G.C. Mathur, J. - (1.) THIS is an application Under Section 5, of the UP Consolidation of Holdings Act filed by the Appellants for abating this appeal and the suit out of which it arises. It is not disputed that a notification Under Section 4 of the UP Consolidation of Holdings Act has been published in respect of the area in which the plots in dispute are situated but it is strenuously contended by Learned Counsel for the Respondents that the suit and this appeal cannot be abated Under Section 5. It is, therefore, necessary to examine the nature of the suit.
(2.) THE suit was filed by Shrimati Ram Jhari Respondent No. 1 for declaration of her rights in respect of pertain lands, for cancellation of a deed dt. 9 -6 -1952, executed by Smt. Bunwasi relinquishing her rights and accelerating the succession, for possession over pertain other lands and for declaration of her rights in respect of the zamindari property of her father Bhagwan Rai. There is no dispute that Bhagwan Rai was the last male -holder of the zamindari properties. After his death, his widow Smt. Punita came into possession over the properties and after her death, Bhagwan Rai's mother Shrimati Bunwasi entered into possession. Shrimati Bunwasi, claiming to be the heir of Bhagwan Rai, executed the deed dated 9 -6 -1952, relinquishing her rights and accelerating the succession, cancellation of which was sought by the Plaintiff. The Plaintiff's case was that she was the daughter of Bhagwan Rai, that she was the heir of Bhagwan Rai after the death of Shrimati Bunita and that Bhagwan Rai's mother Shrimati Bunwasi was not his heir and therefore, had no right to execute the deed, in respect of the properties of Bhagwan Rai. The Defendants denied that Shrimati Ram Jhari was the daughter of Bhagwan Rai and asserted that Bhagwan Rai had, no daughter and that Shrimati Bunwasi was, the heir of Bhagwan Rai after the death of his widow. The trial court held, that Shrimati Ram Jhari was the daughter and the legal heir of Bhagwan Rai and that Shrimati Bunwasi was not his heir. It accordingly decreed the suit for cancellation of the deed, for possession over the plots and for a declaration that the Plaintiff was entitled to the compensation and rehabilitation grant in respect of the zamindari property. This decree was upheld in appeal by the lower appellate court. Thereupon some of the Defendants filed this second appeal. The contention of Learned Counsel for the Respondents is that the suit for cancellation of the deed and for declaration of the fights in respect of the compensation and rehabilitation grant cannot abate Under Section 5 of the UP Consolidation of Holdings Act. It is further contended that, Under Section 5, the suit can be abated as a whole or not at all and that, if any part of the suit cannot be abated, then there can be no abatement at all. It has not been disputed and that is, also the correct position, that the suit, in so far as it is for declaration of the rights in respect of the compensation and rehabilitation grant, is not covered by Section 5 and a suit for this relief alone would not have abated. Learned Counsel for the Respondents has contended that the suit for cancellation of the deed was also not covered by Section 5. Reliance was placed on the decision of a learned Single Judge of this Court reported in Sri Niwas v. Sarwan, 1965 AWR 441 :, 1965 UPRC 200 where it was held that a suit for cancellation of a sale deed on the ground that it was not for legal necessity or consideration was not covered by Section 5. The position is a little different in the present case. The suit of the Plaintiff was based on the assertion that she was the daughter of Bhagwan Rai and it was on that assertion that she founded all her reliefs. It was not a case where the reliefs could be granted only after cancellation of the deed. The deed certainly cast a cloud upon her rights but it did not actually stand in her way. Upon the Plaintiff establishing that she was the daughter and heir of Bhagwan Rai, she became entitled to all the reliefs and the deed automatically fell. Therefore, in the present case, the position seems to be that the main relief was with respect to the declaration of rights and to possession over the land and the cancellation of the deed was only an ancillary relief flowing from the main relief. In my opinion, even the consolidation authorities can grant the Plaintiff the relief of declaration and possession if they hold that she is the daughter and heir of Bhagwan Rai and can say that the deed is inoperative and does not affect the rights of the Plaintiff. In this view, the suit for the relief of declaration and possession and for cancellation of the deed was covered by Section 5 of the UP Consolidation of Holdings Act.
(3.) I am not impressed with the argument of Learned Counsel for the Respondents that a part of the suit cannot abate Under Section 5. Two examples will suffice to show that a suit need not abate as a whole and may abate in part also. Take a case where a suit is for declaration and possession in respect of plots A and B and is decreed in respect of both plots and an appeal is filed only in respect of plot A but not in respect of plot B. The decision in respect of plot B has become final. During the pendency of the appeal, the notification Under Section 4 is issued. It is obvious that the appeal will abate and that the suit will also abate in respect of plot A but the decision in respect of plot B, which has become final, will remain binding between the parties. The suit will thus abate only partially. Then, take the case where a suit is filed for declaration and possession in respect of plot A situate in village X and plot B situate in village Y. A notification Under Section 4 is issued in respect of village X only. Obviously, the suit will abate only in respect of plot A situate in village X but will continue in respect of plot B situate in village Y. In my opinion, therefore, it is permissible to abate the suit and the appeal partially.;