of the Act. He. accordingly, rejected the contention of the appellants that the appeal had abated. The learned Subordinate Judge, as already stated above dismissed the suit and allowed the appeal with costs.

5A. At the time of admission of this appeal this court while admitting the appeal by its order dated 23-11-1977 framed the following questions of law for decision in the appeal: "(1) Whether a finding of fact recorded by court of appeal below without consideration of the oral evidence adduced by the parties can be held to be binding on this Court ?

"(2) Whether an appeal filed by the defend