K.B. Asthana, J. - (1.) AT the hearing of the second appeal, the Learned Counsel for the Plaintiff -Respondent submitted that in view of a notification issued Under Section 4 of the UP Consolidation of Holdings Act, bringing the land in dispute in this appeal under consolidation operations this appeal be declared abated under the provisions of Clause (a) of Sub -section (2) of Section 5 of that Act as amended by UP Act No. XXI of 1966. The Learned Counsel for the Defendant -Appellant conceded that the provisions of Clause (a) of Sub -section (2) of Section 5 of that Act will apply and it would be for the consolidation authorities now to determine the rights of the parties with regard to the land in dispute but contended that the whole proceedings that is the suit itself should be declared to have abated. I had adjourned the hearing to enable the Learned Counsel for the Defendant -Appellant to produce before me a copy of the judgment of the Supreme Court relating to the scope and interpretation of Clause (a) of Sub -section (2) of Section 5 of that Act. An uncertified copy of the judgment has been produced before me today by the Learned Counsel for the Defendant -Appellant and the Learned Counsel for the Plaintiff -Respondent has no objection if the court relied upon this judgment.
(2.) IN Civil Appeal No. 691 of 1966 Ram Adhar Singh v. Ramroop Singh and Ors. decided by the Supreme Court on 26 -10 -1967 (since reported in, 1968 AWR 14) the question involved was whether the appeal before the Supreme Court arising out of a suit for possession of an agricultural land was to be declared abated under the provisions of Clause (a) of Sub -section (2) of Section 5 of the Act. Their Lordships of the Supreme Court in the course of their judgment made the following observations in regard to the scope of Clause (a): ...what the state legislature has done is only to make provision in respect of matters within its jurisdiction and to declare that a suit instituted in a court within its area has abated.... The Learned Counsel for the Plaintiff -Respondent contended that as far as the High Court is concerned it can only declare the appeal abated and not the suit as only an appeal is pending before it, which is the proceeding before it. The operative portion of the judgment delivered by the Supreme Court in the case of Ram Adhar Singh v. Ramroop Singh and Ors. (supra) was pressed into service by the Learned Counsel and he submitted that the Supreme Court did not declare the suit abated but declared only the appeal before it to have abated. In my judgment the effect of the judgment of the Supreme Court in the case of Ram Adhar Singh v. Ramroop Singh and Ors. (supra) would be that the whole proceedings, that is, the suit out of which the appeal arose which went up to the Supreme Court stood abated. In the operative portion of the judgment the Supreme Court no doubt only mentioned that the appeal had abated and did not clarify in that portion of the judgment that the suit also stood abated, but that to my mind, does not make any difference as in the body of the judgment the learned Judges of the Supreme Court have clearly explained as to what the State legislature intended Under Clause (a) of Sub -section (2) of Section 5 of the Act. Even a cursory perusal of Clause (a) of Sub -section (2) of Section 5 of the Act would show that legislature clearly directed that the suit or the proceeding shall abate. The words used are: ...every suit and proceeding in respect of declaration of rights or interest in any land lying in the area...pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated. It would be seen that the legislature has not said that it is an appeal which would abate but what it had said is that the suit or the proceeding whether pending in the court of first instance or of appeal shall stand abated on an order passed by the court or authority before whom such suit or proceeding is pending. This direction by the legislature, to my :mind, is consistent with the established doctrine that an appeal is continuation of a suit and before the appellate court really what is pending is the suit which was originally instituted and which was decided by the subordinate court. When a right of appeal is conferred from a decision, order or a decree of a subordinate court then what is meant is that the whole controversy in the suit again is reopened before the appellate court unless there is some limitations on the power of the appellate court provided by the law. The appellate court has to decide the suit on a review of the evidence that is to say, it has to determine the rights of the parties in accordance with the evidence and the law applicable.
(3.) FURTHER if the narrow construction as put forward by the Learned Counsel for the Plaintiff -Respondent is given effect to as to the scope and interpretation of Clause (a) of Sub -section (2) of Section 5 of the Act, then there would arise an anomaly in the working of the Act which was never intended by the legislature. It is clear that the whole object behind enacting Clause (a) is that once the land in dispute is put under consolidation operation all the disputes relating to it shall be decided by the consolidation authorities. In other words, it would be the consolidation authority who will enquire into the dispute in accordance with the provisions of the Act and determine the rights of the parties. This object would be frustrated if I declare the second appeal abated and do not declare the suit abated as it would be then open to one of the parties to put forward the decree of the lower appellate court or of the trial court which was passed prior to the issue of the notification Under Section 4 of the Act and raise a plea before the consolidation authorities that the question of title was barred by principles of res judicata. It would mean that the jurisdiction of the consolidation authorities would be taken away to decide the dispute and the very purpose of introducing Clause (b) in Sub -section (2) of Section 5 of the Act would be defeated.;