J.N Dubey, J.:— This writ petition has come up for hearing before us on a reference made by a learned single Judge of this Court on his doubting the correctness of the two single Judge decisions of this Court in Brij Lal v. Deputy Director of Consolidation, Lucknow Camp at Lucknow 1982 All WC 862 and Nathai v. Joint Director of Consolidation, Allahabad 1984 All LJ 324.

2. The brief facts of the case are these. In the basic year the land in dispute was recorded in the name of opposite party No. 4 Smt. Madina Bibi. Petitioners Brahmanand Rai and Basudeo Rai filed objection under S. 9A(2) of the U.P Consolidation of Holdings Act (hereinafter referred to as the Act) claiming Sirdari rights in the land in dispute on the basis of the lease executed in their favour by the Zamindar Sri Mahadeo Rai on 27-5-1950. The objection was contested by the opposite party No. 4 Smt. Madina Bibi on the ground that she had purchased the land in dispute from Lugari Rai son of Mahadeo Rai on 30-9-1954 and since then she has been in possession thereof. The Consolidation Officer who heard the objection rejected it on 9-8-1970. Petitioners filed appeal to the Settlement Officer Consolidation which was dismissed by the Assistant Settlement Officer Consolidation on 15-10-1971. Thereafter, they filed revision to the Deputy Director of Consolidation but it was also dismissed on 27-5-1974. Feeling aggrieved, they have come up to this Court under Art. 226 of the Constitution. We have heard the learned counsel for the parties and have perused the record.

3. The learned counsel for the petitioners contended that the petitioners filed suit No. 347 of 1951 in the Court of Judicial Officer against Mahadeo Rai claiming tenancy rights in the land in dispute on the basis of lease deed dt. 27-5-1950 which was decreed on 13-2-1951. The judgment of the Judicial Officer not having been challenged by Mahadeo Rai has become final between the parties and would operate as res judicata in the present proceedings and the view to the contrary of the Consolidation authorities is illegal. On the other hand, the learned counsel for the opposite party No. 4 has contended that the decree dt. 13-2-1951 was an ex parte decree and as such unless it was proved by the petitioners that Mahadeo Rai defendant of that suit was duly served with the notice and he did not appear to contest the suit in spite of service that decree could not operate as res judicata in the present proceedings. He has further contended that it was incumbent on the petitioners to file a copy of the plaint of Suit No. 347 of 1951 before the Consolidation Authorities which was admittedly not done and for this reason also the ex parte decree could not operate as res judicata.

4. All the three consolidation authorities have taken the view that ex parte decree dated 13-2-1951 passed in Suit No. 347 of 1951 would not operate as res judicata in the present proceedings but they have given different reasons for holding so. While the Consolidation Officer has hardly assigned any reason for ignoring the aforesaid ex parte decree, the Assistant Settlement Officer Consolidation has decided this point against the petitioners on the ground that opposite party No. 4 Smt. Madina Bibi was not a party in the said suit. On the other hand, the Deputy Director of Consolidation has observed, that as the petitioners did not file a copy of the plaint of Suit No. 347 of 1951 it was not possible to ascertain the nature of rights granted to them under the decree passed in that suit.

5. We are unable to agree with the arguments of the learned counsel for the opposite party No. 4 that the burden to establish that the defendants in the suit were served with the notice and they did not appear to contest the said suit in spite of service was upon the petitioners and as they failed to discharge it the ex parte decree dt. 13-2-1951 would not operate as res judicata in the present proceedings. The learned counsel has placed reliance on a decision of this Court in Nathai v. Joint Director of Consolidation, Allahabad (1984 All LJ 324) (supra) in which the learned Judge has relied upon his own earlier decision in Brij Lal v. Deputy Director of Consolidation, Lucknow Camp at Lucknow (1982 All WC 862) (supra) and Smt. Kanti Khare v. Kali Prasad Asthana AIR 1983 All 45. However, in our opinion, the decision of the Division Bench in Smt. Kanti Khare v. Kali Prasad Asthana (supra) is not on the point and is quite distinguishable. Thus, there are only two decisions, viz., Nathai v. Joint Director of Consolidation, Allahabad (1984 All LJ 324) and Brij Lal v. Deputy Director of Consolidation, Lucknow (1982 All WC 862) (supra) in which this Court has taken the view that a person setting up the plea of res judicata in such cases should also establish that the defendants in the suit were duly served with the notice and they did not appear to contest the suit in spite of service. In our opinion, the decisions of this Court in the aforesaid two cases do not lay down a correct law.

6. The Court can proceed ex parte against a person only if it is proved that summons was duly served upon him and, therefore, once an ex parte decree is passed against a person the presumption would be that the summons was duly served upon him. The ex parte decree can be set aside by that very court on the defendant's satisfying it that summons was not duly served upon him. Thus, the burden to establish that summons was not served upon him was on the defendant of that suit which could not be shifted on the plaintiff while determining as to whether an ex parte decree would operate as res judicata against him or not. We are of the view that the decisions of this court in Nathai v. Joint Director of Consolidation, Allahabad and Brij Lal v. Deputy Director of Consolidation, Lucknow run contrary to the spirit of the procedural law which places the ex parte decree at par with ordinary decree except that the ex parte decree could be set aside on the defendant's satisfying that court that summons was not duly served upon him he was prevented from appearing in the court for some other sufficient reason. Moreover, the question whether a particular decision operates as res judicata may arise after such a long time by which all the record regarding service of summonses etc. may be weeded out making it impossible for the plaintiff to adduce evidence to prove that the summons had been duly served. In the circumstances, placing of burden of proof on the plaintiff is likely to result in miscarriage of justice.

7. We also find it difficult to agree with the contention of the learned counsel for the opposite party No. 4 that as the petitioners did not file a copy of the plaint of Suit No. 347 of 1951 the decree passed in that suit could not operate as res judicata in the present proceedings. In order to appreciate this argument of the learned counsel we may refer to the relevant provisions of section 11 of the Code of Civil Procedure insofar as they are material for present purposes. They read thus:

“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

8. A plain reading of S. 11 shows that to constitute a matter res judicata the following conditions must be satisfied, namely (I) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit; (II) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim (III) The parties must have litigated under the same title in the former suit; (IV) The court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and (V) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

9. As stated above a person setting up the plea of res judicata has to satisfy the Court that all the five conditions mentioned above have been satisfied. From the record we find that the opposite party No. 4 resisted this claim of the petitioner only on the ground that she was not a party in the said suit. Admittedly, she was claiming rights in the land through Mahadeo Rai who was a party in the suit and as such this defence was not legally available to her. Undisputedly, the land originally belonged to Mahadeo Rai and on his death on 25-11-1951 it was inherited by his son Lugar Rai who sold it to opposite party No. 4 on 30-9-1954. This being so, she had absolutely no right or interest in the land in dispute on the date of the filing of the said suit and, therefore, there was no question of her being impleaded as party in it. In our opinion, there was hardly any necessity of the plaint to ascertain the nature of rights granted to the petitioner in that suit and as such the Deputy Director of Consolidation was not legally justified in refusing to treat the ex parte decree as res judicata in the present proceedings on that ground. Admittedly Suit No. 347 of 1951 was filed under S. 59 of the U.P Tenancy Act which provides that any person claiming to be a tenant or a joint tenant may sue the landholder for a declaration that he is a tenant, or for a declaration of his share in such joint tenancy and, therefore, once the suit filed by the petitioners in that section was decreed the presumption was that they were declared tenants of the land in dispute.

10. In paragraph 6 of the counter affidavit this claim of the petitioners has been contended on the ground that the petitioners after obtaining a fake lease filed a collusive suit and obtained an ex parte decree but neither the lease nor the ex parte decree was ever acted upon. Thus, we find that even in the writ petition it has not been asserted that some ingredients of S. 11, C.P.C was not satisfied. When there was no serious challenge about satisfaction of any of the five ingredients of S. 11, C.P.C, in our opinion, the non-filing of the copy of the plaint by the petitioners before the consolidation authorities is wholly immaterial. The learned counsel for the opposite party No. 4 placed reliance on the decision of the Supreme Court in Isher Singh v. Sarwan Singh, AIR 1965 SC 948 where it was observed that the question whether a matter was directly and substantially in issue in the former suit has to be decided (a) on the pleadings in the former suit (b) issues struck therein and (c) decision in the suit; and urged that it was necessary for the consolidation authorities to look into the pleadings of the parties in the earlier suit which could not be done in absence of the plaint. In our opinion, this case is of no help to opposite party No. 4. This decision only lays down that the pleadings of the parties in the earlier suit and the issues framed therein should be looked into in order to ascertain whether all the ingredients of S. 11, C.P.C were satisfied. It does not lay down that copy of the plaint has to be invariably filed irrespective of the fact whether there is challenge from the side of the opposite party about the existence of the conditions of that section or not.

11. The claim of the opposite party that the ex parte decree was obtained in collusive proceedings can also not be sustained inasmuch as neither there is any material on record to prove that the ex parte decree was obtained in collusive proceedings nor this ground can be permitted to be Urged in these proceedings. It is now well settled that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceedings. In State of West Bengal v. Hemant Kumar Bhattacharjee, AIR 1966 SC 1061 the Supreme Court observed thus,—

“……This argument proceeds on a fundamental misconception, as it seeks to equate an incorrect decision with a decision rendered without jurisdiction. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. The learned Judges of the High Court who rendered the decision on 4-4-1952 had ample jurisdiction to decide the case and the fact that their decision was on the merits erroneous as seen from the later judgment of this Court, does not render it any the less final and binding between the parties before the Court. There is, thus, no substance in this contention. The decision of the High Court dt. 4-4-1982 bound the parties and its legal effect remained the same whether the reasons for the decision be sound or not.”

12. In our opinion, the ex parte decree dt. 13-2-1951 passed in suit No. 347 of 1951 would operate as res judicata in the present proceedings and the consolidation authorities erred in taking the contrary view.

13. The ex parte decree dt. 13-2-1951 operates as res judicata in the present proceedings and as such the consolidation authorities had no jurisdiction to consider the validity of the lease executed by Mahadeo Rai in favour of the petitioners on 25-5-1951. That being so, the finding of the Deputy Director of Consolidation that the said lease was executed by Mahadeo Rai for some ulterior motive or it was fictitious document cannot be legally sustained. Even otherwise the reasons given by the Deputy Director of Consolidation for holding the lease as fictitious document are not correct. There appears to be nothing on the record to indicate that Mahadeo Rai had executed the lease deed in favour of the petitioner for some ulterior motive but even assuming that it was so the validity of it could not be challenged by him or his successors. The Deputy Director of Consolidation went on saying that Mahadeo Rai might have executed the lease deed to circumvent the provisions of certain progressive enactments hardly realising that those enactments had not even come on statute by that time. This shows that the Deputy Director of Consolidation has not considered the case of the parties in right perspective.

14. The learned counsel for the petitioners contended that the consolidation authorities were not legally justified in granting Sirdari rights to opposite party No. 4 under S. 210 of the U.P Zamindari Abolition & Land Reforms Act without considering the entire evidence of the petitioners. According to him, at least the Deputy Director of Consolidation being the final court of fact must have considered the entire evidence of the petitioners. He has cited two decisions of this Court in support of his contention. In Mahabir v. Deputy Director of Consolidation 1974 Unreported Revenue Cases 674 a single Judge of this Court held thus,—

“Sri S.N Upadhya, appearing for the contesting respondents strenuously contended that the Deputy Director of Consolidation has considered some evidence and as such his finding cannot be set aside merely because he had ignored the oral evidence. He cited a number of cases in support of his contention that if the last court of fact had decided the case on a consideration of some evidence its finding cannot be set aside. I am afraid this contention cannot be accepted because the Deputy Director of Consolidation is the last court of fact and the finding recorded by it normally cannot be challenged in this Court under Art. 226 of the Constitution. It is, therefore, essential for the Deputy Director of Consolidation to consider the entire evidence on the record and when the Deputy Director of Consolidation his ignored the material oral, evidence in the case his order cannot be sustained.”

15. In Paras Nath v. Wajiul Hasan, 1974 Unreported Revenue Cases 615, a Division Bench of this Court observed as under,—

“The only question involved in this case out of which this appeal has arisen was as to whether Banwari was the sister's son of the last male tenant. The Settlement Officer (Consolidation) on a consideration of oral and documentary evidence came to the conclusion that this Banwari was the sister's son. When the matter came up in revision before the Deputy Director of Consolidation, the Deputy Director of Consolidation did not discuss the oral evidence but only on the 1 basis of the Civil Court judgment affirmed the judgment of the Settlement Officer (Consolidation). It is well settled that a final court of fact must consider the oral and documentary evidence before giving final verdict on a question of fact. In the present case the Deputy Director of Consolidation does not appear to have considered the oral evidence at all. After the quashing of the order by the learned single Judge the Deputy Director will consider the oral as well as documentary evidence and will give his decision. Merely because his order has been quashed it will not prejudicially affect the appellants. The Deputy Director will again consider oral and documentary evidence and thereafter will decide. The decision of the learned single Judge quashing the order on the ground that the Deputy Director has not considered the oral evidence is correct and calls for no interference.”

16. On the other hand, the learned counsel for the opposite party No. 4 contended that as the Deputy Director of Consolidation was passing an order of affirmance it was not necessary for him to consider the entire evidence of the petitioners. According to him, the decisions in Mahabir v. Deputy Director of Consolidation and Paras Nath v. Wajiul Hasan (supra) have been impliedly overruled by a Full Bench of this Court in Nanha v. Deputy Director of Consolidation, Kanpur, 1975 All WC 1 : (AIR 1976 All 91) in which the Full Bench while answering the question whether an order or a finding of a court or tribunal, based on evidence on the record, can be interfered with under Art. 226 of the Constitution, if some material evidence to the contrary has been ignored from consideration by the court or the tribunal, observed thus,—

“If it appears that a court of fact has in substance based its findings on no evidence or that its finding is perverse in the sense that no reasonable person could possibly come to that conclusion or that it erroneously ignores a vital plea or material evidence which affects the result, a manifest error of law apparent on the face of the record leading to failure of justice can be said to be established. But if a court or a tribunal bases its finding on a consideration of all relevant evidence, but an appellate or a revisional court or tribunal while affirming the finding does not refer to some material or contrary evidence in its order it cannot be said that it has been ignored from consideration so as to entitle the High Court to interfere under Art. 226 of the Constitution.”

17. In our opinion, the Full Bench in Nanha v. Deputy Director of Consolidation, Kanpur (supra) has laid down certain conditions under which an order or a finding of a Court or tribunal, based on evidence on the record, can be interfered with under Art. 226 of the Constitution but it would not amount to impliedly overruling the decisions in Mahabir v. Deputy Director of Consolidation and Paras Nath v. Wajiul Hasan (supra). Applying the dictum of the Full Bench in Nanha v. Deputy Director of Consolidation, Kanpur (supra) we are of the opinion that the finding recorded by the consolidation authorities that the opposite party No. 4 has perfected sirdari rights in the land in dispute under section 2101 of the U.P Zamindari Abolition and Land Reforms Act, cannot be legally sustained. The petitioners had led both oral as well as documentary evidence in support of their claim that they have been in continuous possession of the land in dispute ever since the execution of lease by Mahadeo Rai in their favour on 27-5-1950, but none of the three consolidation authorities have considered oral evidence of the petitioners which was of great evidentiary value. The consolidation authorities have presumed that opposite party No. 4 entered into possession on the date of execution of sale deed in her favour on 30-9-1954 and remained in continuous possession thereafter without any basis. When both the parties claimed possession on the land in dispute and had led evidence in support of their respective claims it was incumbent upon the consolidation authorities to have recorded a finding on this point after considering the entire evidence on record. In Nanha v. Deputy Director of Consolidation (AIR 1976 All 91) (supra) the Full Bench while giving its opinion as above has also observed that since the High Court does not, under Art. 226, sit in appeal it insists that the inferior court or tribunal should consider all the relevant aspects and evidence which has not been done in this case.

18. The learned counsel for the petitioners has also assailed the findings of the consolidation authorities that the opposite party No. 4 was protected by the provisions of sections 41 and 43 of the Transfer of Property Act. According to him, neither the conditions of Ss. 41 and 43 of the T.P Act were fulfilled in the present case nor any finding to that effect has been recorded by either of the consolidation authorities. We find substance in the arguments of the learned counsel for the petitioners. The Deputy Director of Consolidation has granted benefit of Ss. 41 and 43 of the T.P Act to opposite party No. 4 merely on the ground that the lease deed relied upon by the petitioners was forged. This, in our opinion, could not be a ground for granting protection of Ss. 41 and 43 of the Transfer of Property Act. As a matter of fact in view of our opinion that the ex parte decree dt. 13-2-1951 operates as res judicata in the present proceedings, the Deputy Director of Consolidation had no jurisdiction to record any finding about the validity or genuineness of the lease deed.

19. In the result, the writ petition succeeds and is allowed in part.

20. The order dt. 27-5-1974 of the Deputy Director of Consolidation, Ghazipur is quashed and he is directed to decide the revision of the petitioners afresh on merits in accordance with law in the light of observations made above. We make no orders as to cost.

21. Petition allowed.