JUDGMENT M. P. Mehrotra, J. - This revision is directed against an order passed by the lower appellate court rejecting an application under Sec. 5 of the Consolidation of Holdings Act. 2. The brief facts are these : The plaintiffs filed a suit for issue of a mandatory injunction directing the defendants to demolish and remove the constructions from Plot Nos. 418, 620 and 623; for issue of permanent injunction restraining the defendants from interfering with the plaintiffs possession of the trees detailed in List B of the plaint and not to cut the same; a decree for possession over the land covered by the disputed construction sought to be demolished was also claimed. Other connected reliefs were also sought in the suit. The plaintiffs claim was that a tank was dug in the land in question by their predecessors and the trees were planted by the said predecessors on the Bhita of the tank. The said predecessors of the plaintiffs were claimed to be the tenants of the land in dispute. It was alleged that the defendant were seeking to interfere with the plaintiffs possession over the plots in dispute and they had raised certain construction also on certain portion of the land in dispute. They otherwise also interfered with the possession of the plaintiffs over the land in question. The defendant No. 2 only contested the suit and claimed that the land in question vested in Gaon Sabha on the coming into effect of U. P. Act No. 1 of 1951. Necessary issues were framed by the trial court and while deciding issue Nos. 1 and 2 the said court held that the plaintiffs were the owners of the Bhita and plot Nos. 418, 620 and 623 and Anganai of plot No. 621. In other words, the trial court accepted the plaintiffs version that the plots in question were the tenancy plots of the plaintiffs predecessors and the land in question did not cease to be so merely because a tank was dug up by the predecessors of the plaintiffs. On the basis of the said findings the trial court substantially decreed the suit. Thereafter the defendants took out an appeal and the same was pending in the lower appellate court when the Notification under Sec. 4 of the Consolidation of Holdings Act was issued in respect of the village where the land happened to be situate. On the basis of the said findings the trial court substantially decreed the suit. Thereafter the defendants took out an appeal and the same was pending in the lower appellate court when the Notification under Sec. 4 of the Consolidation of Holdings Act was issued in respect of the village where the land happened to be situate. Thereafter the defendants appellants in the lower appellate court moved an application under Sec. 5 and contended that in view of the promulgation of the Notification under Sec. 4 the appeal alongwith the suit stood abated. The lower appellate court rejected the said application on the ground that as there was a tank on the land and the definition land in the Consolidation of Holdings Act did not take in the case of tank, therefore, Sec. 5 was not attracted. The defendants-appellants felt aggrieved with the said order rejecting their application under Sec. 5 and they came up in revision to this Court and in support of the revision I have heard Shri R. N. Singh, learned counsel for the applicants. Shri Singh has placed reliance on the following cases in support of his contention : Sahdeo Pandey v. State, 1966 A.W.R. 22, A. Ahmad v. State of U.P., 1965 A.L.J. 502, Alauddin v. Hamid Khan, 1971 A.L.J. 367, Sarda Pd. v. Ram Bharose, 1944 R.D. 69, and certain unreported decisions of this Court as per details below : (i) Second Appeal No. 3052 of 1964 decided on 21st March, 1972. (ii) Writ Petition No. 4808 of 1963 connected with writ Petition No. 5736 of 1963 decided on September 26, 1968. (iii) Writ Petition No. 6312 of 1970 decided on 8th February 1974. Now, Mr. Singhs main contention is that in the instant case it did not lie in the mouth of the plaintiff to contend that there was no land involved in litigation. The plaintiffs were claiming that the tank was dug out by their predecessors in their tenancy holdings and they further contended that they had become the bhumidhars of the land in question. Not only that was the contention in the suit but actually, as a matter of fact, they did approach the consolidation authorities and sought the revenue entries to be mutated in their favour in respect of the land in question. 3. Not only that was the contention in the suit but actually, as a matter of fact, they did approach the consolidation authorities and sought the revenue entries to be mutated in their favour in respect of the land in question. 3. Sri Girish Chandra, learned counsel for the opposite party, has supported the order of the court below and contended that the plots in suit are covered by tank, bhita, anganai and nargola of the plaintiff-opposite party and the latter does not claim any tenancy rights therein. He claims to be the tank and bhitas holder and, therefore, submits that the U. P. Consolidation of Holdings Act does not apply. Counsel further contended that the proceedings before the consolidation authorities were dropped on an understanding that the controversies would be decided by the civil court and the applicant in the revision was, therefore, stopped from arguing to the contrary in this court. The definition of land as given in the U. P. Consolidation of Holdings Act was said to be such as did not cover the plots in dispute. Lastly, it was contended that the revision was not maintainable because there was no jurisdictional error in the findings of the Court below. The learned counsel distinguished the cases relied upon by the learned counsel for the applicant on the ground that in the said decisions, the consolidation proceedings were pending and had not been disposed of as in the instant case. He placed reliance on the following authorities : Babu Ram v. State, A.I.R. 1955 N.U.C. Alld. 2694, Bhagwati Tiwari v. Ram Arya Tiwari, 1956 R.D. 251, Pt. Ram Autar v. Lala Lachhmi Nath, 1957 A.L.J. (R) 57, Hari Narain v. Ram Raj, 1969 R.D. 33, Pandurang Dhondi Chougule v. Marauti Hari Jadhav, A.I.R. 1966 S.C. 1336, Manindra Land and Building Corporation Limited v. Bhutnath Banerji, A.I.R. 1964 S.C. 1336, Hari Shankar v. Rao Girdhari Lal Chaudhary, A.I.R. 1963 S.C. 698, A.I.R. 1956 Allahabad 643. 4. So far as the last contention of Sri Girish Chandra is concerned, that may be taken up first. It may be stated that the citation of A. I. R. 1956 Allahabad 463 is wrong as there is no case starting at that page. 4. So far as the last contention of Sri Girish Chandra is concerned, that may be taken up first. It may be stated that the citation of A. I. R. 1956 Allahabad 463 is wrong as there is no case starting at that page. So far as the other three Supreme Court cases are concerned, namely, A. I. R. 1966 S. C. 153, A. I. R. 1964 S. C. 1336 and A. I. R. 1963 S. C. 698 (supra), they lay down the limits of the High Courts jurisdiction under Sec. 115, C. P. C. Under the said provision, this Court cannot interfere merely on the ground that an error of law has been committed much less on the ground that there are errors in the appreciation of evidence or in the findings of facts unconnected with the question of jurisdiction. However, in my view, in the instant case, the revision is maintainable because Sec. 5 (2) (a) of the U. P. Consolidation of Holdings Act is a mandatory provision and clearly lays down:- "Every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, 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." 5. In my opinion, by taking a wrong view in respect of the applicability of the said provision to a proceeding or suit pending before it, the court concerned cannot appropriate jurisdiction to continue such proceeding or suit. If the suit or proceeding is liable to be abated, then a wrong decision of the court concerned will be without jurisdiction and clearly illegal. Sec. 115, C. P. C. in my view, therefore, will be attracted, to such a situation. I, therefore, reject the contention of Sri Girish Chandra that the instant revision is not maintainable. 6. So far as the question of estoppel is concerned, in my view, the case reported in 1969 R. D. page 33 is distinguishable. Sec. 115, C. P. C. in my view, therefore, will be attracted, to such a situation. I, therefore, reject the contention of Sri Girish Chandra that the instant revision is not maintainable. 6. So far as the question of estoppel is concerned, in my view, the case reported in 1969 R. D. page 33 is distinguishable. In the said case, it was laid down :- "It is now well settled that a party litigant cannot be permitted to assume inconsistent positions in court, to play fast and looses, to blow hot and cold, to approbate to the detriment of his opponent. This doctrine applies not only to successive stages of the same suit but also to another suit than the one in which the position was taken up, provided that the second suit grows out of the judgment in the first." 7. Now, in the instant case, the civil suit was pending when the consolidation proceedings started and it cannot be said that the civil suit grew out of the order passed in the consolidation proceedings. In the impugned order under revision, it is observed :- "Here I may point out that during pendency of this appeal the village was notified under Consolidation of Holdings Act and, therefore, notwithstanding pendency of this case, plaintiff started action and moved application for mutation of these properties in his name by his application dated 30-7-69. The defendant appellant filed objection. Copy of objection and application are before me. The dispute before the Consolidation officer by his order dated 6-4-70 (copy filed) dismissed plaintiffs application involving the question of title against him. I am told that the plaintiff has filed appeal against the said order of the Consolidation Officer and that appeal is pending before S. O. C. The plaint allegation and certain admissions made by plaintiff show that the disputed land is now his bhumidhari. In his statement under Order 10 C. P. C. dated 10-7-65 the plaintiff stated that his ancestors were the tenants of the land." 8. Therefore, it is clear that when the impugned order was passed, there was no withdrawal of the proceedings pending before the Consolidation authorities. If the impugned order was illegal on the date when it was passed, then I do not think that any subsequent action of the parties can impart validity to it. Therefore, it is clear that when the impugned order was passed, there was no withdrawal of the proceedings pending before the Consolidation authorities. If the impugned order was illegal on the date when it was passed, then I do not think that any subsequent action of the parties can impart validity to it. Further, no satisfactory material has been placed to show what the stand of the applicant was before the consolidation authorities when the opposite party sought to withdraw the proceedings pending before the said authorities. In the lower appellate courts judgment, as I stated above, there is a clear recital that the appeal was pending before the Settlement Officer (Consolidation). Therefore there was no withdrawal of the said appeal when the impugned order was passed. In what manner, subsequently, the appeal was allegedly withdrawn and what was the stand taken by the applicant when the opposite party sought to withdraw the proceedings from the court of the Settlement Officer (Consolidation), has not been satisfactorily proved. Therefore, in my view, there is no rule of estoppel operating against the applicant in the revision. 9. The court below rejected the application under Sec. 5 on the ground that the plots in question were not land as the said expression is defined in Sec. 3(5) of the U. P. Consolidation of Holdings Act. Land is defined in the said provision in the following manner:- " Land means land hold or occupied for purposes connected with agriculture, horticulture and animal husbandry (including pisciculture and poultry farming) and includes- (i) the site being part of a holding, of a house or other similar structure, and (ii) trees, wells and other improvements existing on the plots forming the holdings." The court below observed :- "This tank and Bhita was never held and occupied by any one for purposes connected with agriculture, horticulture and animal husbandry. This is nobodys case that it was ever occupied for pisciculture or poultry farming. Therefore, this disputed Bhita and tank, in my opinion, do not come within the definition of land as given in the Act." 10. In my view, the court below was wrong in coming to the said conclusion. There was nothing to indicate that the plots in question had forsaken the character of land. Therefore, this disputed Bhita and tank, in my opinion, do not come within the definition of land as given in the Act." 10. In my view, the court below was wrong in coming to the said conclusion. There was nothing to indicate that the plots in question had forsaken the character of land. In the plaint itself, in paragraph 3, it was clearly stated that the ancestors of the plaintiff were the tenants in the village and as tenants, they had dug out the tank and had brought into existence the bhita. The fact that the plaintiffs were claiming before the consolidation authorities to be bhumidhars or sirdars of the plots in question can only lead to the inference that the plots in question were treated to be land as defined in the said Act. Under the U. P. Act No. 1 of 1951, the definition of land is given in Sec. 3(14). It is like this :- "(14). "land", except in Secs. 143 and 144 means land held or occupied for purposes connected with agriculture and poultry farm." 11. I fail to see how anyone can claim to be a bhumidhar or sirdar of certain plots and yet contend that the said plots are not land either under U. P. Act 1 of 1951 or under the U. P. Consolidation of Holdings Act. The court below itself recognised that if a tank is used for agricultural purposes, then it will come within the definition of land. It observed :,- "If it is used for agriculture etc. such tank will come within the definition of land." 12. Therefore, the lower appellate court was not in a position to say that the plots in question were not land within the meaning of the said expression in the Consolidation of Holdings Act. I think the cases relied on by the learned counsel for the applicant go to support his contention. In 1966 AWR page 22 (supra) it was laid down :- "Sir or Khudkasht plots do not cease to be such by excavating a tank in them. Similarly tenants who dig tanks or ponds in their tenancy holding do not cease to be such tenants of the holding or part thereof which are covered by the tank or pond." 13. In 1966 AWR page 22 (supra) it was laid down :- "Sir or Khudkasht plots do not cease to be such by excavating a tank in them. Similarly tenants who dig tanks or ponds in their tenancy holding do not cease to be such tenants of the holding or part thereof which are covered by the tank or pond." 13. In 1965 A. L. J. 502 (supra), a Division Bench of this Court laid down :- "The petitioners own case is that they were sirdars and they could not be sirdars unless the plot was "land". Further the petitioners claim to have acquired bhumidhari rights and they could not have acquired bhumidhari rights except over land. Therefore, it cannot be disputed that the plot is land within the meaning of Zamindari Abolition and Land Reforms Act. It is immaterial that on a portion of it stand a mosque and houses." 14. In 1971 A. L. J. page 367 (supra), it has been laid down as under:- "In case the intention of the legislature was that as soon as land which had been previously held for purposes connected with agriculture etc. ceased to be used for that purpose, the provisions of the U. P. Z. A. and L. R. Act or Chapter VIII would not apply, it would not have been necessary for it to enact Sec. 143. In fact in case such an interpretation is put, the provisions of Sec. 143 of the Act become redundant. It is plain that till such time that a Bhumidhar does not get the requisite declaration he continues to be governed by the provisions of U. P. Z. A. and L. R. Act irrespective of the fact as to whether he uses his land for purposes connected with agriculture, horticulture etc. or not." 15. In Raj Narain v. Deputy Director of Consolidation, Civil Misc. Writ No. 6312 of 1970, decided on 8th February, 1974, there was a tank on the land in dispute and still this Court held that the petitioner validly became a hereditary tenant and subsequently a sirdar under Sec. 19 of the U. P. Act No. 1 of 1951. 16. In Civil Misc. Writ No. 4808 of 1963 connected with Civil Misc. Writ Nos. 16. In Civil Misc. Writ No. 4808 of 1963 connected with Civil Misc. Writ Nos. 5736 to 5739 of 1963, decided on September 26, 1968, it has been observed :- "Sec. 21 of the Act confers the status of an asami on a non-occupancy tenant of land covered by water and used for the purpose of growing Singhara or other produce. A person growing Singhara or other produce in a tank was under the provisions of the U. P. Tenancy Act a non-occupancy tenant. Consequently, if the tank in question was used for the purpose of growing Singhara or other produce, the tenure holder shall be asamis and not sirdars; but if the lank was not used for such purposes, but was meant for irrigation only, it shall be a land connected with agriculture and hence the tenure holders can have the status of a sirdar." 17. It is not necessary to go to the extent as the learned Single Judge went in allowing an application under Sec. 5 of the Consolidation of Holdings Act in Sarju Pandey v. Gram Samaj, Second Appeal No. 3052 of 1964, decided on 21-3-1972. The learned Single Judge observed :- "In my opinion, in the consolidation proceedings, an objection can and has to be taken that the entries in favour of the defendants as sirdars are incorrect and should be expunged. This can be done also by the Gaon Samaj in case it considers the plots to be Pond and not land." 18. In any view, in the instant case also, there was dispute about entries in the revenue record and the opposite party himself filed objections before the consolidation authorities seeking the correction of the revenue records. I do not think that the cases relied on by the learned counsel for the opposite party are really applicable to the instant case. The observation in A. I. R. 1955 N. U. C. has been treated as obiter. Moreover, the facts in the instant case are different. I do not think that the cases relied on by the learned counsel for the opposite party are really applicable to the instant case. The observation in A. I. R. 1955 N. U. C. has been treated as obiter. Moreover, the facts in the instant case are different. In 1957 A. L. J. (R) page 57 (supra), it was observed:- "Where the entire land is covered by water the use of a small portion of it for growing crops like bajra and paddy cannot be considered use connected with agriculture or use for any such other purpose as would render it land within the definition of that word in Sec. 3(14), U. P. Z. A. and L. R. Act. Therefore, no adhiwasi rights can accrue in such land." 19. Now, these observations were made by the learned Single Member of the Board of Revenue and, in my opinion, they do not lay down the correct law. The learned Single Member held that in the disputed land, asami rights under Sec. 21 of the U. P. Act 1 of 1951 and not adhivasi rights under Sec. 20 of the said Act had accrued to the defendant appellant before him. In my view, the learned Member of the Board contradicted his own observations by coming to the said finding. In Sec. 21 also, the word used is land. Therefore, when asami rights accrued in a piece of land, it is difficult to see how it could be held at the same time that there was no land within the meaning of the said expression under the U. P. Act 1 of 1951. 20. The case reported in 1956 R. D. 251 (supra) is again a decision of a Bench of the Board of Revenue. The question was whether waste land is land within the meaning of the said expression in the U. P. Act 1 of 1951 and it was held that the same is not land as the said term is defined in the said Act. We are not concerned with any waste land and it is not necessary to examine the correctness of the said view. 21. I accordingly allow the revision and set aside the impugned order of the lower appellate court rejecting the application under Sec. 5 of the U. P. Consolidation of Holdings Act. We are not concerned with any waste land and it is not necessary to examine the correctness of the said view. 21. I accordingly allow the revision and set aside the impugned order of the lower appellate court rejecting the application under Sec. 5 of the U. P. Consolidation of Holdings Act. I allow the said application under Sec. 5 and direct that the appeal in the lower appellate court and the suit from which the said appeal arose shall stand abated. The parties shall bear their own costs of the revision.