K. N. Misra, J. - (1.) THE dispute in the present writ petition relates with respect to plots Nos. 499 and 502 of Khata No. 160 and plot no. 65 of Khata No. 171 situate in village Maseni, Tahsil Sadar, District Farrukhabad. In the basic year Khatauni names of petitioners or their predecessors-in-interest were recorded in Class IX, and the names of respondents 2 to 9 or their predecessors-in-interest were recorded on Khata No. 160 as Bhumidhar tenants. Objections were filed by the petitioners to the effect that they were bhumidhars of the plots in dispute of Khata No. 160, and as such, their names be recorded after deleting the names of the respondents. On Khata No. 171 which consists of one plot, namely, plot No. 65, petitioners were recorded as Sirdars and objections were filed by the respondents that their names be recorded as Bhumidhars over the said plot after expunging the names of the petitioners. THEse objections were consolidated and decided by the Consolidation Officer by the order dated 18-6-1980. THE objection filed by opposite parties was allowed and their names were ordered to be recorded on Khata No. 171 and the objection filed by petitioners in respect of Khata No. 160 was dismissed maintaining the entries in the names of opposite parties 2 to 9. Aggrieved by that order petitioners preferred appeal which was allowed by the Settlement Officer Consolidation by order dated 28-8-1931. He remanded the case to the Consolidation Officer holding that the decisions in the earlier litigation between the parties in respect of the land in dispute would not operate as res-judicata, and, as such, the case be decided on merits ignoring the decisions in the earlier litigation. Aggrieved by that order opposite parties 2 to 9 preferred revision which has been allowed by the Assistant Director of Consolidation, Farrukhabad vide order dated 8th June, 1983. He has held that the decisions in the earlier litigation between the parties operate as res-judicata and directed the Consolidation Officer to decide the case in the light of the observations made by him in the judgment. Petitioners have preferred this writ petition against the said order passed by the Assistant Director of Consolidation.
(2.) LEARNED counsel for the petitioners urged that the decision in the earlier litigation does not operate as res-judicata and the view taken by the Assistant Director of Consolidation is legally erroneous. He pointed out that the petitioners had filed suit No. 141 of 1968 against the respondents under Section 229 B of the UP ZA and LR Act seeking the declaration that they were the tenure-holders and the respondents had no concern with the land in dispute. This suit was decreed by the trial court on 28-4-1971. Jagannath and others (respondents) filed an appeal before the Additional Commissioner, which was allowed by him, vide order dated 1-7-1972. And the suit of the petitioners was dismissed holding the respondents to be tenure-holder of the land in dispute and the claim of the petitioners was rejected. Against that order the petitioners had filed second appeal and during the pendency of that appeal, Bandidin plaintiff-appellant died on 15-9-1973. His heirs and successors were not substituted, and, as such, the Board of Revenue by the order dated 23-7-75 abated the appeal. An application for setting aside the abatement and for substitution was also moved before the Board of Revenue which too was dismissed on 27-7-1978. These orders became final. The result was that the judgment and decree passed by the Addl. Commissioner in appeal, became final between the parties. Learned counsel for the petitioners urged that since the second appeal was dismissed having abated under Order 22, Rule 9 CPC, and, as such, the decree passed in that suit by the Additional Commissioner, will not operate as res-judicata. In support of his contention learned counsel placed reliance on Parmeshwar Din v. Deputy Director of Consolidation, Rae Bareli, 1979 ALJ 1154 wherein it was held that by the abatement of appeal against the dismissal of the suit under Section 209/229 of the UP ZA and LR Act, the cause of action accrued to the petitioners under Section 9 of the U. P. Consolidation of Holdings Act, will not be destroyed and the petitioners would not be debarred from ventilating their rights by invoking jurisdiction under Section 9 of the U. P. Consolidation of Holdings Act. Learned counsel placing reliance on this decision urged that since in view of the aforesaid decision objection filed by the petitioner under Section 9 would be maintainable, and, as such, the petitioners' claim about their right and title in respect of the land in dispute, deserves to be determined on merits and it cannot be said to be barred by res-judicata. I am unable to agree with this contention. To say that the objection under Section 9 of the U. P. Consolidation of Holdings Act is maintainable, is one thing and the question whether the earlier decision in a suit would operate as res-judicata or not, is a different matter. It cannot be disputed that when extracts of C. H. Form 5 in respect of any holding are published under Section 9 of the Act, any person claiming right, title or interest in the land in dispute, can file objection under Section 9. The objection filed by such person cannot be thrown out as not maintainable because he gets a cause of action to file an objection under Section 9, upon the publication of extracts of C. H. Form 5, but the decision of that claim put-forth in the objection has to be determined on merits according to law. If the claim filed by the petitioners under Section 9 is barred by res-judicata on account of the earlier decisions, between the parties, the claim has got to be rejected and thrown out on that ground. It is well settled that if a decision of the trial court, or that of the appellate court, is under appeal that decision cannot operate as res-judicata pending the appeal. But it is equally correct to say that when appeal is dismissed for default or abates, the decision in appeal operates as res-judicata as regards the point decided by it. In the event the appeal is dismissed having been abated, the judgment passed by the lower appellate court becomes final, binding and operative between the parties as res-judicata. I am fortified in taking this view on a decision in Bairagi v. Bandohi, 1979 RD 323 wherein, it has been held ;- " For determining the question of res-judicata the findings recorded by the first appellate judge would be relevant, but the date for determining the question of res-judicata would be the date when the second appeal was dismissed having abated.
(3.) IN this view of the matter I find that the Assistant Director of Consolidation has not committed any error of law or jurisdiction in holding that the aforesaid decisions in the earlier litigation between the parties would operate as res-judicata and he has rightly directed the Consolidation Officer to decide the case in accordance with it. In the result I find no substance in the instant writ petition and it is accordingly dismissed in limine.;