K.N. Seth, J. - (1.) THIS appeal by the Defendants is directed against an appellate order remanding the case to the trial court for deciding it on merits after seating aside the order of abatement passed by the trial court.
(2.) THE Plaintiffs Respondents filed a suit for mandatory injunction directing the Defendants to remove the disputed constructions raised by them on the Plaintiffs land. The Plaintiffs claimed to be the Bhumidhars of the disputed grove plat Nos. 504 and 516. It was asserted that the Defendants had no concern with these plots and that wrongfully raised constructions on it. The Defendants denied the title of the Plaintiffs and claimed that the constructions in dispute were old and had been on their own Sehan land. They, however, did not claim any title in respect of plot Nos. 504 and 516. During the pendency of the suit the Defendants made an application that the village in question had come under consolidation proceedings and the suit should be abated Under Section 5(2)(a) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act). The Plaintiffs filed an objection asserting that plot Nos. 504 and 516 were near the Abadi and had been kept out of consolidation scheme which was evident from Form No. 23 issued to them. It was asserted that the consolidation proceedings had no bearing on the matter in dispute. The trial court accepted the plea raised by the Defendants and abated the suit. The appellate court reversed that decision and remanded the suit for trial according to law.
(3.) LEARNED Counsel for the Appellants contended that the suit was liable to be abated Under Section 5(2)(a) of the Ant as the primary question involved in the suit was whether the Plaintiffs were the Bhumidhars of the plots in question and the Plaintiffs could not get any relief unless their rights as Bhumidhars had been established. It was urged that the suit related to a declaration of right or interest of the Plaintiffs in the land lying in an area which had come under consolidation proceedings the suit had to be abated. On the other hand, the contention of the Respondents was that the suit was primarily for the relief of a mandatory injunction calling upon the Defendants to demolish the constructions illegally raised by them. The suit could not be abated as the consolidation authorities were not competent to grant the relief prayed for and such a suit was not covered by the provisions of Section 5(2)(a) of the Act.;