JUDGMENT R.S. Verma, Member - This is a second appeal against the judgement and order of Shir S.K. Dixit, learned Additional Commissioner, Varanasi Division, dated January 4, 1971. 2. On June 21, 1962, Gaon Sabha Darkehu pergana Kaswar Raja district Varanasi filed a suit under Section 212 of the U.P. Z.A. and L.R. Act against Achhaibar Singh and 24 others in respect of plot No. 2135 (area 5.63 acres) on the ground that it was a tank which had vested in the Gaon Sabha and that Achhaibar Singh was its hereditary tenant on the basis of a settlement made by the Zamindar after 8th day of August 1946 and that Achhaibar Singh was liable to be ejected from the land in suit. Achhaibar Singh contested the suit on the ground that he was hereditary tenant of the land in suit from before the date of vesting and became its Sirdar after the abolition of Zamindari; that in an earlier suit under Section 59 of the U.P. Tenancy Act in which Gaon Sabha was also a party he was held to be a hereditary tenant of the land in suit and therefore the Gaon Sabha's case for ejectment under Section 212 of the U.P. Zamindari Abolition and Land Reforms Act was barred by the principle of res judicata. 3. The trial court decreed the plaintiff's suit on October 29, 1966, learned Additional Commissioner allowed the appeal filed by Achhaibar Singh on January 1, 1971, and aggrieved by this order, the Gaon Sabha has filed this second appeal. 4. In this appeal, four points have been raised. Firstly, whether the earlier decree under Section 59 of the U.P. Tenancy Act between the parties will operate as res judicata; secondly whether the land in suit is tank; thirdly whether the appeal abated in the first appellate court on the ground that defendant No. 10 Vishwanath, died without his heirs being substituted in the appeal and fourthly whether this appeal filed by Shir Sankatha Rai, Advocate, on behalf of the Gaon Sabha without a resolution of the Gaon Sabha appointing him as a counsel and without taking permission of the Collector, is maintainable. 5. 5. As far as point No. 4 is concerned, the learned counsel for the respondent has cited 1969 R.D 356 (H.C.) in which it was held that non-compliance of para 128 of the Gaon Samaj Manual renders Written Statement, appeal or revision not maintainable. Para 128 of the Gaon Samaj Manual lays down that the conduct of Gaon Samaj litigation shall not depend upon the individual discretion of the Chairman of the Land Management Committee, but shall be a matter of resolution of the Land Management Committee as a whole. In urgent cases, however, the Chairman can take action on his own and seek ratification of the Land Management Committee afterwards, by including it in the agenda of the next ensuing meeting. On the record of this case, there is resolution of the Gaon Sabha-Exh. I dated February 2, 1963 in which on September 22, 1962 a resolution had been passed by the Land Management Committee to file a suit in respect of plot no. 2135/1 and one another plot. As the suit was filed on June 21, 1962 and the resolution was passed on September 22, 1962, it was sufficient compliance of para 128 of the Gaon Samaj Manual. Therefore, the ruling reported at page 356 of R.D. 1969 does not apply. The learned Judge, Shri D.S. Mathur, referred to 1965 R.D. page 349, in which Mr. Justice S.N. Singh had held that paragraph 131 of the Gaon Sabha Samaj Manual was not mandatory and the learned Judge, Mr. D.S. Mathur, did not disagree with the view expressed by Mr. Justice S.N. Singh. Thus, the ruling cited by the learned counsel for the respondent does not help him. In 1965 R.D. page 349 (H.C.) Mr. Justice S.N. Singh had held that para 131 of the Gaon Samaj Manual (about the appointment of lawyers to represent Land Management Committee) is only a direction given by the State Government to the Land Management Committee and has not the force of statutory law. Non-compliance of it cannot be considered to be fatal to the presentation of a writ petition or the appointment of a private counsel for the conduct of a litigation on behalf of the Land Management Committee. Non-compliance of it cannot be considered to be fatal to the presentation of a writ petition or the appointment of a private counsel for the conduct of a litigation on behalf of the Land Management Committee. The High Court will not go into this question when there is no legal prohibition of the Act or the Rules made in this respect for engaging a private counsel for the conduct of a litigation on behalf of the Gaon Sabha so far as the High Court is concerned. This ruling applies with full force in this case and the appeal filed by Shri Sanakatha Rai, Advocate, on behalf of the Gaon Sabha is a competent one and there is no illegality in such presentation of this appeal by a private counsel. Section 341 of the U.P. Zamindari Abolition and Land Reforms Act has made the provisions of Code of Civil Procedure applicable to the proceedings instituted under the U.P. Zamindari Abolition and Land Reforms Act. Order III Rules land 2 C.P.C. authorises the engagement of recoginzed agent on behalf of a party on this ground also, the Goan Sabha cannot be precluded from enagaging a private counsel to fight its cases. Apart from this, there is a resolution of the Gaon Sabha dated August 1, 1978 authorising Shri Sankatha Rai, Advocate, to appear and do Parivi on behalf of the Gaon Sabha. Taking into consideration all these facts, I hold that the appeal filed by a private counsel, Shri Sankatha Rai, Advocate, is maintainable. 6. Then, I take the third point, which has been pressed by the learned counsel for the appellant that defendant No. 10, Vishwanath, died during the pendency of the first appeal in the court of the learned Additional Commissioner and that his legal heirs were not brought on the record with the result that the appeal abated. This point was faintly argued and it is apparent that in views of recent amendment in Order XXII Code of Civil Procedure, there is no force in this submission because Vishwanath was not a contesting party in the suit or in the appeal ant it was not necessary at all to bring his heirs on the record. The appeal in the court of the learned Additional Commissioner did not abated because of non-implement of the heirs of Vishwanatha, defendant. 7. Now, the first point, which is the main point, is taken. The appeal in the court of the learned Additional Commissioner did not abated because of non-implement of the heirs of Vishwanatha, defendant. 7. Now, the first point, which is the main point, is taken. The question is whether the earlier decree passed in the case under Section 59 of the U.P. Tenancy Act will operate as res judicata between the parties. In the earlier suit under Section 59 of the U.P. Tenancy Act, the Gaon Sabha was a party and it was held that Achhaibar Singh defendant, was a hereditary tenant of the land in suit. As the time of arguments, the learned counsel for the appellant as well as the learned counsel for the respondent agreed that as far as the question of the right of the defendant No. 1, Achhaibar Singh, about his being hereditary tenant of the land in suit, is concerned it is acceptable to them. Therefore, the decision that Achhaibar Singh became hereditary tenant of the land in suit, is binding on the parties and will operate as res judicata. But, it does not mean that the suit will also be barred by res judicata. This suit has been filed under Section 212 of the U.P. Zamindari Abolition and Land Reforms Act which lays down that 'Any person who, on or after either day of August, 1946, has been admitted as tenure or grove-holder or being an intermediary has brought under his own cultivation or has planted a grove upon land which was recorded as or was customary common pasture land, cremation or burial ground, tank, pond pathway, or Khalian, shall be liable notwithstanding anything contained in Section 199, on the suit of the Gaon Sabha to ejectment from the land, on payment of suit compensation as may be prescribed.' It is not in dispute between the parties that Achhaibar Singh was admitted as a tenure-holder after August 8, 1946. No doubt, he was declared as a hereditary tenant of the land in suit, but that only means that he was declaration as a tenure-holder of the plot in suit. Section 212 of the U.P. Zamindari Abolition and Land Reforms Act applies to such tenure-holders who have been admitted to tenure by the Zamindar on or after August 8, 1946. No doubt, he was declared as a hereditary tenant of the land in suit, but that only means that he was declaration as a tenure-holder of the plot in suit. Section 212 of the U.P. Zamindari Abolition and Land Reforms Act applies to such tenure-holders who have been admitted to tenure by the Zamindar on or after August 8, 1946. Therefore, in spite of the earlier decree holding Acchaibar Singh as hereditary tenant of the land in suit, Acchaibar Singh is liable to ejectment on the suit of the Gaon Sabha under Section 212 of the U.P. Zamindari Abolition and Land Reforms Act because he had been admitted to this land after August 8, 1946. Section 11 of the C.P.C. will not a bar in this case. This point has been argued by the learned counsel for the respondent in another way. He argued that according to Section 30 of U.P. Tenancy Act, hereditary rights shall not accrue in land covered by water and used for the purpose of growing Singhara or other produce and, therefore, if in the earlier suit under Section 69 of the U.P. Tenancy Act it was held by the courts that the defendant, Acchaibar Singh, was hereditary tenant of the land in suit it means that the courts also held that the land was not covered by water and was not used for the purpose of growing Singhara. The learned counsel for the respondent has argued that the earlier decision in the suit under Section 59 of the U.P. Tenancy Act will operate as res judicata because the Gaon Sabha had not taken the plea that the land in suit was a tank. The learned counsel for the respondent has cited 1973 A.I.R. Alld. 283 in which it was held that res judicata is attracted even where party did not either enter appearance or confer the issue subject to the qualification that the party must have had or be deemed to have had, notice of the said question in the previous suit. Burden of proving such notice is on the person pleading res judicata. There is no dispute regarding the law point enunciated by the learned High Court. In the case under Section 59 of U.P. Tenancy Act no finding was given on the point whether the land in suit was a tank or was not a tank. Burden of proving such notice is on the person pleading res judicata. There is no dispute regarding the law point enunciated by the learned High Court. In the case under Section 59 of U.P. Tenancy Act no finding was given on the point whether the land in suit was a tank or was not a tank. The Khasra extracts of 1334, 1356, 1363, 1366 and 1367 Faslis showed that the land in suit was recorded as a tank and that there was no crop grow on it. So, in the case under Section 59 of U.P. Tenancy Act, there is no issue regarding the nature of the plot in suit and the Gaon Sabha was not called upon to admit or deny whether the land in suit was a tank or not. The village papers recorded the land in suit as a tank. The Gaon Sabha had no objection of Achhaibar Singh was declared as a hereditary tenant of the land in suit because in that case the Gaon Sabha had an option to bring a suit under Section 212 of the U.P. Zamindari Abolition and Land Reforms Act for the ejectment of Achhaibar Singh, defendant. In these circumstances, Achhaibar Singh and Gaon Sabha were not at issue regarding the nature of the land in suit i.e., whether it was a tank or not. No issue was framed and such a question was not decided by the courts in the case under Section 59 of the U.P. Tenancy Act. Therefore, the judgement and decree of the revenue courts under Section 59 of the U.P. Tenancy Act will not operate as res judicata in this suit because there was no decision that the land in suit was not a tank. Section 212 of the U.P. Zamindari Abolition and Land Reforms Act was enacted to meet such situation where the Zamindar collusively settles land to other persons after August 8, 1946, the day on which a Bill for abolition of Zamindari was brought in the legislature. Then, the learned counsel for the respondent cited 1978 R.D. 210, in which the Hon'ble Supreme Court held that if the land was recorded as customary pasture land or if it was customary common pasture land, then Section 212 of the U.P. Z.A and L.R Act will apply. Then, the learned counsel for the respondent cited 1978 R.D. 210, in which the Hon'ble Supreme Court held that if the land was recorded as customary pasture land or if it was customary common pasture land, then Section 212 of the U.P. Z.A and L.R Act will apply. In that case, the question to be determined was whether the land in suit in that case was a customary pasture land or was recorded as customary pasture land. In that case, the question of the land being covered by water etc. was not involved and the Hon'ble Supreme Court did not give ruling on this point. Therefore, the ruling does not at all apply to the circumstances of this case. 8. The suit under Section 59 of the U.P. Tenancy Act filed earlier was bound to continue in view of the Land Tenure Legal Proceedings (Removal of Difficulties) Order. In that earlier suit under Section 59 of the U.P. Tenancy Act, the Gaon Sabha had no reason to seek ejectment of the defendant, Acchaibar Singh, because such a suit had to be brought under Section 212 of the U.P. Zamindari Abolition and Land Reforms Act. Therefore, the Gaon Sabha was not required to contest the tenancy rights of Achhaibar Singh because even if such a right was granted to him he was liable to ejection at the suit of the Gaon Sabha under Section 212 of the U.P. Zamindari Abolition and Land Reforms Act. 9. From whichever angle we look into the earlier suit under Section 59 of the U.P. Tenancy Act declaring Achhaibar Singh as hereditary tenant of the land in suit will not operate as res judicata as far as suit for ejectment u/S. 212 Z.A. Act is concerned because admittedly he was admitted to tenure after August 8, 1947 and Section 212 is applicable to such a case. 10. Now remains the question whether the land in suit is tank. The Khasra extracts of 1334, 1356, 1366 and 1367 Fs. show that the disputed plot has been recorded as a tank that no crop has been shown to have been grown on this plot. There is no reason to disbelieve the entries in the Khasras. 10. Now remains the question whether the land in suit is tank. The Khasra extracts of 1334, 1356, 1366 and 1367 Fs. show that the disputed plot has been recorded as a tank that no crop has been shown to have been grown on this plot. There is no reason to disbelieve the entries in the Khasras. The disputed plot was recorded as a tank and Section 212 of the U.P. Zamindari Abolition and Land Reforms Act is applicable whenever a person has got tenancy rights after August 8, 1946 on land which is a recorded tank. 11. The result is that defendant No. 1, Acchaibar Singh, is liable to be ejected under Section 212 of the U.P. Zamindari Abolition and Land Reforms Act and I, therefore, allow this appeal, set aside the judgement and order of the learned Additional Commissioner and maintain the Judgement of the trial Court.