ORDER K.N. Misra, J. - Dispute in the present writ petition relates to Khata Nos. 148 and 515, which are recorded in the basic year Khatauni in the names of the petitioners Bullarey and Bhauwa. Respondents 3 and 4, namely-Jauhariya and Jaguwa filed objections under S. 9-A(2) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the "Act") claiming that they are co-tenure- holders along with the petitioners. They also claimed to be sole tenure-holders on the basis of possession. Petitioners contested the case and filed written-statements raising several pleas. They also raised a plea regarding estoppel and res judicata with the allegation that the respondents 3 and 4 had filed a suit under S. 229B of the U. P. Act No. 1 of 1951 for declaration that they are co-tenure-holders along with the petitioners in the land in dispute. This suit was dismissed on 11-5-1972 in default of the plaintiffs although certain observations about merit of the case of the plaintiffs were also made in that non-speaking order. Petitioners contended that the said order operates as res judicata and the opp. parties 3 and 4, who were plaintiffs in the aforesaid suit, were stopped from claiming tenancy rights in the land in dispute. Issues Nos. 3 and 4 related to the said pleas. The Consolidation Officer vide order dated 6-10- 1980 held that the suit is not barred by res judicata; nor by the principles of estoppel. The said order was confirmed by the revisional court vide order dated 6-5-8,3. In the order passed by the Dy Director of Consolidation some more relevant facts have been referred. After dismissal of the said suit on 11-5-1972 opp. parties 3 and 4 had filed an application for mutation, which was rejected by the mutation court on 10-4- 1973. Subsequently Opp. parties 3 and 4 filed another suit for declaration under S. 229B of the U. P. Act No. I of 1951 and this suit was permitted to be withdrawn with liberty to file fresh suit on payment of rupees ten as costs to the defendant-petitioners vide order dated 8-4-75. This cost was paid to the petitioners. Thereafter it appears that the village was brought under consolidation operations and the opp. parties Nos. This cost was paid to the petitioners. Thereafter it appears that the village was brought under consolidation operations and the opp. parties Nos. 3 and 4 filed a suit claiming to be co,-tenure-holders in the land in -dispute along with the petitioners and for separation of their one- half share. They also claimed to be sirdar's of the land in dispute on the basis of their possession. Issues were also framed on these pleas whether the opp. parties Nos. 3 and 4 are co-Bhumidhars and whether they are sole Sirdar's of the land in dispute on the basis of possession. Dy. Director of Consolidation quoted the order dated 11-5-72 in extenso, and held that the said suit filed by responders 3 and 4 was decided in default of the petitioners. Plaintiffs were not present on the said date and as such the suit could not be heard and decided on merits and the said order purports to he an order under O. IX R. 8 of the Civil P.C. dismissing the suit in default of plaintiffs. 2. Learned counsel for the petitioners contended that the said order would operate as res judicata because in the said order it has been observed that the plaintiffs have not led any evidence to prove that they are co-tenure-holders while the land in dispute is recorded alone in the names of the defendants. Learned counsel urged that the said finding would operate as res judicata between the parties and the claim of the respondents 3 and 4 regarding co-tenancy as well as sole tenancy rights in the present proceeding should be held to be barred by the principles of res judicata. He, therefore, contended that the said decision would operate as res judicata and estoppel against respondents 3 and 4 in claiming co-tenancy and also in claiming sole-tenancy rights in the land in dispute. I am unable to agree with this contention. 3. In order to apply the provisions of res judicata it is necessary that the claim must have been heard and determined by the Court. None of the points, which were involved in the suit as raised by the parties, were heard and determined on merits after hearing parties in the aforesaid earlier suit which was dismissed by the said order on 11-5-1972. None of the points, which were involved in the suit as raised by the parties, were heard and determined on merits after hearing parties in the aforesaid earlier suit which was dismissed by the said order on 11-5-1972. It is well settled that before an earlier decision can be considered as res judicata the same matter should have been heard and decided earlier between the same parties. 4. In AIR 1969 SC 971 (Shivashankar Prasad Shah v. Baikunth Nath Singh) the same view was reiterated and it was further held that the dismissal for default of the judgrient-debtor of an application filed by him under S. 47, Civil P.C. resisting the execution of the decree is not a final decision of the Court after hearing the parties and therefore does not operate as res judicata and he can raise that objection in a subsequent application filed by him. (Emphasis applied). 5. In view of the above I find that for the application of principles of res judicata it is essential that the plea must have been heard and decided between the parties, by the Court. Learned counsel contended that although plaintiffs had not appeared, but the Court had held that the plaintiffs had not been able to prove their claim regarding co- tenancy rights in the disputed land. Learned counsel urged that this finding would operate as res judicata. It is not disputed that no evidence was led by the parties and by the date when the said order was passed dismissing the suit since the plaintiffs had not appeared, the suit should have been dismissed in default. Simply by one sentence order the claim of the plaintiffs was rejected, although there was no evidence on record to consider the claim of the parties on merits by the concerned court. 6. When the plaintiffs did not appear, the Court had jurisdiction to dismiss the suit in default as is provided under O IX R. 8 of the Civil P.C. The provision of O XVII Rr. 6. When the plaintiffs did not appear, the Court had jurisdiction to dismiss the suit in default as is provided under O IX R. 8 of the Civil P.C. The provision of O XVII Rr. 2 and 3 were not attracted as the case was not covered by the explanation appended to O. XVII R. 2 of the Civil P.C. Thus the order could only be construed to have been passed under O. IX R. 8 of the Code and as it was not a decision on merits after hearing the parties, the order dismissing the suit would be construed to be falling under O. IX R. 8 of the Code and the said decision cannot be said to operate as res judicata. Learned counsel contended that even if the said order dated 11-5-72 dismissing suit of the respondents be construed to be one of dismissal in default falling under O. IX R. 8 of the Code the said order will operate as res judicata in the present proceedings under S. 9A(2) of the Act. In support of his contention he referred to the provisions of O. IX R. 9 of the Code, which provides that where a suit is wholly or partly dismissed under R. 8, the plaintiff hall be precluded from bringing a fresh suit in respect of the same cause of action. I am unable to agree with this contention. 7. In AIR 1923 All 409 (Balkishan v. Raghubar Dayal) the Division Bench of this Court held that O. IX R. 9 of the Code does not preclude the plaintiff, after his suit has been dismissed on one cause of action from bringing another suit upon another cause of action. 8. In AIR 1959 Punjab 252 (Manohar Lal Behari Lal v. Onkar Dass) the Division Bench held that there can be no doubt that an order under O. 9 R. 8 cannot amount to res judicata for the simple reason that the suit cannot be deemed to have been heard and finally decided by means of this order. The only effect of an order passed under O. 9 R. 8 is that fresh suit based on the same cause of action is barred by the provisions of O. 9 R. 9. However, a suit for partition dismissed for default under O. 9 R. 8 does not bar a subsequent suit for partition. The only effect of an order passed under O. 9 R. 8 is that fresh suit based on the same cause of action is barred by the provisions of O. 9 R. 9. However, a suit for partition dismissed for default under O. 9 R. 8 does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right which is a legal incident of joint tenancy and which enures so long as the joint tenancy continues. 9. The Division Bench of this Court in (1906) ILR 28 All 627 (Bisheshar Das v. Ram Prasad) held that the right is a legal incident of the joint tenancy so long as the joint tenancy continues any joint tenant can apply to the court for partition of the joint property. 10. In AIR 1935 Mad. 458 (Thayyan v. Kannikandath Kizhe Purakkal) the Division Bench of Madras High Court observed that where a partition suit is dismissed for default, it does not bar a subsequent suit; the reason is that, even after the dismissal of the former suit, the jointness continues and there is a continuing cause of action. 11. In view of the aforesaid decisions it is well established that in cases of joint tenancy and joint ownership of properties the jointness continues giving a continuing cause of action for claiming share in the property and its partition. The provision of O. IX R. 9 of the Civil P.C. bars a second suit in respect of the same cause of action where the suit is dismissed for default of appearance of the plaintiff. So far as the claim of joint tenancy in the land in dispute and its partition is concerned I find that there remains a continuing cause of action. Apart from it, it has to be considered whether the present objection under S.9- A(2) of the Act would be taken to have been based on the same cause of action as was in' earlier suit. More or less a similar question cropped up for consideration in 1970 All WR (HC) 656 (Sughar Singh v. Dy. Director of Consolidation). Wherein the Hon'ble Judge held that the consequence of the suit dismissed in default is that the person whose suit has been dismissed for default cannot file another suit on the same cause of action. More or less a similar question cropped up for consideration in 1970 All WR (HC) 656 (Sughar Singh v. Dy. Director of Consolidation). Wherein the Hon'ble Judge held that the consequence of the suit dismissed in default is that the person whose suit has been dismissed for default cannot file another suit on the same cause of action. In consolidation proceedings the claim is not made on that cause of action. The cause of action in consolidation proceedings is the entry in the basic year. The ENTRY in the basic year is different from the cause of action on which a suit was instituted previously." (Emphasis applied) 12. In. Allahatala v. Dy. Director of Consolidation (1980 All LJ 57) the Division Bench of this Court on similar set of facts, where the earlier declaratory suit filed in revenue court was dismissed for default of prosecution, held that, "The suit was dismissed for default. Apparently no findings were recorded on the merits. An ex parte decree prevents institution of a fresh suit, on the same cause of action. Proceedings under the Consolidation of Holdings Act are not suits. They are hence not barred. The consolidation courts rightly disposed of the objection on the merits." 13. In the present case the cause of action for an objection under S. 9(2) of the Consolidation of Holdings Act is the entry in the basic year, which has been challenged by the respondents claiming that they are co-tenure-holders and their half share be partitioned and separated and in the alternative also pleaded that they are entitled to be declared as sirdar's on the basis of possession. Thus the present objection cannot be said to be based on the same cause of action of the aforesaid earlier suit. The present objection, therefore, cannot be said to be barred by res judicata or estoppel by the record. 14. The cause of action in consolidation proceedings in respect of objection under S. 9 (2) of the aforesaid Act is the entry in the basic year records published under sub- sec. (1) to that Section; and any person, to whom a notice under sub-sec. (1) has been sent or any other person interested may within twenty-one days of the receipt of the notice or of the publication of sub-sec. (1) to that Section; and any person, to whom a notice under sub-sec. (1) has been sent or any other person interested may within twenty-one days of the receipt of the notice or of the publication of sub-sec. (1), as the case may be, file an objection before the Assistant Consolidation Officer in respect thereof disputing the correctness or the nature of entries in the records or in the extract furnished therefrom, or in the statement of numbers, or the need for partition. 15. Thus, in my opinion, the cause of action for an objection under S. 9 of the Consolidation of Holdings Act is different from the cause of action on which said suit was instituted previously. The dismissal of earlier said suit in default would, therefore, not operate as bar under O. 9 R. 9 C. P. C. to the present objection filed under S. 9 of the U. P. Consolidation of Holdings Act, nor said decision would operate as res judicata or as an estoppel. 16. In this view of the matter I find that the Dy. Director of Consolidation has not committed any error in holding that the objection filed by respondents Nos. 3 and 4 was not barred by res judicata or estoppel. I am further of the opinion that the objection filed by the respondent under S. 9-A(2) of the Act cannot be thrown out on the ground that it was barred under O. IX R. 9 of the Civil P.C. The provisions of Civil P.C. do not apply to the proceedings under the Consolidation of Holdings Act as held by this Court in Mandir Shivaji Maharaj v. Commissioner, 1968 All WR (HC) 549. 17. In 1969 All WR (HC) 482 : ( AIR 1970 All 241 ) (FB) (Bijai Narain Singh v. State of U. P.) the Full Bench of this Court held that the various authorities constituted under the Act can neither he held courts of civil jurisdiction nor governed by the Civil P.C. in the matter of procedure. 18. In view of above, I find no merit in this writ petition, which is accordingly dismissed in limine.