JUDGMENT B.L. Yadav, J. - The present petition Under Article 226 of the Constitution of India is directed against the orders dated 28-9-1974 and 26-11-1973 passed in the proceedings u/s 9A(2) of the U.P. Consolidation of Holdings Act (for short the Act). 2. Put very shortly the essential facts are these. The Petitioner was recorded as Bhumidhar over plots contained in Khata No. 27 in the basic year and as sirdar along with Amla Singh and Parman and over the plots in khata No. 216. The Respondent Nos. 4 and 5 (for short the contesting Respondents) filed an objection u/s 9A(2) of the Act alleging that Jamuna Singh, the Petitioner, has died, in any case, he was not heard of for more than seven years by those who would have naturally heard of him. He has met his civil death. His name may be expunged and the names of the contesting Respondents may be entered in revenue papers as Sirdars/Bhumidhars. 3. On behalf of the Petitioner his Mukhtar-e-Aam, Sudarshan Singh, filed an objection in reply to that of the contesting Respondents alleging that the Petitioner had gone to pilgrimage and was alive. He did not meet his civil death. The claim of the contesting Respondents was barred by the principles of resjudicata. The objections of the contesting Respondents were liable to be dismissed. 4. The Consolidation Officer by his order dated 31-5-1973 decided the case in favour of the Petitioner and the same order was maintained partly in appeal by the contesting Respondents, while the revision filed by them has been allowed by the impugned order dated 28-9-1974 and the Petitioner's revision has been dismissed. 5. Sri R.S. Misra, appearing for the Petitioner, urged that the Petitioner That met his civil death rather he was alive and in an earlier Civil Suit No. those nfio-minar controversy arose which came to this Court in Second Appeal 32. That 1955 Jamuna Singh v. Amla Singh, which was allowed that the labium 1986 by Hon'ble S. N. Katju, J. vide his judgment dated 4-8-1966 (Annexure 1' to the writ petition) and it was held that even though in the revenue papers the Petitioner was recorded as Farar but that would not indicate that he was absent or has met his civil death. That judgment became final. The claim of the contesting Respondents was barred by res-judicata. That judgment became final. The claim of the contesting Respondents was barred by res-judicata. The Deputy Director of Consolidation erred in not relying upon the judgment dated 4-8-1966 passed by this Court in Second Appeal No. 1480 of 1955. It was incorrectly held that as Sudarshan Singh, the person alleged to be holding the power of attorney executed by the Petitioner in his favour, did not file that power of attorney before Court, as it was stated to have been filed before some other court, it cannot be held that no power of attorney was filed. From the entries as Farar civil death cannot be inferred. The certified copy of the state mart of a witness named Ram Chandra who was alive cannot be considered as it was inadmissible in evidence. On a correct interpretation of Sections 107 and 108 of the Indian Evidence Act, 1872 it was obvious that the burden was on the contesting Respondents to prove that the Petitioner was dead. 6. Sri S.R. Misra, appearing for the contesting Respondents, on the Ors. hand, urged that the judgment in the earlier second appeal decided by this Court would not operate as res-judicata. This Court only held in that case that as the Petitioner was Farar on that basis he cannot lose his rights. As the Mukhtar-nama/Power of Attorney was not filed on behalf of the Petitioner in this case it cannot be assumed that Sudarshan Singh was a Mukhtar-e-Aam of the Petitioner. The statement of Ram Chandra was relevant and was correctly relied upon. The contesting Respondents have discharged the burden in view of Sections 107 and 108 of the Indian Evidence Act. 7. After hearing the learned Counsel for the parties at a considerable length the first point which falls for determination is as to whether the claim of the contesting Respondents is barred by principle of res-judicata in view of the finality of the judgment of this Court in the Second Appeal. In that appeal also the controversy was that the Petitioner was alleged to be Farar and was not heard of for more than seven years. But this Court held that simply because the Petitioner was entered as Farar or was not heard of for the last several years, it could not be assumed that he met his civil death or that he has lost his title. But this Court held that simply because the Petitioner was entered as Farar or was not heard of for the last several years, it could not be assumed that he met his civil death or that he has lost his title. In that appeal also it was urged before this Court that as the Petitioner was Farar for a number of years he would be presumed to have died. But this was not accepted and the second appeal was allowed and decided in favour of the Petitioner. This Court allowed the second appeal by judgment dated 4-8-1966 rejecting all the arguments about civil death. 8. If any dispute or controversy between the parties has been earlier decided and that order became final, the similar or the same controversy or dispute cannot be raised again in a subsequent suit. Even more than a thousand year, B.C in our country when proceedings and judgments in courts of law used to be in Sanskrit the principle of pragnyaya (res-judicata) was applicable between the parties and their representatives. It was supposed to be a best piece of evidence to be relied upon by the Defendant on the basis of which a suit can be decided. In Brahaspati Smirit (p. 294-3) there was following provision: 9. (Sanskrit portion omitted-Editor) This means that the Plaintiff shall prove his allegations in the case and the Defendant shall prove his special pleas (i.e. suit being barred by limitation) in written statement, and the victory or success in the previous suit i e. plea of res judicata etc. would be proved by the copy of decree or the judgment itself. It is well known that the first CPC was enacted in 1859, the second in 1877, the third in 1882 and the fourth (the present one) was enacted in 1908 consolidating and amending the laws pertaining to civil procedure up to that date. As stated earlier even at least one thousand years B.C. much prior to the enactment of first Code of CPC in 1859, the principle of res judicata was well known and applied in our country in the courts of law. The citizens of our country should feel proud that we have best rich heritage in the field of law and jurisprudence also. We have had much advanced principles of procedural and substantial law. The citizens of our country should feel proud that we have best rich heritage in the field of law and jurisprudence also. We have had much advanced principles of procedural and substantial law. A judgment dated lath June, 1974 A. D. was delivered in Sanskrit in a Civil Suit, Tulsi Ram Sarman v. Mani Nath Sarman, published in the Calcutta Weekly Notes, Vol. 24, (1919-20) Journal pp. CL III-CL VI That judgment was also published in Appendix T in Legal and Constitutional History of India, Vol. I (by Justice Ram Jois of the Karnataka High Court). That judgment was rendered by a Mithila Court in Bihar and it indicated that we have much advanced principles of admissibility of evidence, procedural and substantive law. 10. In Sheo Pal Singh v. Ram Sunder Prasad Singh AIR 1916 PC 78 It was observed by the Privy Council as follows: The rule of res-judicata while founded on ancient precedent is dictated by a wisdom which is for all time. 11. In Daryao Singh v. State of U.P. AIR 1964 SC 1457 it was held on page 1463 by the Supreme Court so far as it is relevant is as follows: Rule of res-judicata has no doubt some technical aspects, for instance, the rule of constructive res-judicata may be said to be technical, but the basis on which said rule rests is founded on consideration of public policy. It is in the interest of public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigations. 12. In the earlier case Second Appeal No. 1480 of 1955, decided on 4-8-1966, also the controversy was that Petitioner was 'Farar' and was not traceable and his whereabouts were not known hence he may be presumed to have died but this Court negative all the submissions and after considering all the relevant aspects held that the Appellant, the present Petitioner could not be held to have met his civil death and consequently it was held that he did not , lose his rights. A similar controversy was raised in the present case also after commencement of consolidation operations. A similar controversy was raised in the present case also after commencement of consolidation operations. Nothing has been shown to me as to why not the earlier final decision of this Court in the aforesaid second appeal would operate as res-judicata. I am accordingly of the view that the claim of the contesting Respondents is barred by the principles of res-judicata. 13. The second point for consideration is that when the power of attorney in favour of Sudarshan Singh was filed in another case and just a certified copy of the same was filed in the present case, can it be held on that basis that no Mukhtar-nama was filed in the instant case. As the power of attorney was alleged to have been filed in another case, the certified copy of the same has been filed in the instant case. The contesting Respondents did not allege that no power of attorney was executed in favour of Sudarshan Singh, rather their objection was that the original power of attorney was not filed in the present case but only a certified copy was filed. It is not possible to file one original document in two different cases. In either of the two the certified copy bas to be filed. If it was filed in the instant case, I am of the view that it was substantial compliance of the legal requirements. There is yet another aspect of the matter. Section 41 of the Act makes Chapters IX and X of the U.P. Land Revenue Act, 1901 and Section 53B of the Act makes provisions of Section 5 of the Limitation Act applicable to the proceedings under the U.P. Consolidation of Holdings Act. But the provisions of Indian Evidence Act have not been made applicable to consolidation proceedings under the Act. In the ends of justice, however, not literally but pith and substance of the provisions of Indian Evidence Act can be made applicable. Under the circumstances Sudarshan Singh was correctly holding the Power of Attorney, to file objection. Even a certified copy of the Power of Attorney, if filed in the present case, was sufficient. The same was correctly filed. 14. Under the circumstances Sudarshan Singh was correctly holding the Power of Attorney, to file objection. Even a certified copy of the Power of Attorney, if filed in the present case, was sufficient. The same was correctly filed. 14. As regards the third point about the admissibility of the statement of Pam Chandra Dass relied upon by the Deputy Director of Consolidation about the alleged death of the Petitioner, it is relevant to mention that certified copy of the statement has been filed as Annexure 'A4' to the cornier affidavit As Ram Chandra Dass was alive he should have been examined before the Court, certified copy of his statement when in fact he was alive, was not admissible in evidence. In the certified copy of the statement it has come that Ram Chandra failed to point out any distinct or identification marks on the body in this view of the matter his statement was not reliable. It is well established principle that credibility of an evidence is a question of fact and the admissibility is a question of law. 15. The fourth point for determination is as to whether the contesting Respondents have discharged their burden cast upon them to prove the death of the Petitioner in view of Sections 107 and 108 of the Indian Evidence Act. As stated earlier literally the provisions of Indian Evidence Act are not applicable to the consolidation proceedings. But its substance had to be applied to secure the ends of justice. A bare reading of Section 107 would indicate that when a person's existence or the fact of his being alive is in question and he is shown to have been living at a given time within thirty, and there is nothing to suggest the probability of his death, the continuance of life will be presumed, and the onus of proving otherwise would be on the person who asserts that he was dead. Similar is the provision under Illustration (d) of Section 114 of the Indian Evidence Act. In other words Section 107 deals with the presumption of continuation of life, whereas Section 108 deals with the presumption of death. 16. Further Section 108 of the Indian Evidence Act is a proviso to the provisions of Section 107. Similar is the provision under Illustration (d) of Section 114 of the Indian Evidence Act. In other words Section 107 deals with the presumption of continuation of life, whereas Section 108 deals with the presumption of death. 16. Further Section 108 of the Indian Evidence Act is a proviso to the provisions of Section 107. How a proviso has to be interpreted has been given in Maxwell on Interpretation of Statutes (12th Edition) page 189, which is to the effect that "the proviso is of necessity limited in its operation to the ambit of the Section which it qualifies". So far as that Section itself is concerned, the proviso again receives a restricted construction; where the Section confers powers, "it would be contrary to the ordinary operation of a proviso to give it an effect which would cut down those powers beyond what compliance with the proviso renders necessary". See also Lloyds and Scottish Faience Ltd. v. Modern Carsvceryans (Kingston) Ltd. 1966 1 QB 764; Re Fabrisky Exp. Board of Trade (1947) Ch. 565. As Section 107 provides for the presumption about continuance of life, it was considered necessary to prove for counter presumption for those cases where if a man was not heard of for seven years by his relatives, near & dear ones, his death would seem more likely from the nature and circumstances of the case. This was the object of the legislature in enacting Section 108 in the shape of a proviso. As stated above, Section 107 enacts a provision about Continuance of life whereas Section 108 enacts proviso specifying that where a man was continuously absent for seven years and was not heard of by his friends and neighbors and relatives, he may be presumed to have died, and the burden of proving that he is alive shifts on the person who alleges that he is alive. 17. In the instant case Mukhtar-e-Aam of the Petitioner stated that the Petitioner was alive. Further in the judgment of this Court in the second appeal referred to above it was held that the Petitioner was not dead even though he was recorded in the revenue papers as Farar. In view of these facts it is sufficiently proved that the Petitioner was alive and the burden now shifts on the contesting Respondents to prove that the Petitioner was dead. In view of these facts it is sufficiently proved that the Petitioner was alive and the burden now shifts on the contesting Respondents to prove that the Petitioner was dead. The contesting Respondents could have succeeded, only when they proved that the Petitioner was dead, hence positive evidence of a conclusive nature ought to have been led on their behalf to prove the same but they utterly failed to do so. In fact only the certified copy of the statement of Ram Chandra Dass was filed when in fact he was alive, hence he should have been examined in Court and certified copy of his evidence is inadmissible. I am of the view that the burden to prove the death of the Petitioner was on the contesting Respondents but they failed to discharge the same. 18. In Ram Swarup v. Roshan 1964 AWR 294 relied upon by the peti tioner, a Division Bench of this Court held while interpreting Sections 107 and 108 of the Indian Evidence Act as follows: One important ingredient of Section 108 is that presumption about death could only be taken provided it was proved at the time when the presumption was raised that the person concerned had not been heard of for 7 years by those who would naturally have heard of him. As long as that was not proved, the provisions of Section 108 did not become applicable and the same has to be decided by applying Section 107 ". In the present case I am of the view that the aforesaid ratio of the Division Bench case Ram Swamp v. Roshan (Supra) would be applicable as it was not proved by the contesting Respondents that the Petitioner was not heard of for seven years by those who would have naturally heard of him. 19. The learned Counsel for the contesting Respondents, on the other hand, relied on Mst. Ramrati Kuer Vs. Dwarika Prasad Singh and Others, AIR 1967 SC 1134 but in that case it was proved by those who would have naturally heard of him that he disappeared from the village and, therefore, in that case inference was drawn that he was dead. But in the instant case it was not proved by the contesting Respondents that he was not heard of by those who would have heard of him, hence that case is of no assistance to the contesting Respondents. 20. But in the instant case it was not proved by the contesting Respondents that he was not heard of by those who would have heard of him, hence that case is of no assistance to the contesting Respondents. 20. In view of the discussions aforesaid I am of the opinion that the impugned order of, the Deputy Director of Consolidation is manifestly erroneous and deserves to be quashed. 21. In view of the discussions made hereinbefore, the petition succeeds and it is accordingly allowed and the impugned order dated 28-9-1974 is hereby quashed. However, there shall be no orders as to costs in the circumstances of the case.