R.M.Sahai, J. - (1.) The brief facts giving rise to this writ petition, directed against the order of consolidation authorities, are that ancestor of opposite parties No. 5 to 7, described hereinafter as Cook brothers, were tenants. They mortgaged the land with Kamta Upadhya, father of petitioners, long before the date of vesting. It is not disputed that mortgage has not been redeemed. Ram Chandra Shukla, opposite party No. 4 filed a suit under Section 59/61 of U. P. Tenancy Act against Cook brothers which was decreed. The petitioners were admittedly, not parties to this suit. In 1957 Kamta filed a suit under Section 229B of U. P. Z. A. Act 1 of 1951 against Ram Chandra and Cooks and sought a declaration that he was sirdar of all the five plots. The trial court decreed his suit for one plot and for the remaining four plots held Kamta to be asami. Aggrieved against this decision Ram Chandra filed appeal for all plots, Cooks for one plot and Kamta filed cross-objection in respect of four plots. The Additional Commissioner decided the appeal on 16-3-1960. He held that Ram Chandra had no right and his appeal was consequently dismissed. The cross-objection of Kamta was also dismissed. But the appeal of Cooks was allowed in respect of one plot, of which Kamta was declared Sirdar, and it was held that Kamta was assami of all the plots. Ram Chandra filed second appeal against this order and the Board of Revenue dismissed it on 25-4-1961. These orders of Revenue Courts became final. In 1963 Ram Chandra filed a suit for injunction and can Ration of the Revenue, Court decree which has abated, due to enforcement of consolidation, in second appeal.
(2.) In the basic year records prepared under U. P. Consolidation of Holdings Act, Ram Chandra was shown as Sirdar. The petitioner who are sons of Kamta, therefore filed an objection under Sec. 9A and claimed that they being assami and in possession and no suit having been brought for ejectment against them they acquired rights of Sirdar under Section 204 of Z. A. Act. The entry in favour of Ram Chandra was challenged as incorrect as he had been held to have no right in an earlier litigation which operated as res-judicata. Ram Chandra once again claimed. -that the land was settled in his favour by Raja Saheb Majholi and he was Sirdar. The plea raised on his behalf was the same as before the Revenue Courts except that Cooks in+ revenue courts had contested the claim, both of petitioners and Ram Chandra alleging that they never surrendered, a plea which, was raised by both parties, but before the Consolidation Officer they filed an objection and admitted that they had surrendered and I land was settled in favour of Ram Chandra.
(3.) The plea of res judicata has been repelled by all the consolidation authorities on queer reasonings. The Consolidation Officer held that petitioner and Ram Chandra were both bound by the order of Revenue Courts but as Cooks have been admitting Rant -Chandra as Sirdar and none of the parties-can be held to be Sirdar Cooks are estopped from challenging Ram Chandras right. The Settlement Officer, Consolidation held that Ram Chandra was entered in basic year. The only person who could object was Cook and as he did not challenge the entry could not be expunged as that could be done only on a claim made by person having better rights. The Deputy Director also adopted the same reasoning.;