S.S.SANDHAWALIA, J.

1. Whether a defaulting litigant can be allowed to raise the plea of abatement under S.4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 for the first time in second appeal despite a designed or at least a negligent failure to do so in the trial Court and in the first appellate Court, has come to be the threshold question herein.

2. The facts themselves are somewhat significantly revealing. Admittedly the suit was filed by the father of appellant 1 on 27th April, 1971. It sought a declaration of title with the consequential relief of the recovery of possession over the suit land with mense profits. It is the common and, indeed, the appellants own case that a notification under S. 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act) was promulgated on 10th Sept. 1975 during the course of the trial itself. It calls for a pointed notice that it is not even remotely the case of the appellants that the plaintiff remained unaware of this notification. Nevertheless, no plea of any abatement was at all raised and the suit was pressed on merits and it was nearly