JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree dated 3-8-1968 passed by Sri S.M. Husan, Additional Commissioner, Faizabad Division in appeal no. 340 of 1967 against the order dated 23-1-1967 in Suit No. 2-66 under Sections 211/167, U.P.Z.A. and L.R. Act. 2. I have heard the learned counsels for the parties have one through the record. 3. The Gaon Sabha Dhabaulia had filed a suit under section 211/167, U.P.Z.A. and L.R. Act against Santey, Mohammad Hanif Khan and Mohammad Rais Khan. The trail court dismissed the suit. Thereafter an appeal was filed by the Gaon Sabha and a cross-objection was filed by Santey. The lower appellant court has dismissed the appeal and has allowed the cross-objection. The Gaon Sabha has not come up in second appeal before this Court. 4. The grounds taken in this appeal are that the lower appellant court is wrong in holding that the alleged ex-parte declaratory decree of 1965 operates as res-judicata to bar the present suit, that it is the transfer of sirdari land which gives a right to the Gaon Sabha to file a suit for ejectment and the question whether the transfer has taken the shape of a sale deed or any analogous transaction concluded in any form on a cash price or other wise has no effect on plaintiffs' right to maintain the present suit, that the question of the legal statue of the transferee is a matter of statue and there in no estoppel against statute, that the evidence on record has not been judged and analysed in a correct perspective and impugned judgments are no judgments in the eyes of law, that the courts below have taken irrelevant and inadmissible evidence and circumstances into consideration, and that the procedure followed was not in accordance with law and has resulted in miscarriage of justice. 5. A perusal of the record shows that an ex parte decree was passed in Suit No. 158 of 1965 in favour of the defendant-respondent Shantey. The trial court held that the ex parte decree cannot operate as res judicata. The learned Additional Commissioner has, however, relying upon the case reported in 1952 R.D., P 259 held that the ex parte decree operates as res judicata. In R.D., 1952. The trial court held that the ex parte decree cannot operate as res judicata. The learned Additional Commissioner has, however, relying upon the case reported in 1952 R.D., P 259 held that the ex parte decree operates as res judicata. In R.D., 1952. P. 269, Bachha v. Badruddin Ahmed, a learned Member of this Court had observed as follows:- "although the zamindari was impleaded as a defendant in the previous suit in which the decree in favour of the respondents was passed, he did not appear and the decree against him was ex parte. An ex parte decree operates as res judicata against the absentee defendant as held by the Board in Ajodhya Prasad v. Ram Asrey and Chhange v. Qadir Baksh. In the circumstances of the present case, therefore, the decree dated May 3, 1947 would operate as res judicata not only against the appellant who had allotted the plaintiff's claim but also against the zamindari who had allowed the suit to be decreed ex parte against him." 6. The learned Additional Commissioner has also relied upon 1968 A.W.R. 12, in which the following observation has been made:- "Ex parte decree so long as that decree stands, is to be honoured and, if possible, given effect to, irrespective of the fact whether the same is correct or not." 7. To my mind, the correct legal position would be that where an ex parte decree is passed against a defendant without due notice being served on him, it cannot be operate as res judicata. Where however, the defendant has been duly served and yet has failed to appear without sufficient cause, the ex parte decree would operate as res judicata. It is not open to a defendant to defect the process of law by his absence. In the suit no. 158 of 1965 the judgment shows that the U.P. State through the Deputy commissioner, Gonda as well as Gaon Sabha Dhabaulia through the Pradhan were defendants Nos. 3 and 4 respectively. They had been duly served and put in appearance, but subsequently absented themselves. Since no efforts were made by them to get the ex parte decree set aside and the suit restored. The ex parte decree would not operate as res judicata against them. 3 and 4 respectively. They had been duly served and put in appearance, but subsequently absented themselves. Since no efforts were made by them to get the ex parte decree set aside and the suit restored. The ex parte decree would not operate as res judicata against them. The contention of the learned District Government Counsel that the ex parte decree of 1965 will not operate as rs judicata in the present suit cannot be upheld. The result of the ex parte decree would be that the defendant-respondent Santey would be held to be the sirdar do the land in suit. It may be observed that the plots in the present suit are all included in the plots given in the earlier suit. 8. The case of the Gaon Sabha is that Santey subsequently transferred is sirdari rights in land is suit in favour of defendant-respondents Mohammad Hanif Khan and Mohammad Rais Khan and also delivered possession to them. The learned District Government Counsel has contended that this transfer was in contravention of the U.P.Z.A. and L.R. Act. If is surprising that the learned Additional Commissioner has not considered this aspect of the question at all. The present suit was not for the declaration of sirdari rights of Santey but under Sections 211/167, U.P.Z.A. and L.R. Act. The learned Additional Commissioner has erred in law in dismissing the suit merely on the ground that the ex parte decree in the suit under Section 229-B U.P.Z.A. and L.R. Act stands and has not been set aside. He has failed to consider whether Santey as a sirdar could legally transfer the land in suit to Mohammad Hanif Khan and Mohammad Rais Khan, and whether the Gaon Sabha could bring the present suit on the ground of a void transfer. The record shows that Santey never acquired bhumidhari rights in the land. Thus if Santey did transfer the land to Mohd. Hanif Kahn and Mohd. Rais Khan, this transfer would be in contravention of law and would made the transferees liable to ejectment. 9. The most important point for determination in the present suit was whether Santey. Defendant-respondent no. 1, has illegally transferred the sirdari land in favour of Mohammad Hanif Khan and Mohammad Rais Khan, defendant-respondents Nos. 2 and 3. It is strange that the trial court has framed no issue on this question. 9. The most important point for determination in the present suit was whether Santey. Defendant-respondent no. 1, has illegally transferred the sirdari land in favour of Mohammad Hanif Khan and Mohammad Rais Khan, defendant-respondents Nos. 2 and 3. It is strange that the trial court has framed no issue on this question. Further, neither the trial court, nor the lower appellate court have even considered this question and have yet dismissed the suit. The contention of the learned District Government Counsel, therefore, that the procedure followed by the courts below was not in accordance with law and has resulted in miscarriage of justice, must be upheld. Their judgments have really concentrated more on irrelevant considerations and cannot be said to be proper judgment in the eyes of law. 10. The result is that I hereby allow the appeal, set aside the orders of the courts below, and remand the case for fresh hearing after framing proper issues in accordance with law.