1. This writ petition is directed against the judgment and order of the Deputy Director of Consolidation dated 7-4-1971. The dispute is in respect of Khatas Nos. 31, 32, 33 and 34 of village Barka Arif, district Meerut. In the basic year the following entries were made in the revenue papers:

Khata No. 31—Kahlid Mian, Mushtaq Khan and Nawab Khan.

Khata No. 32—Khalid Mian, Nawab Khan, Manno Khan and Budhram.

Khata No. 33—Khalid Mian, Mushtaq Khan and Nawab Khan.

Khata No. 34—Nawab Mian and Khalid Mian.

2. Before dealing with the objections filed by the different parties to the aforesaid entries made in the basic year, it may be useful to reproduce the pedigree, which is admitted and is relevant for the purpose of deciding the controversy involved in the case:

3. There is no dispute between the parties that the land comprised in all the four khatas consists of bhumidhari plots. Abdulla Khan, shown, in the above pedigree, had a son Sadiq and a daughter Smt. Sugra Begam. Smt. Sugra Begam was married to Ismail Khan. After his death, Smt. Sugra Begam married Nawab Khan. It is the name of this Nawab Khan which is entered in the basic year, mentioned above. His name had come in the revenue records after the death of his wife Smt. Sugra Begam. As stated above, Sadiq was the son of Abdulla Khan. Sadiq died leaving behind his widow Smt. Firdos Fatima. Khalid Mian, respondent No. 2, is the son of the previous husband of Smt. Firdos Fatima, who remarried after the death of her first husband Sadiq. The main dispute with regard to Khatas Nos. 31, 32, 33 and 34 is between Khalid Mian, on the one hand and Nawab Khan, Mushtaq Khan, Mst. Wazir Khanam and Smt. Firdos Begam on the other hand. The claim of Mst. Wazir Khanam was that Nawab Khan and Mushtaq Khan were co-tenure holders along with Sadiq and after his death with Smt. Firdos Begam. Nawab Khan executed a sale deed on 28-5-1959 in favour of Smt. Wazir Khanam transferring his rights in the property in dispute, whereas another sale deed was executed by Mushtaq Khan on 11-2-1963 in her favour regarding the plots of these khatas. Mst. Wazir Khanam, therefore, claimed that she having purchased the rights of the aforesaid co-tenure holders of the present four khatas was entitled to be recorded as a Bhumidhar and to obtain the right and interest belonging to the aforesaid two persons. Khalid Mian contested the claim of Mst. Wazir Khanam. He admitted that Nawab Khan and Mushtaq Khan were the co-tenants of the aforesaid khatas at one time, but alleged that since 1955 Nawab Khan and Mushtaq Khan were out of possession and as the land remained in possession of Sadiq, thereafter, Firdos Fatima and afterwards in his possession, therefore, he had perfected title in respect of these khatas by adverse possession. It may be stated that Khalid Mian alleged that after the death of Sadiq in 1955, the possession of the plots was obtained by Smt. Firdos Begam, who executed a gift deed in his favour in 1963. In this way, Khalid Mian was the sole owner of the disputed plots. He claimed that he was entitled to tack the adverse possession which started from the time of Sadiq with his own and could acquire the rights by virtue of the same.

4. Smt. Mohamadi filed an objection with regard to the plots of halt a No. 32 asserting that she was the co-tenure holder of this khata. Her claim was contested by Nanoo Khan son of Abdul Ghani. Nanoo Khan alleged that Smt. Mohamadi had no share in the aforesaid khata.

5. The Consolidation Officer decided the case in favour of Smt. Wazir Khanam and Smt. Mohamadi. He held that Khalid Mian did not acquire any title by adverse possession over the plots of khatas Nos. 31, 32, 33 and 34 and, therefore, he was not entitled to be entered as the sole bhumidhar. The Consolidation Officer further found that Mst. Mohamadi had a share to the extent of 1/12 in the property. All these cases relating to the four khatas were decided by means of a common judgment by the Consolidation Officer. Khalid Mian filed appeals against the judgment of the Consolidation Officer. Nanoo Khan also challenged the judgment of the Consolidation Officer on the ground that Smt. Mohamadi had no interest in Khata No. 32. The ground of challenge taken by Khalid Mian mainly was his adverse possession. All the appeals filed by Khalid Mian were dismissed by the Settlement Officer, Consolidation, on the finding that Khalid Mian was only a tenure holder along with Nawab Khan and Mushtaq Khan and others and, therefore, Nawab Khan and Mushtaq Khan could rightfully sell their interest in the khata in dispute in favour of Mst. Wazir Khanam. The appeal of Nanoo Khan was partly allowed and it was held by the Settlement Officer, Consolidation that Smt. Mohamadi had 1/48th share instead of 1/12th share, as held by the Consolidation Officer. With these modifications, the appeals were decided by the Settlement Officer, Consolidation. Khalid Mian and some others, who were aggrieved by the judgment of the Settlement Officer, Consolidation, filed revisions before the Deputy Director of Consolidation. All these revisions were decided by means of a common judgment dated 7-4-1971. The Deputy Director of Consolidation set aside the findings of adverse possession given against Khalid Mian by the Consolidation Officer and the Settlement Officer, Consolidation. Aggrieved, the present writ petition has been filed by Smt. Wazir Khanam and others.

6. It may be stated that in 1955, a dispute arose between Sadiq and Mazharul Islam, the husband of Smt. Wazir Khanam, as well as others, including Nawab Khan and Mushtaq Khan regarding the possession of the plots in dispute. Mazharul Islam filed an application on 10-10-1955 under Sec. 145 Cr. P.C A preliminary order was, thereafter, passed on 1-11-1955. It appears that the Magistrate was unable to decide as to which one of the parties was then in possession of the subject of dispute and, therefore, he attached the property and directed the parties to get their rights decided from a competent civil court. This order under Sec. 146 Cr. P.C was passed on 28-7-1956. In the meantime, Smt. Firdos Fatima filed a suit for injunction regarding her rights over the plots in dispute. The suit was decreed by the trial court on 19-12-1958. Consequently, a decree for permanent injunction was granted against the defendants of that suit rest, raining them from interfering with the possession of Smt. Firdos Fatima. Pursuant to the aforesaid decree of the trial court, an application was filed by Smt. Firdos Fatima before the Sub-Divisional Magistrate for the release of the plots which had been attached under Sec. 146 Cr. P.C This application was made on 31-1-1959. The Sub Divisional Magistrate issued a Parwana for the release of the plots on the said date. It, however, appears that Smt. Firdos Fatima obtained possession of the disputed plots on 2-2-1959. On these facts, the argument raised on behalf of Khalid Mian before the consolidation authorities was that neither Nawab Khan nor Mushtaq Khan or Smt. Wazir Khanam had filed any suit for recovery of possession of the plots obtained on 2-2-1959 against Smt. Firdos Fatima within three years, as required by Art. 47 of the Limitation Act (No. IX of 1908) and, therefore, the right to recover possession was extinguishd. The Deputy Director of Consolidation accepted this argument raised on behalf of Khalid Mian and found that the right of the petitioners was extinguished under Sec. 28 of the Limitation Act.

7. Learned counsel for the petitioners urged that the claim of the petitioners to get possession in the instant case could not be barred by Art. 47 of the Limitation Act inasmuch as the provisions of Art. 47 were applicable to a case where an order was passed respecting the possession of immovable property under the Code of Criminal Procedure and as, in the instant case, the Magistrate did not pass any order respecting the possession of the plots in dispute, therefore, the provisions of Art. 47 were not attracted. For the application of the provisions of Art. 47, it is necessary that a person bound by an order “respecting the possession of immovable property made under the Code of Criminal Procedure, or by any one claiming under such person, to recover the property comprised in such order, must file the suit within three years from the date of the final order in the case”. It is, therefore, necessary for applying Art., 47 that an order respecting possession must have been passed against such a person who is required to bring a suit for possession. The Magistrate, in the instant case, had not passed any order under Sec. 145 Cr. P.C holding either of the two parties in possession over the plots in dispute. The plots were simply attached, under Sec. 146 Cr. P.C and, thereafter, the delivery of those plots was given to Smt. Firdos Fatima in pursuance of the decree of the civil court on 2-2-1959. As there was no order under Sec. 145 Cr. PC, the Deputy Director of Consolidation committed an error in holding that the right of the petitioners was barred by Art. 47 of the Limitation Act. As stated above, the essential requirement for the application of Art. 47 seems to be an order of the Magistrate in respect of possession of the property, and in the absence of this essential requisite, the view taken by the Deputy Director of Consolidation to the contrary is patently erroneous. In Goswami Ranchor Lalji v. Shri Girdhari Ji (ILR XX All. 120) a Division Bench of this Court held that an order of attachment made by a Magistrate was not an order “respecting possession”, and, therefore, Art. 47 was not applicable. The same view was taken by a Division Bench of the Oudh Chief Court in Partab Bahadur Singh v. Jagjit Singh (AIR 1936 Oudh 387). It was held in this case that Art. 47 applied only to those cases in which the Magistrate had declared one of the parties to be entitled to possession until evicted therefrom in the course of law or had restored possession to a party found to have been forcibly and wrongfully dispossessed within two months of his initial order. But, where a judicial order respecting possession of immovable property has not been passed then a person would not bound by the order to bring a suit to recover the property. In view of the above, the first ground on which the Deputy Director of Consolidation held that the rights of the petitioners were extinguished is untenable.

8. The counsel for the contesting respondents strenuously urged that the order passed in the instant case was one under Sec. 145 Cr. PC, and, therefore, the provisions of Art. 47 of the Limitation Act were applicable to the facts of the present case. He invited my attention to Annexure ‘B-3’ to the Supplementary counter-affidavit filed on 3-3-1975. He placed reliance on the following part of the aforesid order:

“You are also hereby ordered to warn the remaining parties not to interfere in the possession. Description of plots to be released in favour of Firdos Fatima”.

9. Placing reliance on the above, the counsel submitted that such a direction could be given by the Sub Divisional Magistrate only when the proceedings were taken under Sec. 145 Cr. P.C and not under Sec. 146 Cr. P.C It is common case of both the parties that the only paper which was filed on the record of the Consolidation Officer regarding the proceedings under Sec. 145 Cr. PC was Annexure ‘B-3’ to the supplementary counter-affidavit. The contesting respondents did not file any order which could show that the land was released by the Magistrate in favour of Smt. Firdos Fatima on the footing that she was found in possession within two months of the passing of the preliminary order. This order recites that the order to release the plots attached in the proceedings under Sec. 146 Cr. PC was being made. This, therefore, does not establish the case of the contesting respondents that the land was, in fact, released in favour of Smt. Firdos Fatima under Sec. 145 Cr. PC in pursuance to an order where the possession of Smt. Firdos Fatima might have been found by the Magistrate. It, however, appears that the preliminary order under Sec. 145 Cr. PC was passed on 1-11-1955. The Magistrate subsequently found himself unable to decide, the controversy regarding possession of parties and, therefore, it was on 28-7-1956 that he attached the plots in dispute under Sec. 145 Cr. P.C The aforesaid date of attachment is to be found in Annexure ‘B-3’. A reading of the aforesaid date along with the order wherein it is mentioned that the plots under Sec. 146 Cr. PC are being released, goes to establish that the plots, in fact, were attached under Sec. 146 Cr. PC and they were subsequently released when Smt. Firdos Fatima obtained the decree for injunction from the civil court in 1958.

10. The only thing under Sec. 145 Cr. PC which the Magistrate has to determine is about the actual possession of the party within two months of the passing of the preliminary order. He can, however, if he considers the case one of emergency, make an attachment of the subject of dispute pending his decision, under the second proviso to sub-Sec. (4) of Sec. 145 Cr. P.C Once an order under sub-Sec. (4) of Sec. 145 Cr. PC is passed by the Magistrate the property goes in custodia legis. If the Magistrate, ultimately, finds himself unable to determine the question of possession, he may under sub-Sec. (1) of Sec. 146 attach the property. Sec. 146(1), which alone is material, is in these terms:

“If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof.”

11. It is, therefore, clear that the object of attachment under Sec. 146 Cr. PC is to hold the property in anticipation of an action in which the right to possession is to be established before a competent court and the possession of the court during such attachment would, ultimately, enure for the benefit of the party or person who is found to be its true owner. It is only when the Magistrate finds one of the parties to be in possession that there is a necessary obligation on the part of the person, against whom such an adverse order has been passed, to bring a suit within three years from the date of the order. An order passed under Sec. 146 Cr. PC is, however, not invested with such a finality. A person is required to bring a suit within three years of the passing of the order under Sec. 145 Cr. PC as it is necessary to get rid of the effect of the order under that provision. But, as stated above, the order passed under Sec. 146 Cr. PC does not have the same effect and, therefore, the law does not require filing of a regular suit within three years. In view of the above, the Deputy Director of Consolidation committed an error in holding that the relief for possession was barred by Art. 47 of the Limitation Act.

12. There is yet another ground which impels me to hold that Art. 47 of the Limitation Act will not be applicable to the instant case. Sec. 29(2) of the old Limitation Act is as under:

“Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of Sec. 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law………”

13. The provision of the U.P Zamindari Abolition and Land Reforms Act “is special or local law” is not a matter of dispute. By the Schedule made in the rules framed under the aforesaid Act, the periods of limitation for different proceedings contemplated by the U.P Zamindari Abolition and Land Reforms Act have been laid down. The period of limitation prescribed by the special law, as in the instant case, is different from the period prescribed therefor by the Schedule. For bringing a suit for possession, the period of limitation prescribed by the U.P Zamindari Abolition and Land Reforms Act at the relevant time was six years, whereas for filing a suit for partition the period of limitation is “none”. Counsel for the petitioners contended that as the special law, that is, the U.P Zamindari Abolition and Land Reforms Act, stated that there was no period of limitation for filing a suit for partition, therefore, the application of the provisions of Art. 47 of the Limitation Act was clearly excluded. He relied upon the provisions of Sec. 341 of the U.P Zamindari Abolition and Land Reforms Act in support of his contention. Learned counsel for the respondents, however, submitted in reply to the above that although it was true that the U.P Zamindari Abolition and Land Reforms Act prescribed no period of limitation for filing a suit for partition, as such, the same could be filed at any time yet still as an order under Sec. 145 Cr. P.C had been passed against the petitioners in the instant case, therefore, they were obliged to bring a suit for the purpose of saving themselves from the effect of Art. 47 of the Limitation Act within three years of the order passed under those proceedings. The submission of the learned counsel for the contesting respondents does not impress me. On the facts of the present case, the petitioners, admittedly, could not bring any suit for possession as they were co-sharers along with Smt. Firdos Fatima and as a partition among them had not taken place, such a suit for possession would have been meaningless. Under the circumstances, the only relief which they could seek from the court was one for partition. The period of limitation for filing a suit for partition was specifically mentioned in the U.P Zamindari Abolition and Land Reforms Act. Therefore, it was clear that the provisions of this special or local law had to prevail over the general.

14. In H.N Yadav v. L.N Mishra ((1974) 2 SCC 133), the Supreme Court held that the provisions of the Representation of the People Act prescribing the period of limitation for filing an election petition being special in its nature would prevail over the general. In Algoo v. Shardadin (1974 AWR 98) one of the questions was whether in view of the special provisions contained in Sec. 209 of the U.P Zamindari Abolition and Land Reforms Act it was necessary to file a suit for possession in the civil court within three years period of limitation prescribed by Art. 47 of the Limitation Act. A Division Bench of this Court held that in view of Sec. 29(2) of the Limitation Act, the period of limitation given in the U.P Zamindari Abolition and Land Reforms Act for a suit under Sec. 209 would apply and prevail. It was further found that as Sec. 331 of the U.P Zamindari Abolition and Land Reforms Act prohibited the civil court from taking cognizance of any suit of the nature prescribed in Column 3 of Schedule II of the said Act, so the suit for possession of the nature under Sec. 209 of the U.P Zamindari Abolition and Land Reforms Act could not be entertained by any civil court. Consequently, the period of limitation prescribed under Art. 47 of the Limitation Act had no application. It is true that the aforesaid case related to the controversy regarding the suit for the recovery of possession, whereas we are concerned with a suit for the relief of partition. But, in principle, there is no distinction. Accordingly, applying the law laid down by the aforesaid Division Bench, I hold that the provisions of Art. 47 of the Limitation Act were not applicable to the instant case.

15. Learned counsel for the contesting respondents relied on two cases of the Supreme Court in Ambika Prasad Thakur v. Ram Ekbal Rai (AIR 1966 SC 605) and Munshi Manzoor Ali Khan v. Sukhbasi Lal (AIR 1974 SC 706). In my opinion, none of the two cases relied upon by the learned counsel for the contesting respondents supports his contention. In the earlier case, the Supreme Court found on the facts of that case that as an order under Sec. 145 Cr. P.C was passed but a suit for recovery of possession was not filed within three years, as required by Art. 47, the suit for the recovery of possession filed after the expiry of the period of three years was barred by time. In the alternative, it had also found in the said case that the relief for possession was barred by Art. 142 of the Limitation Act. It may be noticed that the question regarding the application of Sec. 29(2) of the Limitation Act did not arise for decision in the said case. Similarly, in the latter case, the Supreme Court held that a final order u/Sec. 145 Cr. P.C declaring the defendants of that suit to be in possession having been passed, the provisions of Art. 47 were applicable to that case.

16. Counsel for the contesting respondents also contended that as the contesting respondent No. 2 and his predecessors-in-interest were in adverse possession of the plots in dispute, the respondent No. 2 acquired right over the land belonging to the petitioner. He submitted, as the plots attached in the instant case were released in favour of Smt. Firdos Fatima in pursuance of the order passed u/Sec. 145 Cr. P.C therefore, the possession of the criminal court between 1955 and 1959, till it was released, should be taken to be the possession of contesting respondent No. 2. It may be recalled that the suit for injunction, which was filed by Smt. Firdos Fatima in 1955, against the petitioners and their predecessor-in-interest, ultimately was decreed on the finding of possession. The civil court refused to decide the question of title on the view that Smt. Firdos Fatima being one of the co-sharers could get injunction if she was found to be in exclusive possession of the plots. The civil court, therefore, confined itself only to possession. After the judgment of the civil court, Smt. Firdos Fatima filed an application for the release of the plots and as the criminal court found that a civil court had decided the question of possession in favour of Smt. Firdos Fatima, it made an order for the release of the plots in her favour. Taking the above facts into consideration, it would be found that the title of Smt. Firdos Fatima was not decided. The possession of the criminal court during the period that the plots remained under attachment would in law be the possession of the true owner. Once the property is in custodia legis, the court holds it on behalf of its owner and not on behalf of the trespasser.

17. In D.J Nidhi Ltd. v. K. Lakshminarayana Chattiar (AIR 1939 Madras 456), a Special Bench dealing with the aforesaid controversy held as under:—

“A Magistrate acting under Sec. 146, Cr. PC, takes the property out of the possession of the disputants and the subsequent possession of the receiver is in law treated as possession on behalf of the true owner and not of the party previously in possession without title.”

18. The same view has been expressed by the Andhra Pradesh High Court in Smt. Pentapati Venkatratnam v. Karri Venkatanarasavamma (AIR 1964 AP 109).

19. A Division Bench of this Court in Aneg Singh v. Ram Nath (1973 AWR 589) held to the following effect:

“The possession of the court or of a receiver u/S. 145 Cr. P.C enures for the benefit of the real owner. If it is found that the trespasser was actually in possession on the date of the preliminary order, then the effect of the court's possession thereafter is to effect an interruption in his possession. The trespasser cannot count the period of the possession of the court or the receiver as his own possession for the purpose of limitation for a suit for ejectment or possession.”

20. In view of the above, the counsel for the contesting respondents is not right in contending that the period of possession during which the property remained under attachment would be counted to his advantage. Had the civil court decided the case on title in favour of the contesting respondents, there would have been no difficulty in accepting his submission. But, as it did not happen and the possession of the criminal court is meant for the benefit of the true owner, the period from 1955 to 1959 has got to be excluded.

21. Learned Counsel for the petitioners further contended that the suit for partition had, in tact, been filed by Smt. Wazir Ktmnam within twelve years of the passing of the order under Sec. 145 Cr. PC, when the property was initially attached and, therefore, Smt. Firdos Fatima did not complete twelve years of possession. In support of the above argument, he referred to paragraph 16 of the supplementary affidavit filed on 19-2-1975. In this paragraph the petitioners alleged that Smt. Wazir Khanam had filed three suits under Sec. 176 of the U.P Zamindari Abolition and Land Reforms Act on 31-12-1964 in respect of the plots in dispute. In support of the averment made in this paragraph he filed three copies of the plaints of the aforesaid three suits. A counter-affidavit has been filed in reply to the aforesaid supplementary affidavit. The contesting respondents have not denied the facts mentioned in this paragraph. Counsel for the petitioners, however, submitted that as the fact of filing the aforesaid suits under Sec. 176 of the U.P Zamindari Abolition and Land Reforms Act was not brought ‘on the record of the consolidation courts, the same could not now be taken into account by this Court as the High Court could look into the records of the courts below only for the purpose of issuing a writ of certiorari. According to his submission, the High Court could not reconstruct the record. He relied upon a case in The King v. Nat Bell Liquors, Limited, 1922 (2) Appeal Cases 128 at page 156) in which the following observations were made:

“That the superior court should be bound by the record is inherent in the nature of the case. Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not to review, is confined. That supervision goes to two points; one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.”

22. The point is not free from difficulty. I am, however, no inclined to give any concluded opinion on the same. In the instant case, I feel that when the suits had, in fact, been filed by Smt. Wazir Khanam within twelve years, great injustice would be done to the petitioners if the fact of filing of these suits within twelve years is not taken into consideration. I would have remanded the case to the Deputy Director of Consolidation giving him a direction to consider the question of admitting the copies of these three plaints in revision under Sec. 48 of the U.P Consolidation of Holdings Act, but as the contesting respondents have not denied the fact stated in paragraph 16 of the supplementary affidavit despite the opportunity given to them, it does not appear essential to do so. The remand, in these circumstances, will only be a question of formality. As the matter is lingering since long, I consider it essential in the interest of justice to take note of the facts mentioned in paragraph 16 of the supplementary affidavit and hold that the suits had been filed by Smt. Wazir Khanam within twelve years, of the commencement of the proceedings under Sec. 145 Cr. P.C

23. Learned counsel for the respondent No. 2, thereafter, submitted that the question of title regarding the plots in dispute having been finally decided in suit No. 54 of 1955, between Smt. Firdos Fatima and Nawab Khan, Mushtaq Khan, the finding given in the said suit operated as res judicata.

24. The submission of the learned counsel for respondent No. 2 is meritless and must be repelled. As noticed above, the aforesaid suit was filed by Smt. Firdos Fatima in the civil court for injunction, restraining the defendants of that suit from cutting the sugarcane crops, the trees standing on the fields, and interfering with her possession over the disputed plots. Her claim in the aforesaid suit was that she was the bhumidhar of plots mentioned in Schedule ‘A’ and sirdar of the plots of Schedule ‘B’, and was in exclusive possession of the same since after the death of her husband Saddiq Khan. But, as the defendants had started illegally interfering with her possession, so she filed the suit. The suit was contested by the defendants. They denied the claim of Smt. Firdos Fatima and further alleged that she was not in possession of the plots in dispute. The learned Additional Civil Judge, who decided the suit, confined his decision to possession and holding that Smt. Firdos Fatima was in exclusive possession, granted the decree for possession. The learned Civil Judge refused to decide the question of title. The relevant finding given by him is quoted below:

“Smt. Sugra died during the pendency of the suit and the defendant no. 5. Nawab Khan became her heir. But, otherwise, he too had no interest in the suit property at the time of the filing of the suit. Since the plaintiff is in possession of the disputed property even he could not interfere with her peaceful possession. If he or any other co-sharer had any right in the property in dispute the remedy lay by way of a suit for partition and not by taking forcible possession of the property in exclusive possession of a co-sharer.”

25. The above judgment of trial court was substantially maintained in the appeals filed by Nawab Khan. The learned District Judge also held that Smt. Firdos Fatima being in possession was entitled to the relief for injunction. Dealing with the question of title, he observed that:

“It may be seen that Smt. Firdos Fatima had filed this suit for a relief of injunction on the ground that she was in possession of the property in suit after the death of Mohammad Saddiq. The fact whether she was in possession of the property in suit as a bhumidhar or a sirdar was not directly in issue.”

26. It is, therefore, clear that the issue regarding title of Smt. Firdos Fatima did not directly arise in that case and even if it be deemed that the matter was directly raised in the issue but since it was expressly left open and was not decided, the question of the applicability of res judicata does not arise. The mere allegation by the plaintiff is not sufficient to hold that the question was in dispute between the parties and had been decided. What is necessary to be shown is that the matter was heard and finally decided.

27. Apart from the above, it appears that the plea of res judicata raised in this petition, was never the subject matter of decision before the Consolidation authorities. This also disentitle the respondent No. 2 to agitate the same for the first time in this writ petition. In the result, the writ petition succeeds and is allowed. The order of the Deputy Director of Consolidation is quashed, and that of the Settlement Officer, Consolidation, is restored. The petitioners will be entitled to receive their costs from respondents Nos. 2 and 3.

K.J.C

28. Petition allowed.