JUDGMENT Deoki Nandan, J. - The short question which arises in this second appeal is whether the suit giving rise to it was liable to be abated under S. 5, U. P. Consolidation of Holdings Act. The suit was instituted on 24th Sept., 1963, for an injunction restraining the defendants' from interfering with the plaintiffs' use and possession of the land in suit which was shown in the map at the foot of the plaint. It is not necessary' to set out the pleadings of the parties as a reference to the issues framed at the trial will be sufficient. They were as follows : "(1) Whether the plaintiff is the owner of the land shown by letters Cha, Cha 1, Cha 2, Gha, Ka, Kha in the Commissioner's map dated 22-10-63? (2) Whether the plaintiffs been in possession of the land in suit. If its effect? (3) Whether the land in suit was left for abadi purposes as alleged in para 5 of the W. S.? (4) Is the suit barred by S. 11, C.P.C.? (5) Is the suit bad for misjoinder of Gaon Sabha and U. P. State? (6) Is the suit undervalued and court-fee paid thereon insufficient? (7) To what relief, if any, are the plaintiffs entitled? 2. By judgment dated 26th April, 1965, the trial Court held on issue 3 that it is admitted case of the parties that a portion of plot No. 652 was left for abadi purposes and further that the area reserved for abadi out of plot No. 652 is the same which is now in suit. Having decided issue 3 in the affirmative, the trial Court held on issues 1 and 2 that the plaintiffs have possessory title and that they are the owners of the land in suit. Issue 4 was decided against the defendants. Issues 5 and 6 had earlier been decided in the negative as preliminary issues, and holding, on issue 7, that the plaintiffs were entitled to the relief of injunction claimed, the trial Court decreed the suit by the said judgment. Issue 4 was decided against the defendants. Issues 5 and 6 had earlier been decided in the negative as preliminary issues, and holding, on issue 7, that the plaintiffs were entitled to the relief of injunction claimed, the trial Court decreed the suit by the said judgment. On appeal the Court of the Civil Judge, Ghazipur, held, by its judgment dated 14th Feb., 1966, that the suit was liable to be stayed under S. 5, U. P. Consolidation of Holdings Act, until the issue of a notification under S. 52 of that Act, and in that view of the matter, it allowed the appeal, set aside the judgment and decree of the trial Court dated 26th April, 1965, and remanded the suit to the trial Court to be registered at its original number and disposed of in the light of the observations contained in that judgment; those observations being that the suit may be kept stayed by the trial Court until the issue of the notification under S. 52, U. P. Consolidation of Holdings Act, and thereafter it may be decided in consonance with the determination of the matter by the consolidation authorities. 3. It appears that a first appeal from order 182 of 1966 was filed from the said judgment of the lower appellate Court dated 14th Feb., 1966. According to an affidavit filed before me today, the order passed by this Court dismissing the first appeal from order runs as follows ; "No case for interference against the order of remand is made out. At this stage it is not necessary to record a clear finding but it shall have to be seen whether the present suit with regard to plot 652, which appears to be an agricultural land, was maintainable before the civil Court. If the consolidation authorities reserve the land in dispute for abadi purposes it shall become an abadi land and the civil Court can thereafter decide the suit in accordance with law. But if the consolidation authorities record the disputed land to be an agricultural land, the civil Court shall have to record a finding whether the suit with regard to the agricultural land was cognizable by the Court. It is said that the land has since been declared an abadi land. If it is so, it can be brought to the notice of the trial Court. It is said that the land has since been declared an abadi land. If it is so, it can be brought to the notice of the trial Court. The F.A. F.O. is hereby dismissed summarily." 4. I have referred to the judgment of this Court from the affidavit because certified copy of that order could not be traced out on the record of the Court below, and when sent for the record of the first appeal from order from the record-room of this Court, it was not made available to me at the hearing. The suit was stayed by the trial Court's order dated 23rd March, 1966. The trial Court's order-sheet shows that in spite of notice having been served for appearance of the parties or their counsel on 17th May, 1969, no one appeared before the trial Court and it passed an order abating the suit under S. 5, U. P. Consolidation of Holdings Act. That order was made the subject matter of Civil Appeal No. 44 of 1970 and the judgment thereon is the judgment impugned in the present appeal. 5. According to the lower appellate Court the appellants cannot go behind the remand order as they did not prefer any appeal against the same and it has become final between the parties. The appellants before the lower appellate Court are the appellants before me and they appear to have been the appellants in the first appeal from order 182 of 1966. It appears that they suppressed the fact of dismissal of their first appeal from order. Be that as it may, the fact remains that the first appeal from order having been dismissed, the lower appellate Court's judgment dated 14th Feb., 1966 setting aside the judgment and decree of the trial Court dated 26th April, 1965 and remanding the suit for disposal in accordance with the observations contained therein has become final. The thing which needs to be noticed is that there has been a change of law between the date of the judgment of the trial Court dated 26th April, 1965 and the date on which the suit was ordered to be abated under S. 5, U. P. Consolidation of Holdings Act, inasmuch as instead of staying the suit it has to be abated under S. 5, U. P. Consolidation of Holdings Act, in case the conditions of that section are satisfied. The trial Court appears to have ordered abatement of the suit in that case without examining the question whether the suit could be abated under S. 5, U. P. Consolidation of Holdings Act, and so far as the lower appellate Court's order dated 14th Feb., 1966 is concerned, it did not record any finding that the land was agricultural and the suit was liable to be abated. All that it had said was that the parties were claiming rights and the matter was up for determination before the consolidation authorities and, therefore, the suit should be stayed pending determination of the matter by the consolidation authorities. The order of the lower appellate Court staying the suit cannot be said to be a final order determining the question whether the suit was liable to be abated under S. 5, U. P. Consolidation of Holdings Act, as it now stands after the amendment. It would further appear from the order of this Court dated 13th July, 1966, dismissing the first appeal from order that if the land had been declared abadi land by the consolidation authorities that fact ought to have been brought to the notice of the trial Court. Unfortunately the appellants did not care to do so by appearing before the trial Court at the appropriate time and preventing the passing of an order of abatement by showing that the land was abadi land and was not covered by the definition of land under the IJ. P. Consolidation of Holdings Act. 6. The lower appellate Court has in the judgment under appeal made certain observations which indicate that in its opinion the land in suit was included within the definition of land under S. 3 (5), U. P. Consolidation of Holdings Act. In that the lower appellate Court has omitted to notice the fact that according to the admitted case of the parties the land was not held or occupied for purposes connected with agriculture, horticulture or pisciculture and animal husbandry etc., and was not claimed by either of the parties to be the site of any house or trees or well or other improvements forming part of any holding of which they may be tenure-holders. The land was in every sense of the term abadi land, which was not included within the definition of land under cl. (5) of S. 3, U. P. Consolidation of Holdings Act. The land was in every sense of the term abadi land, which was not included within the definition of land under cl. (5) of S. 3, U. P. Consolidation of Holdings Act. That being so the Consolidation authorities had no jurisdiction to adjudicate upon the rights of the parties in respect of the land. It being undisputed that the land has been left as abadi by the Consolidation authorities they could have had no jurisdiction in respect of anything spoken of by sub-s. (2) of S. 5, U. P. Consolidation of Holdings Act. 7. In the result this appeal must be allowed. No one has appeared before me on behalf of the respondents to oppose the appeal that leads to the difficulty that I cannot form any opinion as to the correctness or otherwise of the first judgment and decree of the trial Court dated 26th April, 1965. There is the further fact that that judgment was not set aside on merits but was set aside on a technicality by the lower appellate Court's order dated 14th February, 1966 and the suit was remanded to the trial Court for decision according to law. 1 would, therefore, set aside the judgment of the lower appellate Court dated 8th Jan., 1971 in Civil Appeal No. 44 of 1970 and the order of the trial Court dated 17th May, 1969 dismissing the suit as abated under S. 5, U. P. Consolidation of Holdings Act, and remand the suit to the trial Court for a fresh trial in accordance .with law. In view of the fact that the respondents are unrepresented in this Court and the further fact that the plaintiff-appellants suppressed this Court's order in first appeal from order 182 of 1966 from the lower appellate Court, they shall bear their own costs incurred so far. The record of the lower appellate Court shall be sent down to the trial Court with a certified copy of this judgment as soon as practicable, at any rate within 2 months from today. Under R. 26-A O. 41, C.P.C., the 2nd Aug., 1982 it fixed for the appearance of the parties before the trial Court. The record of the lower appellate Court shall be sent down to the trial Court with a certified copy of this judgment as soon as practicable, at any rate within 2 months from today. Under R. 26-A O. 41, C.P.C., the 2nd Aug., 1982 it fixed for the appearance of the parties before the trial Court. If the defendants-respondents do not appear before the trial Court on that date, the plaintiffs-appellants shall take the necessary steps for service of the summons of the suit on the defendants-respondents again in the trial Court for a date of hearing to be fixed by it.