Rajan Roy, J. - (1.) This writ petition under Article 226 of the Constitution of India seeks to challenge the order dated 05.11.2005 passed by Sub Divisional Magistrate, Mankapur District Gonda, in Suit No. 91/272 under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act, 1950') deciding issue nos. 2, 3 and 4 thereof which were as under:- "2: Whether the suit was barred by section 49 of the U.P. Consolidation of Holdings Act, 1953 If so, its effect 3: Whether suit was barred by res-judicata If so, its effect, 4:- Whether the suit has been preferred on false and incorrect facts on account of which it was not maintainable If so, its effect."
(2.) The land in question was purchased by the opposite party no.3 during consolidation operation as claimed and, based thereon an application was filed under Section 12 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the Act, 1953'), which was dismissed for want of prosecution on 22.01.1980 in the absence of the applicant-plaintiff but in the preseearlier,whichnce of the defendant in the said suit who is the petitioner herein and as no restoration application was filed during the Consolidation operations or after its closure, therefore, the issue was whether after its closure, the suit under Section 229-B in respect of the same land in question based on the same sale deed was barred by Section 49 of the Act 1953 and res-judicata.
(3.) The S.D.M. decided the issues in the negative and in favour of the plaintiff who is the opposite party herein by saying that the proceedings under Section 12 of the Act 1953 and 34 of the Act 1901 are similar and both of them are summary proceedings, moreover, Section 11 C.P.C containing provisions based on principle of res-judicata are applicable only when a matter is decided after framing of issues as is evident from Section 4 C.P.C. and as in the summary proceedings under Section 12 neither the issues were framed nor were decided finally, therefore, the bar of Section 11 C.P.C. was not applicable and the principles of res-judicata was also not applicable. As far as the bar of Section 49 is concerned, the S.D.M. opined that that sale deed had been executed after the provisional consolidation scheme, therefore, the bar of Section 49 would not apply.;