Deoki Nandan, J. - (1.) THIS second appeal is directed against the so called judgment and decree dated 19 -1 -1976 passed by Sri P.K. Sarkar and the judgment and decree dated 15 -2 -1975 passed by Sri Maharaj Deen, Additional Civil Judges, Allahabad, in Civil Appeal No. 533 of 1964 arising out of suit No. 418 of 1958.
(2.) SRI Ansuman Singh, learned Counsel for the Respondents raised a preliminary objection against the maintainability of the appeal. He urged that the order dated 15 -2 -1975 was an order abating Civil Appeal No. 533 of 1964 pending in the court of Additional Civil Judge, Allahabad, under Section 5 of the U.P. Consolidation of Holdings Act, and that this order does not amount to a decree. The order dated 19 -1 -1976 was passed by Sri P.K. Sarkar dismissing an application for review of that order. The order dismissing the review application cannot by any stretch be treated to be a decree. The learned Counsel for the Appellants could not say anything plausible in reply to the objection raised by the learned Counsel for the Defendant -Respondents, but urged that he may be permitted to convert the second appeal into a revision. In order to see whether such permission should be granted or not, I asked the learned Counsel for the Appellants to explain the circumstances in which a revision was not filed from the order dated 15 -2 -1975. The order dated 19 -1 -1976 did not dismiss the review application on the ground of want of jurisdiction or any other like ground, but dismissed it on the merits. The time taken in prosecuting it could not be excluded in computing the limitation for preferring a revision against the order dated 15 -2 -1975. The learned Counsel could not give any satisfactory reason for not filing a revision. That apart, it appears from a perusal of the order dated 19 -1 -1976 on the review application, that it was dismissed on the ground that even where land in the nature of a grove is excluded from consolidation in the sense that it is not subjected to rearrangement of land included in the holdings of tenure holders in the process of consolidating them, the consolidation authorities nevertheless have the jurisdiction to determine any disputes as to the title to such land. The point now sought to be raised by the learned Counsel for the Appellant is that Puddan, Sukhdeo, Darshan and Budul had died during the pendency of the first appeal from order in this Court at an earlier stage of the appeal in the lower appellate court, and although their heirs and legal representatives were substituted in the first appeal from order, they were not substituted in the appeal before the lower appellate court and that being so, the appeal abated, and the lower appellate court had no jurisdiction to pass any orders on the application under Section 5 of the U.P. Consolidation of Holdings Act in the appeal before the lower appellate court.
(3.) IN view of the fact the legal representatives of Puddan, Sukhdeo, Darshan, and Budul, had already been brought on the record by being substituted in the first appeal from order, it cannot be said that there was any abatement of the appeal in the lower appellate court, by reason of their death.;