S. D. Khare, J. - (1.) THIS reference to a Full Bench arises out of a Special Ap peal filed against an order of a learned single Judge of this Court, dismissing the writ petition. The Division Bench, which heard the Special Appeal, was of the opinion that the case of Tribeni v. State of U. P., 1968 All LJ 570 affirming the view taken in Lakhpat Singh v. Dal Singh, 1964 All LJ 1049 required reconsidera tion. It has, therefore, referred the following question for the consideration of this Full Bench:- "Whether the judgment and decree of the learned Additional Civil Judge was a nullity when a notification under Sec. 4 of the U. P. Consolidation of Holdings Act in respect of the land in dispute in the appeal before him was made during the pendency of the appeal and that fact had been brought to his notice."
(2.) CONSIDERING all the facts of the pre sent case we would slightly modify the point for reference by adding one more clause (underlined (here in) towards the end so that it will read as follows:- "Whether the judgment and decree of the learned Additional Civil Judge was a nullity when a notification under Sec. 4 of the U. P. Consolidation of Holdings Act in respect of the land in dispute in the ap peal before him was made during the pendency of the appeal and that fact had been brought to his notice 'and he had recorded a decision that the provisions of Sec. 5 did not apply in the facts of the case'." The facts leading to the Special Appeal, out of which this reference has arisen, might be briefly stated as follows.
(3.) ORIGINALLY Dalai Singh, Daljit Singh and Hanuman Singh were the fixed rate tenants of plot No. 10, situate in village Chanchalia, pargana Kiriyat Sikhar, dis trict Mirzapur. They mortgaged that plot in favour of Jokhu Singh, father of the respondents Nos. 4 to 6. Subsequently Dalai Singh executed a sale deed in res pect of his one-third share in favour of the aforesaid Jokhu Singh. The equity of redemption in the remaining two-thirds share of the property vested in Daljit Singh and Hanuman Singh. On llth December. 1907, they also executed a sale deed in respect of their two-thirds share in that plot in favour of Vikrama Singh (appellant). The plaintiff's case was that it had been agreed between Jokhu Singh and Vikrama Singh that Jokhu Singh will remain in possession over his one-third share of the plot No. 10 in dispute towards the north while Vikrama Singh will remain in possession over the two-thirds share of the same plot towards the south.;