JUDGMENT : ASHOK BHUSHAN, J. 1. Heard Sri V.K.S. Chaudhary, senior advocate, for the Petitioners and Sri Dharmpal Singh appearing for the contesting Respondents. 2. By this writ petition the Petitioners have prayed for quashing the order of the Additional Collector and Deputy Director of Consolidation, Jalaun, dated 28th January, 1975, passed in Revision No. 807 of 1972-73 Sukhdeo Behari v. Smt. Pankunwar and others. 3. This writ petition arises out of the proceedings u/s 9A of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred as 'the Act'). The dispute arose between the parties regarding the plots of khata No. 58 of village Prithvipura, pargana and district Jalaun. Khata No. 58 consisted of plot Nos. 59 area 1.40 acres and 60 area 1.20 acres. Village Prithvipura was notified for consolidation operation vide notification dated 27.1.1971 issued u/s 4 of the Act. In basic year records Petitioner Smt. Pankunwar was recorded over the land in dispute. Notices u/s 9 of the Act were issued to the tenure-holders and records were published u/s 9 (a) of the Act on 30th December, 1997. Sukheo Behari Respondent No. 8 (who died during the pendency of the writ petition) filed objection u/s 9A (2) of the Act claiming that name of Smt. Pankunwar is wrongly entered in the revenue records and he (Sukhdeo Behari) is tenure-holder of the land alongwith Awadh Behari and Sri Krishan (Respondent Nos. 6 and 7). The claim of the objector was contested by the Petitioners. It was claimed by the Petitioner that she is the sole sirdar of the land in dispute. Respondent Nos. 7 and 8 also filed written statement that they have no interest in the land and the Petitioner Smt. Pankunwar is the sole sirdar of the land. Parties led oral and documentary evidence before the Consolidation Officer. Petitioner herself alongwith two witnesses Nathu Ram and Ram Nath appeared in the witness box. Documentary evidence including the order passed by Sub-Divisional Officer dated 16.3.1960 in the case No. 40 was filed by which the name of the Petitioner was directed to be recorded over the land in dispute by the Sub-Divisional Officer. The Consolidation Officer vide his order dated 13.11.1972 rejected the objection of the Respondent No. 8 of co-tenancy right and directed that the name of the Petitioner be alone recorded in the revenue records over khata No. 58. The Consolidation Officer vide his order dated 13.11.1972 rejected the objection of the Respondent No. 8 of co-tenancy right and directed that the name of the Petitioner be alone recorded in the revenue records over khata No. 58. An appeal was filed by the Sukhdeo Behari Respondent No. 8 against the order of the Consolidation Officer. The Settlement Officer of Consolidation after hearing the appeal rejected the said appeal vide order dated 18.6.1973 affirming the order of the Consolidation Officer. A revision u/s 48 of the Act was filed by the Sukhdeo Behari Respondent No. 8 before the Deputy Director of Consolidation which was registered as Revision No. 807 of 1972-73. The said revision was decided by the order dated 28.1.1975 by the Deputy Director of Consolidation. The Deputy Director of Consolidation set aside the order of the Consolidation Officer dated 13.12.1972 and the order of the Settlement Officer of Consolidation dated 18.6.1973 and remanded the matter to the Consolidation Officer to decide the matter again after giving opportunity to Badri Prasad and others to file objection. This writ petition has been filed against the said order dated 28.1.1975. 4. It was necessary to note certain more relevant facts which emerge from the pleadings of parties for appreciating the controversy between the parties. Prior to start of the consolidation operation a Civil Suit No. 400 of 1958 was filed by Sri Har Charan and Shyam Behari for partition of their 2/3rd share in the land situate in village Prithvipura. Respondent No. 2 is the son of said Har Charan and Respondent Nos. 3 to 5 are the sons of Shyam Behari. In Suit No. 400 of 1958 the Defendant No. 1 was Awadh Behari, Defendant No. 2 was Sri Krishan, Defendant No. 3 was Sukhdeo Behari, Defendant No. 4 was Smt. Pankunwar and Defendant No. 5 was Gaon Sabha of Mauza Prithvipura. plot Nos. 59 and 60 were also amongst the plots mentioned in the plaint. Plaintiff's case in the aforesaid suit was that the Plaintiff have 2/3rd share; Plaintiff No. 1 had 1/3rd share, Plaintiff No. 2 had 1/3rd share and Defendant No. 1 and 2 had 1/6th share. In the plaint if was also pleaded that name of Smt. Pankunwar was recorded in possession over the plot Nos. 50A and 60A but she is not in possession. In the plaint if was also pleaded that name of Smt. Pankunwar was recorded in possession over the plot Nos. 50A and 60A but she is not in possession. A Joint written statement by Defendants No. 1 and 4 was filed. It was stated in the written statement that in partition plot Nos. 50A and 60A were given to Smt. Pankunwar on which she is in possession. The aforesaid suit was dismissed by the learned Munsif vide its judgment dated 8.2.1960. An appeal was filed against the said judgment which appeal was allowed on 8.1.1961 by the Additional Civil Judge. The appellate court decreed the suit. Against the decree of the appellate court Awadh Behari filed a second appeal in this Court being the Second Appeal No. 2162 of 1961 along with the connected Second Appeal Nos. 2163 and 2164. These Second Appeals were dismissed by this Court vide its order dated 16.8.1967. After preliminary decree proceedings for preparation of final decree was initiated but before the final decree could be passed the notification u/s 4 was issued regarding the village Prithvipura under the U.P. Consolidation of Holdings Act, 1953. Proceedings for preparation of final decree were consequently abated by the order of the civil court in view of the consolidation operation in the village. Various objections were filed u/s 9A with regard to other khatas of village Prithvipura by Respondents Awadh Behari, Badri Prasad, Shyam Bihari, Sukhdeo Behari and by other Respondents. On basis of objections regarding the other khatas of the village Prithvipura different cases were registered before the Consolidation Officer in which the Respondent Nos. 2 to 8 were parties including the Petitioner. By order of the same date dated 13.11.1972 the Consolidation Officer decided the share in different khatas. As noted above, with regard to khata No. 58 only objection which was filed within time was objection of Sukhdeo Behari u/s 9 on which case No. 486/1417 was registered. A belated objection was filed by Badri Prasad Respondent No. 2 and Shyam Behari father of Respondent Nos. 3 to 5 u/s 9 of the Act with regard to plot Nos. 59 and 60 of Khata No. 58. The said objection was filed on 3.8.1973 alongwith an application u/s 5 of the Limitation Act. The Consolidation Officer rejected the said application refusing to give benefit of Section 5 of the Limitation Act vide his order dated 19.2.1974. 3 to 5 u/s 9 of the Act with regard to plot Nos. 59 and 60 of Khata No. 58. The said objection was filed on 3.8.1973 alongwith an application u/s 5 of the Limitation Act. The Consolidation Officer rejected the said application refusing to give benefit of Section 5 of the Limitation Act vide his order dated 19.2.1974. Against the said order revision No. 564 was filed by Badri Prasad and Shyam Behari before the Deputy Director of Consolidation. The Deputy Director of Consolidation vide its order dated 23.9.1974 set aside the order of the Consolidation Officer and allowed the application u/s 5 of the Limitation Act filed by Badri Prasad and Shyam Behari and remanded the case to the Consolidation Officer for deciding the objection on merits. After the remand by the Deputy Director of Consolidation vide order dated 23.8.1974 an application was given before the Consolidation Officer on 16.4.1974 by Respondent Nos. 2 to 5 praying that they are not interested in prosecuting their objection and their objection be rejected. The Consolidation Officer passed an order on 9.12.1974 on the basis of the said application rejecting the objection of Badri Prasad and others with regard to plot Nos. 59 and 60 of Khata No. 58. A copy of the said order dated 9.12.1974 has been filed as Annexure-7 to the writ petition. One more fact relevant to note is that on a report submitted by the Naib Tahsildar dated 24.2.1960 an order was passed by the Sub-Divisional Officer on 16.3.1960 in case No. 14 directing the name of the Petitioner Smt. Pankunwar be recorded on plot Nos. 59 and 60 as sirdar. A copy of the said order dated 16.3.1960 was filed by the Petitioner before the Consolidation Officer. 5. Sri V.K.S. Chaudhary, learned senior advocate, appearing for the Petitioners in support of the writ petition raised following submissions: 1. The order of the Deputy Director of Consolidation dated 28.1.1975 remanding the case before the Consolidation Officer for giving opportunity to Badri Prasad and others is erroneous. Badri Prasad had not filed any objection u/s 9A with regard to plots of Khata No. 58 and the revision No. 807 in which the impugned order was passed was filed by Sukhdeo Behari in which there was no occasion for grant of relief in favour of Badri Prasad and Shyam Behari who had no objections. Badri Prasad had not filed any objection u/s 9A with regard to plots of Khata No. 58 and the revision No. 807 in which the impugned order was passed was filed by Sukhdeo Behari in which there was no occasion for grant of relief in favour of Badri Prasad and Shyam Behari who had no objections. The order of the Deputy Director of Consolidation setting aside the order of the Settlement Officer of Consolidation and the Consolidation Officer is erroneous. The objection u/s 9 was filed only by Sukhdeo Behari, which was contested by the Petitioner, the Consolidation Officer and the Settlement Officer of Consolidation both decided the case on merits in favour of the Petitioner. The Deputy Director of Consolidation could not have set aside the said order on the reasons given in the said order. Badri Prasad and Shyam Behari had already filed belated objections u/s 9 in which proceedings the Deputy Director of Consolidation has already passed the order on 23.8.1974, for deciding the objections of Badri Prasad on merits which objection was subsequently got dismissed by Badri Prasad and Shyam Behari. 2. The name of the Petitioner was recorded on plot Nos. 59 and 60 by the Sub-Divisional Officer in proceedings which were undertaken in pursuance of the U.P. Land Reforms (Supplementary Act), 1952 and entries made in pursuance of the order of the Sub-Divisional Officer dated 16.3.1960, were to be presumed as correct in accordance with the statutory presumption as contemplated u/s 5 of the aforesaid Act. 3. The judgment and decree of the civil court in partition suit being Suit No. 400 of 1958 had no effect on the rights of the Petitioner and the said decree would not operate as res judicata between the Petitioner and Sukhdeo Behari who alone filed objection u/s 9 of the U.P. Consolidation of Holdings Act. Both Petitioner and Sukhdeo Behari were co-Defendants in the partition suit and it was not necessary to decide the inter se dispute between the co-Defendants to give relief to the Plaintiff of that suit hence the said judgment will not operate as res judicata. Further, the first appellate court which decreed the suit did not advert to the claim of the Petitioner nor any findings were recorded with regard to the claim of the Petitioner regarding Khata No. 58. 6. Further, the first appellate court which decreed the suit did not advert to the claim of the Petitioner nor any findings were recorded with regard to the claim of the Petitioner regarding Khata No. 58. 6. Sri Dharmpal Singh, learned Counsel appearing for the contesting Respondents refuting the submissions of the counsel for the Petitioners contended that the remand was made by the Deputy Director of Consolidation on valid grounds. It was submitted by the learned Counsel that the Deputy Director of Consolidation had remanded the matter to the Consolidation Officer to consider the effect of judgment and decree in the partition suit which will operate as res judicata. Learned Counsel for the Respondents lastly contended that in case this Court takes the view that the remand by the Deputy Director of Consolidation was not justified the said order be set aside and the case be remanded to the Deputy Director of Consolidation for deciding the claim on merits. 7. I have considered the submissions of counsel for both the parties and have perused the record. There is no dispute that during the consolidation proceedings only objection which was filed with regard to Khata No. 58 within time was by Sukhdeo Behari Respondent No. 8. The present writ petition has arisen out of the objection filed by Sukhdeo Behari u/s 9A of the said Act. Sukhdeo Behari in his objection has contended that the name of the Petitioner has been incorrectly recorded and in her place the name of Sukhdeo Behari, Awadh Behari and Sri Krishan should be recorded. Objection was contested by the Petitioner who claimed herself to be sirdar. Awadh Behari and Sri Kirhan gave an application before the Consolidation Officer that they are not parties to the objection filed by Sukhdeo Behari. The Consolidation Officer found the Petitioner in possession and held that the Petitioner had become sirdar in view of the order of the Sub-Divisional Officer dated 16.3.1960 passed in case No. 14, the Consolidation Officer also observed that the sirdari right which were given to the Petitioner by order dated 16.3.1960 was never challenged by Sukhdeo Behari. The Consolidation Officer found the Petitioner's name rightly recorded on the Khata in dispute and rejected the objection of Sukhdeo Behari. The Consolidation Officer found the Petitioner's name rightly recorded on the Khata in dispute and rejected the objection of Sukhdeo Behari. On appeal filed by Sukhdeo Behari the Settlement Officer of Consolidation affirmed the judgment and order of the Consolidation Officer The Deputy Director of Consolidation, by the impugned order has allowed the revision and remanded the matter to the Consolidation Officer on the basis of the application given by Badri Prasad and Shyam Behari that they be given opportunity for filing the objection before the Consolidation Officer. Badri Prasad and Shyam Behari had already filed a time-barred objection before the Consolidation Officer which although was initially rejected by the Consolidation Officer in which the benefit of Section 5 of the Limitation Act was refused by the Consolidation Officer but on revision the Deputy Director of Consolidation vide his order dated 23.8.1974 passed in Revision No. 564 granted the benefit of Section 5 of the Limitation Act and remanded the matter to the Consolidation Officer. The said order dated 23.8.1974 which was passed in the revision filed by Badri Prasad was not in favour of Sukhdeo Behari in any manner. The objection of Sukhdeo Behari was rejected on merit by the Consolidation Officer and the Settlement Officer of Consolidation vide their orders dated 13.12.1972 and 18.6.1973. The Deputy Director of Consolidation in the impugned order has not held that the order of the Consolidation Officer and the Settlement Officer of Consolidation are erroneous on merits rather the same was remanded only to give opportunity to Badri Prasad to file objection. The reason given by the Deputy Director of Consolidation for remanding the case was wholly insufficient for allowing the revision filed by Sukhdeo Behari. The name of the Petitioner was recorded over Khata and only Sukhdeo Behari has objected by filing the objection. The dispute between the Petitioner and Sukhdeo Behari was subject matter of revision No. 807. In the proceedings which went before the Deputy Director of Consolidation in revision there was no claim of Badri Prasad and Shyam Behari hence remand of the case on the basis of their claim which was never raised before the Consolidation Officer was uncalled for and unjustified. The orders of the Consolidation Officer and the Settlement Officer of Consolidation were on merits and have rejected the objection of Sukhdeo Behari and upheld the Petitioner as Sirdar of Khata in dispute. The orders of the Consolidation Officer and the Settlement Officer of Consolidation were on merits and have rejected the objection of Sukhdeo Behari and upheld the Petitioner as Sirdar of Khata in dispute. The orders which were in favour of the Petitioner were set aside by the Deputy Director of Consolidation by the impugned order without any justified ground hence the said order cannot be sustained and is liable to be quashed. 8. The submission of the counsel for the Respondents that the Deputy Director of Consolidation has remanded the matter for consideration of certain relevant materials which were filed by Badri Prasad and others before the Deputy Director of Consolidation needs to be considered. As observed above, Badri Prasad being neither objector nor claimed any right on plots of Khata No. 58, there was no occasion for remanding the case for consideration of any of their rights. The Deputy Director of Consolidation did not record finding that the order of the Consolidation Officer and the Settlement Officer of Consolidation are erroneous nor upheld that the earlier judgment of the civil court barred the claim of the Petitioners. The remand by the Deputy Director of Consolidation for consideration on material brought by Badri Prasad and others on record was wholly unjustified. In view of what has been said above the first and second submissions raised by the counsel for the Petitioner are well founded. The order of the Deputy Director of Consolidation dated 28.1.1975 remanding the case to the Consolidation Officer for giving opportunity to Badri Prasad to file his objection cannot be sustained. 9. The alternative submission raised by the counsel for the Respondents is that in case the claim of Badri Prasad and Shyam Behari could not have been taken into consideration by the Deputy Director of Consolidation while passing the impugned order the Deputy Director of Consolidation is required to decide the revision filed by Sukhdeo Behari on merits. The counsel for the Respondents submitted that even if the order of remand by the Deputy Director of Consolidation is unsustainable, the case should be again remanded to the Deputy Director of Consolidation for deciding the revision filed by Sukhdeo Behari on merits. The submission of the counsel for the Respondents is that the Deputy Director of Consolidation is required to give effect to the judgment of the civil court passed in partition suit. The submission of the counsel for the Respondents is that the Deputy Director of Consolidation is required to give effect to the judgment of the civil court passed in partition suit. His submission is that the judgment of the civil court in partition suit will operate as res judicata in favour of Sukhdeo Behari and against the Petitioner and this question needs to be examined by the Deputy Director of Consolidation again. Learned Counsel for the Petitioner in reply submitted that the judgment of the civil court in partition suit will not operate as res judicata and there is no necessity for remanding the case again before the Deputy Director of Consolidation. 10. This writ petition has been filed in this Court in the year 1975 and it is being heard after about twenty eight years. The remand is being pressed on behalf of the Respondents on the ground that the Deputy Director of Consolidation has not examined the effect of the judgment of the civil court in partition suit; hence he is required to examine the said question. The question as to whether the preliminary decree passed by the civil court in partition suit will operate as res judicata is a mixed question of facts and law. For deciding the question of res judicata, the judgment of earlier proceedings and plaint and written statement is required to be considered. On the record of the present writ petition, the judgment and decree of the civil court dated 18.1.1961 has already been filed by the Respondent as Annexure C.A. III to the counter-affidavit. The plaint and written statement of Suit No. 400 of 1958 has also been filed as Annexures-C.A. I and C.A. II to the counter-affidavit. The judgment and decree and the pleadings of the earlier suit being already on record, the question as to whether the judgment will operate as res judicata can very well be decide in this writ petition and I do not feel it necessary to remand the matter for the said determination in view of the fact that this writ petition is pending before this Court for 28 years, consequently I proceed to examine the aforesaid question in this writ petition. 11. 11. The question which has arisen in this writ petition is as to whether the judgment and decree by the first appellate court dated 18.1.1961 in Suit No. 400/58 will operate as res judicata between the Petitioner and Sukhdeo Behari. As noted above, the dispute in present writ petition had arisen out of the proceedings initiated by filing the objection by Respondent No. 8 Sukhdeo Behari u/s 9A of the U.P. Consolidation of Holdings Act. Admittedly, on the land in dispute of Khata No. 58 the name of the Petitioner alone was recorded which was being objected by Sukhdeo Behari alone. In the grounds of appeal which was filed by Sukhdeo Behari before the settlement officer of Consolidation the plea was taken that Partition Suit No. 400/58 was fought between the parties in civil court in which final decree was passed. It has come on the record of the writ petition that preliminary decree was passed by the civil court in the partition suit by first appellate court vide its judgment dated 18.1.1961. The following decree was passed by the appellate court vide judgment dated 18.1.1961- "The appeals are allowed. The judgment and decree passed by the learned Munsif in all the three suits are set aside. Share of the Appellants in the plots in suit is declared to be two third. Their claim for partition is upheld. Appellants will get their costs of both the Courts from the Respondents. Let a preliminary decree for partition be prepared accordingly. This judgment will be kept on the file of Civil Appeal No. 30 of 1960. Let copies of the same be kept on the files of the connected Civil Appeal Nos. 28 of 1960 and 29 of 1960." 12. The judgment of the first appellate court was also affirmed by this Court vide judgment dated 16.8.1967, passed in Second Appeal No. 2162 of 1961 and other connected second appeals. From perusal of the copy of the plaint which has been filed as Annexure-C.A. 1 to the counter-affidavit it is clear that there were two Plaintiffs in suit No. 400/58 first Plaintiff being Harcharan and second Plaintiff being Shyam Behari. Sukhdeo Behari who filed objection in the consolidation proceedings against the Petitioner u/s 9A of the Act was impleaded as Defendant No. 3 in the aforesaid Suit No. 400/58. The Petitioner was impleaded as Defendant No. 4 in the aforesaid suit. Sukhdeo Behari who filed objection in the consolidation proceedings against the Petitioner u/s 9A of the Act was impleaded as Defendant No. 3 in the aforesaid Suit No. 400/58. The Petitioner was impleaded as Defendant No. 4 in the aforesaid suit. Thus both the Petitioner and Sukhdeo Behari were impleaded as co-Defendants in the aforesaid suit. In paragraph 9 of the plaint it was pleaded that the name of the Petitioner Smt. Pankunwar has wrongly been recorded in possession over plots Nos. 59 and 60. A copy of the written statement jointly filed by the Defendant Nos. 1 to 4 is Annexure-C.A. 2 to the counter-affidavit. The joint written statement was filed in the aforesaid suit both by the Petitioner and Sukhdeo Behari Respondent No. 8 to the present writ petition. It was pleaded in paragraph 29 of the written statement that in partition suit plot described in Schedule 'saa', plot Nos. 59 and 60 were given to Smt. Pankunwar. The recording of the name of the Petitioner over plot Nos. 59 and 60 was also admitted in the written statement. From perusal of the aforesaid written statement it is clear that there was no inter se dispute pleaded between the co-Defendants in the aforesaid suit. The Plaintiffs had filed suit praying for partition of their 2/3rd share in the appellate court judgment dated 18.1.1961 which decreed the suit. There is no reference or discussion of the case of the Petitioner nor the aforesaid judgment held that the Petitioner has no share in the aforesaid plots. Whether the judgment of the civil court dated 18.1.1961 will operate as res judicata with regard to claim of Sukhdeo Behari and the Petitioner in consolidation proceedings is the question to be answered in this case. The principles of which res judicata operates between the co-Defendants is well-settled. The Apex Court in Iftikhar Ahmed and Others Vs. Syed Meharban Ali and Others, AIR 1974 SC 749 had clearly laid down the principle on which res judicata will operate between the co-Defendants. In paragraph 9 of the judgment the Apex Court held: "9. The principles of which res judicata operates between the co-Defendants is well-settled. The Apex Court in Iftikhar Ahmed and Others Vs. Syed Meharban Ali and Others, AIR 1974 SC 749 had clearly laid down the principle on which res judicata will operate between the co-Defendants. In paragraph 9 of the judgment the Apex Court held: "9. Now it is settled by a large number of decisions that for a judgment to operate as res judicata between or among co-Defendants, it is necessary to establish that (1) there was a conflict of interest between co-Defendants (2) that it was necessary to decide the conflict in order to give the relief which the Plaintiff claimed in the suit and (3) that the Court actually decided the question." 13. A Division Bench of this Court in Mohammad Mohit Ullah Khan and Another Vs. Bibi Halima Begam considered the question of res judicata between the co-Defendants. Following was held by the Division Bench of this Court: "The question of res judicata may be disposed of briefly. The parties to the present suit, or their predecessors in title, were arrayed upon the same side in the partition proceedings. If they applied jointly for having their shares termed into a separate patt, as appears probable, then they were in the position of co-Plaintiffs. Otherwise they were in the position of co-Defendants. No partition was effected between the parties inter se. A separate patti was allotted to them jointly, proportionate to the total value of their recorded shares. There was no conflict of interest between them and for the purpose of effecting the partition it was unnecessary to determine the shares of the parties inter se. In such circumstances we hold that the Plaintiff's claim to a larger share as against her brothers is not barred by the rule of res judicata. The extent of the shares of the parties inter se was not raised or decided by the revenue court. Although it was open to the Plaintiff to have raised the question of title in the partition proceedings, it is difficult to say that she ought to have raised such question and in any case it cannot be held that she ought to have raised the question as a ground of defence or attack since there was no conflict of interest between the parties inter se. We hold therefore that the rule of res judicata does not bar the present suit." 14. Justice Subba Rao (As he then was) considered almost similar question in the case in Mallayya and Another Vs. Talari Trippanna and Others, AIR 1955 AP 81 . In the aforesaid case an earlier Suit No. 108 of 1935 was fought between the parties who filed subsequent Suit No. 172 of 1947. Suit No. 108 of 1935 was filed by two co-owners Lingappa and Mangamma for recovery of possession of their one sixth share in the plaint schedule property. There were several Defendants to the aforesaid suit. Learned Munsfir decreed the suit for recovery of possession of 1/6th share in the suit land. The Court in its decree did not grant any relief to the Defendants of that suit. Subsequent Suit No. 172 of 1947 was filed by successor-in-interest of 2nd and 5th Defendants of the earlier suit. Subsequent suit was filed for partition and possession of share of Plaintiff in the schedule property. The question arose as to whether the subsequent suit was barred by principle of res judicata. It was held that subsequent suit is not barred by principle of res judicata. Following was laid down in the aforesaid case: "In a partition suit, though the Defendants have got the option to ask for such a relief and obtain the same, they are not bound to do so. When they did not exercise their option to ask for partition of their share. I do not see how the decree in the earlier suit would be a bar to the maintainability of the present action. Mr. Bhujanga Rao, the learned Counsel for Defendants, strongly relied on the decision in Sethurama Saheb v. Chotta Raja Sahib AIR 1918 Mad 751 (A).There the Plaintiff filed an earlier suit for partition of the family properties and obtained a decree therein. Subsequently, he filed another suit for partition of properties omitted in the earlier suit. The learned Judge held that the second suit was not maintainable. In so holding, they observed that the cause of action for partition was one and the same and once it had merged into a preliminary decree and final decree, a second suit for partition would not lie. I do not see how that case has any bearing on the question to be decided in the present case. In so holding, they observed that the cause of action for partition was one and the same and once it had merged into a preliminary decree and final decree, a second suit for partition would not lie. I do not see how that case has any bearing on the question to be decided in the present case. There a party who filed a suit for partition and obtained a decree, attempted to file another suit on the same cause of action. The Court rightly held that the cause of action was one and the same, and therefore, the second suit was not maintainable." In the aforesaid judgment, it was held in partition suit that when the Defendant specifically raises the question and gets decision against him, he is precluded from filing any other suit. It was held: "When the Defendant, who is in the position of a Plaintiff, specifically raises the question and gets a decision against him, he is certainly precluded from filing another suit on the same cause of action." 15. From the decree passed in Suit No. 400 of 1958 by the appellate court it is clear that the Court decreed the suit of partition of 2/3rd share of the Plaintiff only. Preliminary decree for partition of 2/3rd share was passed. Neither the shares of the Defendants were declared nor it was held even in the body of judgment that the Petitioner had no share in the property. 16. The decision of this Court in Smt.Ram Dulari v. Deputy Director of Consolidation, Jaunpur and others 1985 ALJ 1002 is fully attracted in the facts of the present case. In the aforesaid case, there was earlier suit u/s 229B of the U.P. Zamindari Abolition and Land Reforms Act in which the Plaintiffs were Rama Shanker and Hari Shanker. During the consolidation operation, the plots in dispute were recorded in the name of the writ Petitioner Smt. Ram Dulari along with Ram Shanker and Hari Shanker. Objection was filed by the Respondents claiming co-tenancy right along with one Ram Lakhan. The Deputy Director of Consolidation held that the earlier judgment u/s 229B operated as res judicata. During the consolidation operation, the plots in dispute were recorded in the name of the writ Petitioner Smt. Ram Dulari along with Ram Shanker and Hari Shanker. Objection was filed by the Respondents claiming co-tenancy right along with one Ram Lakhan. The Deputy Director of Consolidation held that the earlier judgment u/s 229B operated as res judicata. This Court after examining the pleadings in the declaratory suit and after noticing of array of parties held that since the parties before the consolidation proceedings were Defendants in the declaratory suit the principle of res judicata is not attracted, since neither the controversy was actually decided nor was relevant to give relief to the Plaintiffs. Following was laid down in paragraph 8: "8. In the instant case it is clear from the copy of the plaint (Annexure-5) that the present Respondent Nos. 3 and 4 were Defendant Nos. 1 and 2 in the earlier suit and the present Petitioner Smt. Ram Dulari was Defendant No. 3. In this way the Petitioner and Respondent Nos. 3 and 4 both were Defendants. From the reading of the plaint and the relief sought therein it is clear that there was no dispute or conflict of interest between Defendant Nos. 1 and 2 on the one hand and Defendant No. 3 on the other. There was no such dispute or controversy between the Defendants so that the same could have been decided for the relief being granted to the Plaintiffs. As there was no denial of the claim of the present Petitioner in the earlier suit, there was no occasion for the present Petitioner to have urged in the earlier suit that she had obtained a sale deed from Ram Nandan, father of the Respondent Nos. 3 and 4. Unless there was some dispute between the co-Defendants and that was necessary for the effective disposal of the suit itself and unless that controversy was actually decided between the co-Defendants, the decision so rendered cannot be said to be res judicata between the co-Defendants. 3 and 4. Unless there was some dispute between the co-Defendants and that was necessary for the effective disposal of the suit itself and unless that controversy was actually decided between the co-Defendants, the decision so rendered cannot be said to be res judicata between the co-Defendants. In view of these facts it is clear that there was no dispute or conflict of interest between the co-Defendants and unless the same was necessary for granting relief to the Plaintiffs and unless this conflict of interest or dispute was actually decided while granting relief to the Plaintiff and the said order has become final, it cannot operate as res judicata between co-Defendants. Simply because those parties were as co-Defendants in the earlier suit the judgment so rendered could not be said to be effective or binding as res judicata as there was no occasion for the present Petitioner to have set up the sale deed executed by Ram Nandan, father of the Respondent Nos. 3 and 4. In this view of the matter, it cannot be said that the judgment and decree in the earlier suit u/s 229B of the U.P.Z.A. and L.R. Act in which litigation continued till the Board of Revenue and subsequently a civil suit was also filed for the cancellation of that judgment and decree, would appear as res judicata. (See Iftikhar Ahmed and Others Vs. Syed Meharban Ali and Others, AIR 1974 SC 749 . The order passed by the Deputy Director of Consolidation on the basis of the plea of res judicata is manifestly erroneous in law and the same cannot be sustained. It shall, however, be open to the Deputy Director of Consolidation to decide the revision afresh in the light of the evidence on record without taking into consideration the plea of res judicata." 17. In view of the dictum as laid down by the Apex Court in the case mentioned above, it is clear that the judgment in Partition Suit No. 400 or 1958 will not operate as res judicata with regard to rights of Petitioner and Sukhdeo Behari. Both the Petitioner and Sukhdev Behari were impleaded as co-Defendants in the partition suit and there was no conflict of interest between the co-Defendants in the partition suit. Both the Petitioner and Sukhdev Behari were impleaded as co-Defendants in the partition suit and there was no conflict of interest between the co-Defendants in the partition suit. In fact, co-Defendants had filed a joint written statement under which the claim of Petitioner was not even denied by Sukhdev Behari who was also one of the co-Defendants. This judgment of the Partition Suit No. 400 of 1958 will not operate as res judicata between the Petitioners and Sukhdeo Behari. 18. The Consolidation Officer in his order dated 13.11.1972 has accepted the claim of sirdari of Petitioners on the basis of entries of possession in favour of the Petitioner as well as the order of the Sub-Divisional Officer dated 16.3.1960, passed in case No. 14 under C.L.R.D. scheme. The Consolidation Officer has rightly observed that the entry in the name of the Petitioner made on the basis of the order of Sub-Divisional Officer dated 16.3.1960 was never challenged by Sukhdeo Behari. Section 3 of U.P. Land Reforms Supplementary Act, 1952 gives sirdar right to every person who was in cultivatory possession of any land during the year 1357 fasli. The name of the Petitioner was entered in pursuance of the order of the Sub-Divisional Officer dated 16.3.1960, passed in exercise of jurisdiction by Sub-Divisional Officer u/s 4 of the aforesaid Act. No error was committed by the Consolidation Officer in upholding the sirdari rights of the Petitioner. 19. The Settlement Officer of Consolidation has also affirmed the findings of the Consolidation Officer. The Consolidation Officer did not commit any error in rejecting the objection of Sukhdeo Behari. The order of the Consolidation Officer dated 13.11.1972, as well as the order of the Sub-Divisional Officer affirming the said order are upheld and the order of the Deputy Director of Consolidation dated 28.1.1975 is quashed. 20. The writ petition is accordingly allowed. Parties shall bear their own costs.