ORDER

S.S. Dhavan, J. - This is a Plaintiffs' second appeal from the concurrent decisions of the courts below dismissing their suit for a declaration that a sale deed executed by their uncle in favour of the two Defendants was null and void, and for an injunction to restrain the Defendants from interfering with the possession of the plots in suit. The facts are these. Sri Niwas and Ram Anui are the two main Plaintiffs in this case. They are brothers, and being minors, filed this suit under the guardianship of their grand uncle Bansidhar because their own father was dead. The Plaintiffs alleged that their grand father Sridhar had two sons, Ram Kishan the father of the Plaintiffs and Radhakishan. Ram Kishan predeceased Sridhar and after the latter's death the Plaintiffs formed a joint family with their uncle Radhakishan who is Defendant No. 3. in the suit. The Plaintiffs alleged that at the death of their grand father, they and their uncle Radhakishan were all minors. Ra dhakhhan attained majority in 1951. The Plaintiffs alleged that in 1952 Radhakishan, who had just attained majority, was prevailed upon by the two Defendants Sarwan and Ram Hait to execute a sale deed of their ancestral property. It is this transaction which is assailed as void by the Plaintiffs. They alleged that the sale was without legal necessity and for no consideration. The Plaintiffs pointed out that the property consisted of 14.55 acres of agricultural land in the district of Mathura, but the consideration specified in the sale deed was Rs. 2500/- only. They asked for a declaration that the sale deed was void and an injunction to restrain the Defendants from interfering with their possession of the land. The purchasing Defendants resisted the suit and denied that the sale was without legal necessity or consideration. They also pleaded that the suit was incompetent as the Plaintiff were not in possession of the land and had not asked for recovery of possession.

2. The trial court held that the contesting Defendants had failed to prove that the sale was for legal necessity or that they were bona fide purchaser who had made the purchase after inquiring that the sale money was required for bringing up the minors. But he dismissed the suit on the ground that the Plaintiffs were not in possession of the land and not entitled to any injunction because they had not asked for recovery of possession. It also held thai the relief of declaration was barred uncler Section 42 of the Specific Relief Act.

An application for the amendment of plaint was made before the court but rejected. Accordingly it dismissed the suit. On appeal the learned Civil Judge did not consider the findings of the trial court that the Defendants were not bona fide purchasers and the sale was not for legal necessity, but he concurred in the rejection of the application for amendment of the plaint and held that the suit was rightly dismissed. The Plaintiffs have come to this Court in second appeal.

3. At the outset Mr. R.G. Varma learned Counsel for the Defendants Respondents stated that the land in dispute had recently been under consolidation and the consolidation proceedings had proceeded in favour of the Respondents. But he added that he had no instructions to argue the appeal on merits because the instructions were limited to the making of the aforesaid statement before the court.

In my opinion, the consolidation proceedings did not affect the main dispute in this case namely, whether the sale deed in favour of the Defendants was void as it was without legal necessity and for no consideration. Section 5 of the UP Consolidation of Holdings Act provides in effect that after a village has come under consolidation "all proceedings for correction of the records and all suit for declaration of rights and interests over land, or for possession of land, or for partition, pending before any authority or court whether of first instance, appeal or reference or revision shall stand stayed ". But a suit for