JUDGMENT Brijesh Kumar, Member - This is plaintiff's second appeal against the judgment and decree dated 30.3.1978 passed by Sri W.M. Singh, Additional Commissioner, Bareilly Division, Bareilly, reversing the judgment and decree dated 4.12.1972 passed by Sri S.N. Misra, Asstt. Collector 1st Class, Bareilly in a case u/Secs. 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that the plaintiff Dau Dayal and Shobha Ram brought a suit u/Sec. 229-B/209 of the Act against Dan Singh and others with the contention that plot No. 37/2-9-0 situate in village Sanana pergana and Tehsil Bareilly was the bhumidhari of Sharafat Smt. Annapurna Devi and Smt. Kifaiti Begum. The original tenant of the land in dispute were Kalian Bux and Karim Bux sons of Nabi Bux who held equal shares. Kalian Bux sold his share to Smt. Annapurna Devi and Smt. Kifaiti Begum defendants 3 and 4 and put them in possession. The remaining share was sold by Karim Bux to the plaintiffs for a consideration of Rs. 500/- through a sale-deed dated 24.7.1969. Thus, the plaintiffs and the defendants 3 and 4 became bhumidhars of the land in dispute and mutation in their favour was also effected. Defendant Dan Singh and this wife Smt. Soshan Dan Singh moved an application for mutation on the basis of a forged sale-deed before the S.D.O. who by means of his order dated 27.4.1968 ordered for mutation. On a revision being preferred before the Divisional Commissioner, the learned Addl. Commissioner made a reference No. 115 before the Board of Revenue, Lucknow. The reference was fixed for hearing on 29.3.1971 but it was not finally disposed of on account of a notice not being served on the defendant Dan Singh. Defendant Dan Singh and his wife Soshan Dan Singh also got a proceedings started u/Sec. 145 Cr.P.C. On 24.4.1971, the S.D.M. Nawabganj restrained the plaintiffs from interfering with the possession of the defendant Nos. 1 and 2. This gave rise to the cause of action. The declaration of title was therefore sought and prayer for ejectment was also made. It was also made clear in the plaint that the plaintiff sold some portion of the land in dispute, about 750 yards on 12.12.1965 through two sale-deeds to one Ganga Sahai and Kenneth alias Ken Alexander. But they never came in possession. 3. The declaration of title was therefore sought and prayer for ejectment was also made. It was also made clear in the plaint that the plaintiff sold some portion of the land in dispute, about 750 yards on 12.12.1965 through two sale-deeds to one Ganga Sahai and Kenneth alias Ken Alexander. But they never came in possession. 3. The defendants 1 and 2 contested the suit denying the allegation. Their case is that Kalian Bux and Karim Bux sons of Nabi Bux were the sirdars of the land in dispute. They became bhumidhar after depositing 10 times of the rent and sold the property through a registered sale-deed for a consideration of Rs. .00/-in favour of the defendants. Dr. 24.7.1965 Kalian Bux and Karim Bux sold the property to defendants 3 and 4 without any authority. On 22.8.1967, the Addl. Civil Judge, Bareilly declared the sale-deed dated 24.7,1965 executed in favour of Smt, Annapurna Devi and Smt. Kifaiti Begum void. The verdict given by the Addl. Civil Judge will operate as res-judicata. Ch the pleadings of the parties, the horned trial court framed 7 issues and decreed the suit on 4.12.1972. Aggrieved by this judgment and decree, Dan Singh and his wire Smt. Soshan Dan Singh preferred an appeal before the Divisional Commissioner. The learned Addl. Commissioner allowed the appeal and set aside the order of the learned trial court. Hence this second appeal by the plaintiffs appellant. 4. I have heard the learned counsel for the parties. Sri H.O.K. Srivastava, learned counsel for the appellant has contended that the learned Addl, Commissioner has allowed the appeal without jurisdiction because the cost was not paid. His second contention is that the defendant Ken Alexander died during the pendency of the appeal before the first appellate court. Since no steps for substitution was taken, the order passed by the learned Addl. Commissioner is without jurisdiction. Reliance has been placed on AIR 1962 Alld. 542. Coming to the merits of the case, the learned counsel has contended that admittedly Kalian Bux and Karim Bux were the real brothers. Karim Bux sold his share to the defendants 3 and 4 Annapurna Devi and Smt. Kifaiti Begum and Karim Bux sold his share to the defendant Dau Dayal. Reliance has been placed on AIR 1962 Alld. 542. Coming to the merits of the case, the learned counsel has contended that admittedly Kalian Bux and Karim Bux were the real brothers. Karim Bux sold his share to the defendants 3 and 4 Annapurna Devi and Smt. Kifaiti Begum and Karim Bux sold his share to the defendant Dau Dayal. The defendant Dan Singh manipulated to obtain a sale-deed in his favour by Kalian Bux and Karim Bux, But the judgment of the court wit not operate as res-judicata because deed executed by Karim Bux was not cancelled and that the plaintiff appellant was not a party before that court. He also referred to the issue number 7 which was framed on the point of resit judicata, While deciding issue No. 7, the learned trial court gave the finding in favour of the plaintiff appellant. Assailing the finding of the court below, the learned counsel he contended that only Smt. Annapurna Devi and Kifaiti Begum were parties before the civil court and not the plaintiff appellant. His next contention is that the alleged sale-deed executed in favour of the defendant Dan Singh is not proved. The original sale-deed Was filed and its execution had been denied by the executant himself. He has referred to the statement Dan Singh made in the mutation case wherein he had stated that he never purchased any land from Karim Bux. 5. Sri K.G. Srivastava, learned counsel for Smt. Kifaiti Begum and Smt. Annapurna Devi has contended that Dan Singh and Kalian Bux were parties before the civil court. So, the case of Kifaiti Begum and Annapurna Devi will not be barred by res-judicata. Though the civil court cancelled the sale-deed executed in favour of Smt. Kifaiti Begum and Smt. Annapurna Devi, the decree was not acted upon and their names continued to be recorded in the Khatauni. He has further contended that the plaintiff wants co-tenancy along with Smt. Annapurna Devi and Smt. Kifaiti Begum. He has not sought relief against Smt. Kifaiti Begum and Smt. Annapurna Devi. He has further argued that the suit should be decreed in to and the name of Smt. Annapurna Devi and Smt. Kifaiti Begum should remain intact because relief has been sought against them. 6. Banarsi Das, appeared for Dan Singh and Smt. Soshan Dan Singh. He has not sought relief against Smt. Kifaiti Begum and Smt. Annapurna Devi. He has further argued that the suit should be decreed in to and the name of Smt. Annapurna Devi and Smt. Kifaiti Begum should remain intact because relief has been sought against them. 6. Banarsi Das, appeared for Dan Singh and Smt. Soshan Dan Singh. His contention is that Karim Bux and Kalian Bux were sirdars of the land in dispute, after having obtained bhumidhar rights executed a sale-deed in favour of the defendants respondent on 22.4.1963. The mutation order in their favour was also passed on 27.4.1968 and Kalian Bux and Karim Bux supported their cases by filing affidavit. Thereafter Kalian Bux executed a sale-deed in favour of Smt. Annapurna Devi and Smt. Kifaiti Begum and Karim Bux in favour of the plaintiff. This was followed by a civil suit by Dan Singh and his wife. The learned counsel has further contended that on 22.8.1967, the learned Additional Civil Judge had held that Kalian Bux and Karim Bux had no right to execute the sale-deed in favour of Smt. Annapurna Devi and Smt. Kifaiti Begum. He has further argued that constructive res judicata will operate against all the purchasers and the sale-deed executed in their favour would be null and void. Since no appeal and revision has been filed against the order of the civil court, the order has become final. Referring the Section 31 of the Specific Relief Act, he has contended that only the civil court has jurisdiction to cancel the sale-deed. He has further argued that the case of the defendant stood at a better footing because the land in dispute was released in their favour u/Sec. 143, Cr.P.C. Referring to the findings of the learned trial court, the learned counsel has contended that the learned trial court has decreed the suit for declaration only and found the respondent in possession. It further held that the plaintiffs are not co-bhumidhar along with the defendants 3 and 4. Relying on AIR 1953 Pepsu 151 and AIR 1929 Alld. 232 and 839, the learned counsel has contended that the revenue court has no jurisdiction to give any verdict on the sale-deeds. As regards preliminary objection raised by the learned counsel for the appellant. It further held that the plaintiffs are not co-bhumidhar along with the defendants 3 and 4. Relying on AIR 1953 Pepsu 151 and AIR 1929 Alld. 232 and 839, the learned counsel has contended that the revenue court has no jurisdiction to give any verdict on the sale-deeds. As regards preliminary objection raised by the learned counsel for the appellant. The learned counsel has argued that the costs have been paid and if points regarding costs and substitution were not raised before the Commissioner it will be presumed that they have waived these objections. 7. In reply, the learned counsel for the appellant has contended that the papers which were not before the trial court cannot be read evidence and that the sale-deed dated 24.7.1965 has not been challenged. He has further argued that the principle of constructive res-judicata is not applicable to this case. 8. I have carefully considered the arguments advanced before me and have also perused the record. The substantial question of law involved in this case is whether the civil suit No. 269 of 1966 decided by the Addl. Civil Judge Bareilly on 29.8.1967 will operate as res-judicata against the present suit. Following must be proved for successfully raising a plea of res-judicata: (1) the litigating parties must be the same or between the parties under whom they or anyone of them claim; (2) that the subject matter of the suit must be identical: (3) that the matter must be finally decided between the parties and (4) that the suit must be decided by a court of competent jurisdiction. 9. To invoke the doctrine of res-judicata, the ingredients contemplated by Section 11 of the C.P.C., should be satisfied. In the instant case, the defendant respondent Dan Singh filed a civil suit against Smt. Annapurna Devi and Smt. Kifaiti Begum and Kalian Bux for the cancellation of the sale-deed executed on 24.7.1965 and registered on 22.8.1965 in favour of Smt. Annapurna Devi and Smt. Kifaiti Begum by Kalian Bux in respect of half share of plot No. 37/2-9-0. The learned Addl. Civil Judge held the sale-deed dated 24.7.1965 null and void. This decree has been given by a court of competent jurisdiction because only the civil court is the final authority insofar as the cancellation of the sale-deed is concerned. However this decree will not operate as res-judicata against the present suit brought by Dau Dayal. The learned Addl. Civil Judge held the sale-deed dated 24.7.1965 null and void. This decree has been given by a court of competent jurisdiction because only the civil court is the final authority insofar as the cancellation of the sale-deed is concerned. However this decree will not operate as res-judicata against the present suit brought by Dau Dayal. He claims to have purchased half share of the land in dispute from Karim Bux. Both Dau Dayal and Karim Bux were not parties to the civil suit. The defendant's case is that Kalian Bux and Karim Bux after obtaining bhumidhari rights sold the land in dispute to the defendant Dan Singh on 22.4.1965 through a registered sale-deed for a consideration of Rs. 500/- in delivered possession. Subsequently, they transferred the land to defendant 3 Smt. Annapurna Devi and defendant 4 Smt. Kifaiti Begum on 24.7.1965. I fail to understand why Karim Bux not mad a party to the civil suit when there if a specific allegation that he had no right to make any subsequent transfer in favour of Smt. Annapurna Devi and Smt. Kifaiti Begum. Besides, the learned Addl. Civil Judge had cancelled the sale-deed dated 24.7.1965 to the extent of only half share of the land in dispute, leaving Karim Bux unfattered to transfer his interest the extent of half. I am, therefore, satisfied that the civil suit under reference is not between the same parties. How can the plaintiff Dau Dayal and defendant Karim Bux be bound by the decree when they were not parties to the suit, and the sale-deed has been cancelled in respect of half share only. 10. One of the conditions of the applicability of Section 11, C.P.C. is that the matter decided in an earlier suit must be directly and substantially in issue in the latter suit. The words directly and substantially have been explained in explanation IV which says that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. In the instant case plot No. 37/2-9-0 is the subject matter of the dispute. This plot was also involved in the civil suit. In the instant case plot No. 37/2-9-0 is the subject matter of the dispute. This plot was also involved in the civil suit. The plaintiff's case is that Kalian Bux had sold his half share to defendants 3 and 4 and his brother Karim Bux had sold his half share to the plaintiffs. The defendant's case is that both the brothers had already sold their share to him on 22.4.1965. The sale-deed executed on 22.4.1965 is not on the record. However, the sale-deed dated 24.7.1965 shows that Karim Bux had sold his half share of the plot to the plaintiff Dau Dayal. This sale-deed does not appear to have been challenged in the civil court and so the question of its adjudication at any stage does not arise. I am, therefore, satisfied from the facts before me that all the ingredients of res-judicata contemplated u/Sec. 11 C.P.C. are not satisfied. It has been argued by the learned counsel for the respondent that the suit is barred by the principle of res-judicata. The contentions raised by him is not sustainable as neither the parties are the same nor has the sale-deed executed in favour of Dau Dayal been challenged and declared null and void. The learned Addl. Commissioner I has taken an erroneous view in holding that the suit is barred by the principle of res-judicata. He has totally lost sight of the ingredients of res-judicata contemplated u/Sec. 11 C.P.C. 11. Now, the question is what relief the plaintiff is entitled. The plaintiff appellant has sought a declaration of title and ejectment of the defendant. It is also his case that they had sold some portion of the land about 750 yards through two sale-deed executed on 12.12.1965 in favour of Ganga Sahai and Kenneth alias Ken Alexander. But the vendees never came in possession and they being out of possession for more than 6 years lost their rights. The learned trial court while decreeing the suit has held the plaintiff co-tenant along with Ganga Sahai and Ken Alexander. There is nothing on the record to show that Ganga Sahai and Ken Alexander remained out of possession for more than 6 years and that the plaintiff continued to be in possession. The learned trial court has held it was the defendant who were in possession and the plaintiffs. There is nothing on the record to show that Ganga Sahai and Ken Alexander remained out of possession for more than 6 years and that the plaintiff continued to be in possession. The learned trial court has held it was the defendant who were in possession and the plaintiffs. In view of these facts, the question of the plaintiffs being in possession does not arise. The learned trial court has, therefore, taken a correct view in holding Ganga Sahai and Ken Alexander co-tenants along with the plaintiffs. On the contrary, the findings recorded by the learned Addl. Commissioner on this point is without any substance. 12. In view of the aforesaid discussions, the plaintiff appellant is entitled to share of the plot in dispute. He is, therefore, declared bhumidhar to the extent of half share and the defendant Dan Singh and Smt. Soshan Dan Singh shall be ejected from half share of the plot in dispute regards the preliminary objection raised by the learned counsel for the appellant, I do not find any substance in his contention. The plea was not raised before the lower courts regarding payment of costs and substitution. In the absence of such pleas, the objections are deemed to have been waived. 13. In the result, this appeal is partly allowed. The defendant-respondent shall retain possession of the half share of the land in dispute sold by Kalian Bux.