ORDER K.N. Misra, J. - Heard the learned counsel for the petitioner and perused the impugned orders passed by opposite-parties Nos. 1 to 3 and also the averments contained in the writ petition. 2. The dispute in the present case relates to Khata No. 291, which was recorded in the name of the petitioner in the basic year Khatauni. Respondent No. 4 Badali filed an objection under S. 9 of the U.P. Consolidation of Holdings Act, claiming to be co-tenure-holder along with the petitioner having one-half share in the land in dispute on the ground that it is ancestral land coming down from the common ancestor of the parties. It was also asserted that in earlier decision between the parties, Respondent No. 4 was held to be co- tenure-holder along with the petitioner by this Court in a second appeal arising out of a suit for injunction filed by the petitioner. The said judgment. according to the Respondent No. 4, would operate as res judicata between the parties. 3. Petitioner contested the claim of the Respondent No. 4 pleading that he is not the son of Data Deen, but he is son of Ram Adhin, who does not belong to the family of the petitioner. It was also pleaded that the decision of the previous case does not operate as res judicata and in the alternative a plea was taken that the petitioner has acquired exclusive Sirdari rights by ouster and adverse possession as against the Respondent No. 4. 4. The said objection was allowed by the Consolidation Officer by his judgment and order dated 28-5-1976 holding Respondent No. 4 Badali to be co-tenure-holder in the land in dispute along with the petitioner having half share in it. It was further held that he is son of Data Deen and the judgment in the earlier litigation operates as res judicata. 5. Aggrieved by that order, petitioner preferred an appeal, which was dismissed on 16-11-76 and the revision filed against the said order was also dismissed by the Deputy Director (Consolidation) vide order dated 8-7-1977. 6. Petitioner had preferred writ petition in this Court (Civil Miscellaneous Writ Petition No. 1287 of 1977), which was allowed vide order dated 5-3-1980 and the case was remanded to the Deputy Director (Consolidation) for a fresh decision according to law after giving opportunity of hearing to the parties. 6. Petitioner had preferred writ petition in this Court (Civil Miscellaneous Writ Petition No. 1287 of 1977), which was allowed vide order dated 5-3-1980 and the case was remanded to the Deputy Director (Consolidation) for a fresh decision according to law after giving opportunity of hearing to the parties. After remand both the parties led evidence and the Deputy Director (Consolidation) after hearing the parties dismissed the revision on merits vide judgment and "order dated 22-7-1983. The petitioner has challenged the impugned order passed by the Opposite-party No. 1 dated 22-7-1983. 7. The learned counsel for the petitioner Sri Radhey Shyam, Advocate, strenuously urged that the decree passed in earlier suit has been wrongly read in evidence. He urged that since the decree passed in second appeal, dismissing the suit of the petitioner by this Court, was an ex parte decree and as such it does not operate as res judicata between the parties. He further contended that since it was not established that the petitioner was sufficiently, served in the second appeal, as such in the absence of that evidence, the ex parte order could not operate as res judicata between the parties and in support of his contention he placed reliance on a decision of this Court reported in 1982 All WC 862, Brij Lal v. Deputy Director of Consolidation, Lucknow Camp at Lucknow, wherein it was held that for an ex parte decree to operate as res judicata between the parties it must be established that in the suit the defendants were served with the notice and in spite of service they did not appear to contest the case. He also referred to a Division Bench decision reported in 1982 All WC 638 : AIR 1983 All 45 Smt. Kanti Khare v. Kali Prasad Asthana wherein it was held that where a party, who had no opportunity of litigating an issue, the judgment given in the proceedings cannot operate as res judicata against him. There is no dispute to the proposition of law laid down in the aforesaid decisions. But the facts in the present case are slightly different. Petitioner had himself filed a suit for injunction against the respondent No. 4 asserting that he is the sole tenure-holder of the land in dispute and that the respondent No. 4 is not a co-tenure-holder along with him nor he is in possession. But the facts in the present case are slightly different. Petitioner had himself filed a suit for injunction against the respondent No. 4 asserting that he is the sole tenure-holder of the land in dispute and that the respondent No. 4 is not a co-tenure-holder along with him nor he is in possession. A prayer for injunction restraining the respondent from interfering in the possession of the petitioner was sought for in the suit. The suit was dismissed, by the trial court. Petitioner had preferred an appeal, which was, however, allowed and the suit was decreed. Aggrieved by that decision, respondent. No. 4 had preferred in this Court Second Appeal No. 848 of 1957 Badali v. Nathai. I have summoned the record of this second appeal, which was heard and allowed by this Court vide judgment and decree dated 25th October, 1962, and the decree passed by the trial court was restored. It was revealed from the file that Respondents Nos. 1 and 3, namely - Nathai and Surajdin were personally served with the notices. Nathai is petitioner 4n the present writ petition. Petitioner was, therefore, personally served in the second appeal and as such he had opportunity of putting appearance and contesting the appeal on merits, which he had not done in spite of service of notice. The said decree dated 25th October, 1962, passed by this Court in Second Appeal No. 848 of 1957, would therefore, operate as res judicata between the parties. It is well settled that for an ex parte decree to operate as res judicata between the parties it is to be established that the defendants in the suit were served, which was decided against them. The doctrine of res judicata will then apply. Ex parte decree will operate as res judicata if a party, in spite of service of notice on him did not put in his appearance to contest the suit or appeal, as the case may be. Since, after perusal of the record of second appeal, referred to above. I find that respondent No. 1 (in second appeal i.e. Nathai-petitioner in the writ petition) was personally served with the notice. I, therefore, find no substance in the argument of the learned counsel for the petitioner that the said ex parte decree would not operate as res judicata. Thus the findings recorded by opp. parties Nos. I find that respondent No. 1 (in second appeal i.e. Nathai-petitioner in the writ petition) was personally served with the notice. I, therefore, find no substance in the argument of the learned counsel for the petitioner that the said ex parte decree would not operate as res judicata. Thus the findings recorded by opp. parties Nos. 1 to 3 on the aforesaid point do not suffer from any error of fact, law or jurisdiction. 8. The learned counsel for the petitioner next contended that the petitioner in this case has perfected right by adverse possession. His contention was that since he is in exclusive possession over the land in question since prior to abolition of Zamindari and as such he has perfected right by adverse possession. Learned counsel urged that in the aforesaid suit petitioner had asserted that he is the sole owner of the land in dispute and is in exclusive possession thereof. Referring to the pleading of that suit, he urged that it would thus, amount to setting up a definite case of ouster of the respondent No. 4 from the land in dispute and as such opposite-parties No. 1 to 3 have erred in not holding the petitioner to have matured title by adverse possession. I am unable to agree with this contention. 9. On a perusal of the judgment dated 25th October, 1962 passed by this Court in the aforesaid second appeal it is clear that this question was considered and it was held that "There is thus no dispute that these plots constitute ancestral property. There is no finding that any partition took place in the family, though the evidence appears to show that the branches were separately cultivating separate portions of the plots. In the absence, however, of any partition between the parties, the position of the parties was that of co-sharers in respect of the plots in suit." "It is well settled that possession of one co-sharer is possession of other and cannot be said to be exclusive possession of one and ouster following thereon for the said purpose. The trial court came to the conclusion that the evidence negatived the theory of ouster of the defendant. The appellate court has not recorded any finding to the contrary. The trial court came to the conclusion that the evidence negatived the theory of ouster of the defendant. The appellate court has not recorded any finding to the contrary. All that the appellate court has found is that the defendant has not been in possession for about twelve years and that, therefore, the rights of the defendant have been destroyed. I am unable to agree with the view taken by the courts below. The appellant, no doubt, set-up the plea that there had been partition under which the plots have been allotted, to him. The plea was negatived by the appellate court, whereas the appellate court has said nothing about partition. Even assuming that there had been no partition, the plaintiffs possession as co-sharer cannot be doubted. Therefore, there was no question of destruction of possession. In my opinion the view taken by the trial court was correct. "Thus, it is clear that this court in the aforesaid decision rendered in second appeal held the respondent No. 4 to be co- sharer (co-tenure-holder) in the land in dispute and the plea of ouster and perfection of rights by adverse possession was not proved. 10. It is next to be seen whether the petitioner has perfected rights by adverse possession after the decision of the second appeal, i.e., Second Appeal No. 848 of 1957. Learned counsel contended that the possession of the petitioner should be taken into consideration even as prior to the date of decision of Second Appeal No. 848 of 1957, i.e. 25th October, 1962, so as to give him right by adverse possession over the land in dispute. I am unable to agree with this contention. 11. This court, vide judgment and decree dated 25th October, 1962, held the petitioner and the respondent No. 4 to be co-tenure-holders in the disputed holding. The rights of the respondent No. 4. therefore, cannot be destroyed by any possession prior to said decree dated 25th October, 1962. It was held that possession of one co-sharer was possession of all the other co-sharers and as such, even if the petitioner was taken to be in possession prior to 5th October, 1962, it cannot be deemed to be an adverse and hostile possession. therefore, cannot be destroyed by any possession prior to said decree dated 25th October, 1962. It was held that possession of one co-sharer was possession of all the other co-sharers and as such, even if the petitioner was taken to be in possession prior to 5th October, 1962, it cannot be deemed to be an adverse and hostile possession. A definite finding was recorded to the effect that the trial court came to the conclusion that the evidence negatived the claim of ouster and on this finding it was held that the rights of defendant were not destroyed in the land in dispute for acquiring rights by adverse possession. 12. It is well settled that for acquiring rights by adverse possession against a co-tenant, the limitation would be twelve years and not six years as no suit for possession would be maintainable under Section 209 of the U.P. Zamindari Abolition & Land Reforms Act against a co-tenant (See Brij Lal's case 1982 All WC 862) (supra). It is not disputed that twelve years' period had not expired prior to the notification under S. 4(2) of the U.P. Consolidation of Holdings Act, from which date the limitation ceased to run. I am, therefore, unable to agree with the contention of the learned counsel for the petitioner that the petitioner has acquired rights by adverse possession. 13. Learned counsel for the petitioner referring to Full Bench decision. reported in AIR 1957 Trav. Co. 32 Padmanahha Pillai Aiyyappan Pillai v. Velayudhan Pillai Sivarama Pillai, urged that a decree merely declaring the plaintiffs title to the property involved in the suit will not interrupt the defendant's adverse possession over that property and if such possession is allowed to continue undisturbed for a period of 12 years or more from the commencement of such possession, the defendant will acquire a title by prescription. The original cause of action for a suit to recover possession of the property will arise on the date of the commencement of the defendant's adverse possession, and not from the date of the decree declaring the plaintiffs, title as against the defendant. 14. He also referred to a decision of Orissa High Court reported in AIR 1969 Orissa 54 Sri Damodar Jew Thakur v. Hema Narayan Misra wherein it was held. 14. He also referred to a decision of Orissa High Court reported in AIR 1969 Orissa 54 Sri Damodar Jew Thakur v. Hema Narayan Misra wherein it was held. "that mere decree for declaration of title and recovery of possession without any step being taken to get back possession would not interrupt the running of time. It stands, on the same footing as a mere declaratory decree. If, however, the decree for recovery of possession is followed by actual seizure of the property either in execution or by amicable arrangement or compromise, then a break in the running of time comes into operation from the date of the seizure." It was further held that : "Where the decree was not followed by execution for recovery of joint possession and the plaintiffs case that he got amicable possession was found against him concurrently by the courts below the suit was barred by adverse possession." 15. Referring to these decisions learned counsel urged that by the dismissal of the suit of the petitioner, the period of limitation would not stop running. He contended that defendant had not filed the suit for partition and joint possession in respect of the land in dispute within twelve years from the date of cause of action, which according to him, will necessarily be atleast the date of filing of the suit by the plaintiff. The consolidation authorities should have held the plaintiff to have acquired rights by adverse possession as he had been in exclusive possession over the land in dispute for more than twelve years from the date of filing of the suit in civil court, which was filed in the year 1955. I am unable to agree with this contention. 16. It is no doubt correct to say that a mere decree for declaration of title and recovery of possession without any attempt being made to get possession by executing the decree within limitation would operate to extinguish all rights and title of the decree-holder under the decree because after expiry of the period of limitation for execution of the decree it will become it dead letter and unenforceable in law. The judgment-debtor would acquire Sirdari rights under S. 210 of the U.P. Zamindari Abolition & Land Reforms Act if the decree for declaration or ejectment passed under S. 229-B/209 of the said Act is not executed, within the prescribed limitation. The judgment-debtor would acquire Sirdari rights under S. 210 of the U.P. Zamindari Abolition & Land Reforms Act if the decree for declaration or ejectment passed under S. 229-B/209 of the said Act is not executed, within the prescribed limitation. If, however, the decree for recovery of possession is in any manner followed by actual getting of possession either by amicable settlement or compromise outside court and the decree-holder gets possession over the property in suit without even putting the decree in execution then the provision of S. 210 of the Act would not be attracted and the decree-holder would not lose his rights merely because a formal application for execution was not filed in court. 17. A declaratory decree simpliciter, however, stands on a different footing which can only he passed in favour of the plaintiff he holds subsisting title and actual or constructive possession over the property in suit on the date of decree and not otherwise. In Chinnammal v. Varadarajula, 1892 ILR 15 Mad 307, while considering provisions of Section 42 of the Specific Relief Act (Now Section 34), it was observed :- "If the plaintiff being able to seek `further relief' than a mere declaration of title omits to do so, the court is precluded from making a declaration of title." In Nawab Humayun Begum v. Nawab Shah Mohmmad Khan, AIR 1943 PC 94 , their Lordships of the Privy Council, while construing the Proviso to S. 42 of Specific Relief Act, held that the `other relief mentioned in the Proviso must be other relief against the defendant himself against whom the declaration was sought. 18. In Mohd. Aftabuddin Khan v. Smt. Chandan Balasini, AIR 1977 Orissa, 69 before the Division Bench of Orissa High Court, an argument was advanced before their Lordships whether a suit merely for a declaratory relief will be maintainable or not, where the plaintiff in the plaint asserted to be in possession but it was disputed by the defendant and as a fact it was found that the plaintiff was not in possession. It was held (at P.75): "It is true that the plaintiffs had alleged that they were still in possession notwithstanding the alienation. The court, however, found that plaintiffs were not in possession. Undoubtedly, plaintiffs were obliged to ask for recovery of possession in order to have an effective decree. Mr. It was held (at P.75): "It is true that the plaintiffs had alleged that they were still in possession notwithstanding the alienation. The court, however, found that plaintiffs were not in possession. Undoubtedly, plaintiffs were obliged to ask for recovery of possession in order to have an effective decree. Mr. Mahapatra's contention that the bar of Section 34 of the Specific Relief Act would not arise where in the plaint there is assertion that possession is with plaintiffs though as a fact it is not, does not appeal to us as a sound proposition in law." In Ram Saran v. Smt. Ganga Devi, AIR 1972 SC 2685 their Lordships of the Supreme Court held (Para 4) : "We are in agreement with the High Court that the suit is barred by Section 42 of the Specific Relief Act. As found by the fact finding courts, Ganga Devi is in possession of some of the properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances it is not necessary to go into the other contention that the suit is barred by limitation." 19. It by now appears to be well settled that merely a declaratory decree cannot be passed by a court where plaintiff is neither in actual nor in constructive possession over the property in suit and the defendant is in hostile and adverse possession against whom plaintiff would be bound to claim further relief for possession in the suit. Even where the plaintiff has made assertions in the plaint that he is in possession but if on its denial by the defendant it is found that the plaintiff is not in possession, the suit for mere declaration would not be maintainable and no declaratory decree can be passed in favour of the plaintiff and the court would be bound to dismiss the suit in view of proviso to S. 34 of the Specific Relief Act. Thus, in this view of the matter, I find it difficult to conceive that a declaratory decree may come into existence merely declaring plaintiffs right to the property involved in the suit although the defendant. as a matter of fact, he found to be in hostile and adverse possession over the property in suit. Thus, in this view of the matter, I find it difficult to conceive that a declaratory decree may come into existence merely declaring plaintiffs right to the property involved in the suit although the defendant. as a matter of fact, he found to be in hostile and adverse possession over the property in suit. The plaintiff would be entitled to a declaratory relief if there was no necessity for any other consequential or ancillary relief or that the plaintiff was incompetent to ask for any consequential relief in the suit against the defendant or that it was not at all necessary for him to do so. In a suit where the plaintiff asserts in plaint to be tenure-holder owner and in possession over the property in suit and prays for a decree for declaration simpliciter of his title to the property involved in the suit and the defendant although denies plaintiffs' title yet omits to dispute plaintiffs possession over the property in suit, and it declaratory decree is passed by court in plaintiffs favour then the decree passed would, in my opinion, amount to a declaration of plaintiffs subsisting title and possession over the property in suit on the date of decree, because the defendant could and ought to have raised the said plea in the suit which, if successfully proved, would have entailed dismissal of plaintiffs suit being not maintainable. Having omitted to do so the defendant, in my opinion, cannot urge in a subsequent suit brought by the plaintiff for the defendant's ejectment that the plaintiff was not in possession during pendency of the suit and also on the date of declaratory decree in earlier suit and that he has perfected rights by prescription on the basis of his alleged adverse possession prior to date of said decree. In my opinion if such a plea is raised by the defendant in subsequent suit it would be barred by the principles of res judicata in view of Explanation IV, to Section 11 of the Civil PC because the defendant might and ought to have raised said plea in earlier suit and having failed to do so, the declaratory decree in earlier suit would amount to a declaration of plaintiffs subsisting title and possession on the date of passing of said decree. I, therefore, find it difficult to accept the contention of the learned counsel for the petitioner, based on Padmanabha Pillai's case, AIR 1957 Trav. Co. 32 (FB) (supra) that a declaratory decree in earlier suit would not interrupt the defendant's adverse possession over the property in suit. The said cited decision does not lend any support to the learned counsel's aforesaid argument. It is a decision on facts of that case, which will be referred to hereinafter. 20. Padamanabhas Pillai's case, AIR 1957 Trav. Co. 32 (FB) was a decision on a different set of facts. In that suit one Thanu Pillai who was owner of the property, had executed gift deed dated 11-9-1901 in favour of 1st plaintiff. He died on 3-2-1902. Thereafter 1st defendant and some other members of Thanu Pillai's family filed suit for cancellation of gift deed. It was held in that suit that the properties covered by this gift deed belonged to Thanu Pillai exclusively, and the donees got a valid title to the properties covered by gift deed. The plaintiffs in that suit had asserted that they were in possession over the property in question and that possession did not pass the donee. The trial court had dismissed the suit on 20-12-1907 recording the said finding that the gift deed was valid and the defendants acquired title under the said deed. The decree of the trial court dismissing suit was confirmed by the High Court in appeal on 11-3-1912. Subsequently first plaintiffs (donees) had transferred the property to 2nd plaintiff and this second suit, from which the second appeal arose in which judgment under reference was rendered was filed-on 7-2-1918 by the plaintiffs. It is relevant to notice that this position was not controverted by the plaintiffs in the present suit that possession remained with the defendants who were in possession even during aforesaid first suit filed by them, which was dismissed. Defendants in this second suit took tip a plea that they had acquired title by adverse possession and they urged that their possession during first suit, although it was dismissed holding gift deed to be valid would be taken into account while calculating continuous twelve years possession of the defendants over the property in suit. Defendants in this second suit took tip a plea that they had acquired title by adverse possession and they urged that their possession during first suit, although it was dismissed holding gift deed to be valid would be taken into account while calculating continuous twelve years possession of the defendants over the property in suit. From the side of the plaintiffs it was contended that though the suit was instituted more than twelve years after the date of gift yet the decision in the previous litigation amounted to a declaration of first plaintiffs' title and that the decree constituted an effective interruption to the possession of the defendants who were plaintiffs in earlier suit. Trial court decreed the suit but the High Court allowed the appeal and the suit was dismissed. It was held by the High Court that the judgment of court declaring that a party in possession of the immovable property has no title to it, has no effect of interrupting the continuity of his possession as against the real owner. 21. The said proposition of law laid down in the aforesaid decision on the facts of that case cannot be disputed. 22. It appears to be well settled that a decree declaring that the party in possession had no title could not interrupt with the continuity of his possession and that such a decree did not give a fresh starting point of limitation. But where plaintiffs suit for declaration is decreed the decree would amount to a declaration of plaintiffs subsisting title and possession on the date of decree because if plaintiff was not in possession the suit could not be decreed for declaration and deserved to be dismissed being barred under S. 34 of the Specific Relief Act. The defendant in subsequent suit, therefore, cannot successfully urge, that the plaintiff has also got to prove in subsequent suit that he was in possession over the property in suit on the date of decree, of earlier suit as well. The defendant in subsequent suit, therefore, cannot successfully urge, that the plaintiff has also got to prove in subsequent suit that he was in possession over the property in suit on the date of decree, of earlier suit as well. Thus, in my opinion, where a declaratory decree has been passed in favour of plaintiff in his earlier suit, the plaintiff cannot be non-suited by the defendant by urging that he had been in possession even during pendency and even on the date of declaratory decree passed in favour of the plaintiff and that he has thus acquired rights by adverse possession on the strength of his alleged possession over the property in suit during pendency of the earlier suit. No such plea would be entertainable being barred as aforesaid. 23. In the instant case the petitioner had filed suit for injunction against defendant No. 4 with the allegation that he was the sole tenure-holder and in exclusive possession over the plots in dispute. The case of the defendant (respondent No. 4) was that he was the co-tenure-holder along with the plaintiff in the disputed holding and he was in possession thereof. The trial court dismissed the suit holding that the plaintiff was not the sole tenure-holder, nor he was in exclusive possession over the land in dispute. The first appellate court had decreed the suit. This judgment of the first appellate court was set aside by this court in Second Appeal No. 848 of 1957 with the findings already referred to above. The claim of the plaintiff that he is the sole tenure-holder was rejected and it was held that the plaintiff as well as the defendant (respondent No. 4) were co-tenure-holders. It was further held by this Court in that suit that the plaintiff had not acquired rights by adverse possession because possession of one co-tenure-holder was possession of other-co-tenure-holders and that no case of ouster had been established. In this view of the matter the petitioner cannot successfully urge that his possession should be deemed to be adverse from the date of the filing of the suit by him in the year 1952. By decree dated 25th October, 1962, the petitioner and respondent No. 4 were held to be co-tenure-holders. In this view of the matter the petitioner cannot successfully urge that his possession should be deemed to be adverse from the date of the filing of the suit by him in the year 1952. By decree dated 25th October, 1962, the petitioner and respondent No. 4 were held to be co-tenure-holders. A finding has been recorded by the Deputy Director (Consolidation) in the present case that the petitioner has not been able to establish that he is in exclusive possession over the land in dispute. Khasra entries in the name of the petitioner were also considered by the Deputy Director of Consolidation and it was held that since petitioner's name alone was recorded as tenure-holder, which entry cannot be taken to be correct as the respondent No. 4 is also a co-tenure-holder, and, as such, the petitioner cannot be held to be in exclusive possession of the land in dispute on the basis of such entries. It was observed that both the parties led oral evidence and contested the case and from the evidence it cannot be held that Badali was forcibly ejected from the land in dispute by the petitioner. Nathai beyond the period - of twelve years so as to give rights of adverse possession. I do not find any error of fact, law or jurisdiction in these findings so as to call for interference by this Court in exercise of powers under Article 226 of the Constitution of India. 24. In the result, the writ petition, being devoid of merits, fails and is accordingly, dismissed in limine.