JUDGMENT

D.S. Mathur, J. - This is an appeal by Dahdeo Singh defendant, against the order of the Civil Judge of Ghazipur setting aside the order of abatement under Section 5 (2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) passed by the Munsif Saidpur at Ghazipur and at the same time remanding the suit for a fresh hearing after recording the evidence of the parties. The learned Civil Judge also held that the appeal preferred against the order of abatement was maintainable.

2. Even if no appeal lay against the order of abatement passed by the Munsif this Court can in exercise of its revisional jurisdiction consider suo motu the legality of the order of abatement passed by the Munsif and if it be found that the order is against the law and the learned Civil Judge had passed a correct order on merits, this Court can by dismissing the F.A.F.O. maintain the order of the Civil Judge.

3. The material facts of the case are that the present suit for the demolition of the unauthorised constructions on agricultural land and in the alternatively for possession was instituted in 1963 at a time consolidation proceedings were pending in the village. The notification under Section 52 of the Act was published in 1964. Sec. 5 was, however, amended in 1966 by deleting clause (b) and adding sub-sec. (2) to Sec. 5. Prior to the amendment of Section 5, the hearing of suits covered by this Sec. had to be stayed and on the publication of the notification under Section 52 such suits had to be decided in accordance with the decision of the consolidation authorities. In other words, the suits had to be finally decided by the court before whom such suits were pending, though on questions decided by the consolidation authorities their finding had to be accepted and made the basis of judgment. However, after the amendment of Section 5 in 1966 such suits stood abated. It was made clear in clause (b) of Section 5 (2) that the abatement of the suit shall be without prejudice to the rights of the persons affected to agitate the rights or interest before the consolidation authorities under and in accordance with the provisions of the Act and the rules made thereunder.

4. By virtue of Section 5 of the Act, as it then stood, the hearing of the suit had been stayed, but after the amendment of Section 5 the question arose whether the hearing of the suit could proceed or it had by virtue of amended Section 5 (2) stood abated. The learned Munsif was of the opinion that the suit stood abated.

5. The plaintiffs preferred an appeal before the District Judge, which came up for hearing before the Civil Judge of Ghazipur. He has held that amended Section 5 did not apply to the instant case and there was no abatement of the suit.

6. It is true that while amending Section 5, sub-sec. (2) has not been properly worded to make it clear that the amended provision applies only upto the stage of the publication of the notification under Sec. 52. However, if the sub-section is read as a whole no other inference can be drawn except that the sub-section is applicable only for the period sub-sec. (1) of Section 5 is in operation, i.e. the abatement clause applies only up to the publication of the notification under Sec. 52.

7. Sub-Sec. (1) of Section 5 makes it clear that the consequences detailed therein apply from the stage of the publication of the notification under Sec. 1(2) to the stage of the publication of the notification under Sec. 52. Consequently, after the publication of the notification under Section 52 the record of right are to be prepared and maintained by the revenue authorities and not by the consolidation authorities. However, sub-sec (2) of Section 5 omitted a reference to the publication of the notification under Section 52, it appears because once a suit had abated it abated forever.

8. After the abatement of the suit under clause (a) of sub-sec. (2) of Section 5 the parties can agitate the disputes before the consolidation autho