JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri R.N. Singh, Senior Advocate, assisted by Sri A.K. Rai for the petitioner and Sri Vinod Sinha, Counsel appearing for respondents No. 3 to 6. 2. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the parties, the writ petition is being finally decided. 3. By this writ petition, the petitioner has prayed for quashing the judgment and order dated 28th November, 2005 passed by Deputy Director of Consolidation in the revision filed by respondents No. 3 to 6 and the order dated 22nd November, 2004 passed by Settlement Officer of Consolidation. 4. Brief facts of the case are; Plot No. 1189 area 1.080 hectare was recorded in the names of Kalu and Shabbir sons of Bashir each having half share. Kalu executed a sale deed of his half share of Plot No. 1189 by registered sale deed dated 15th April, 1998 in favour of respondents No. 3 to 6. The names of respondents No. 3 to 6 were recorded in the revenue records on the basis of the sale deed. The sale deed recited that vendor had given possession on the western side with two mango trees, two Sheesham trees and one Sahtoot tree to the vendees. The dispute between the vendors and Shabbir arose after the sale deed. A suit being Suit No. 316 of 1998 was filed by Shabbir for injunction against the vendees claiming injunction to the land in suit. The plaint case was that in Plot No. 1189 the plaintiff is in possession of northern half area, which was described with words ‘v] c] d] [k’ in the plaint. The plaintiff’s case was that there was private partition between the plaintiff and his brother Kalu in which the northern half area was given to Shabbir and southern half area was given to Kalu and both the parties adjoined the road and had been cultivating accordingly. It was stated in the plaint that vendees forcibly wanted to take possession of the land described as ‘v] c] d] [k’ saying that they had purchased the entire area towards the road. It was stated in the plaint that vendees forcibly wanted to take possession of the land described as ‘v] c] d] [k’ saying that they had purchased the entire area towards the road. The vendees appeared in the suit and issues were framed as to whether plaintiff is in possession of northern half portion of Plot No. 1189, as to whether the suit is barred by Order VII Rule 11 of C.P.C. and the third issue was as to whether the suit is barred under Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950. In the suit Shabbir appeared as P.W.-1. Two witnesses Sahdeo and Rajpal appeared for defendant. While deciding Issue No. 1 whether plaintiff is in possession of northern half share it was found by the Court that in private partition eastern half was given to plaintiff and western half was given to Kalu, who has sold it to the vendees. While deciding the issue whether the suit was barred under Order VII, Rule 11 of C.P.C., it was held that there was no cause of action in the plaint. While deciding Issue No. 3, it was held that suit was barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950. The suit was dismissed with the aforesaid findings. Against the order dismissing the suit an appeal was filed, which was dismissed in default. Shabbir executed a sale deed in favour of petitioner on 26th October, 2004 of his half share in Plot No. 1189. The sale deed recited that in plot in dispute two Sheesham trees are existing. The sale deed also recited that land is situate on the road, hence 15% increased stamp duty was paid on the sale deed. An application under Section 5(1)(c) of U.P. Consolidation of Holdings Act, 1953 was filed by respondents No. 3 to 6 seeking permission to construct abadi on 1000 square metres area adjacent to the road on 11th November, 2004. An order was passed on 22nd November, 2004 by Settlement Officer of Consolidation granting permission to the respondents to make construction over 1000 square metres land adjacent to the road. The petitioner after coming to know about the order filed an application on 2nd December, 2004 for modifying the order praying that permission for construction be also granted to him. An order was passed on 22nd November, 2004 by Settlement Officer of Consolidation granting permission to the respondents to make construction over 1000 square metres land adjacent to the road. The petitioner after coming to know about the order filed an application on 2nd December, 2004 for modifying the order praying that permission for construction be also granted to him. The objection was contested by the respondents as well as by the petitioner before the Settlement Officer of Consolidation and the Settlement Officer of Consolidation by order dated 15th December, 2004 recalled his earlier order dated 22nd November, 2004 with the finding that petitioner being co-sharer of the plot in dispute and the earlier order having been passed without notice to the petitioner, the order is liable to be recalled. The petitioner is said to have filed an objection dated 31st December, 2004 praying for division of Plot No. 1189 of Khata No. 381, which is claimed to be pending. The Settlement Officer of Consolidation after the order dated 15th December, 2004, passed a fresh order dated 3rd January, 2005 permitting the petitioner as well as the respondents to raise construction over half portion of the plot in question respectively, i.e., 1000 square metres each in plot in dispute. Aggrieved against the order dated 3rd January, 2005, a revision was filed before the Deputy Director of Consolidation by respondents No. 3 to 6. During pendency of revision, petitioner filed an application for spot inspection on 28th March, 2005. The Deputy Director of Consolidation called for a report, which was submitted by Assistant Consolidation Officer on 29th April, 2005. The Deputy Director of Consolidation vide his order dated 28th November, 2005 allowed the revision filed by the respondents, set-aside the order of Settlement Officer of Consolidation dated 3rd January, 2005 and the order of Settlement Officer of Consolidation dated 22nd November, 2004 was restored. This writ petition has been filed challenging the aforesaid order of Deputy Director of Consolidation. 5. Sri R.N. Singh, learned Counsel for the petitioner, challenging the order, contended that Deputy Director of Consolidation committed error in holding that petitioner was not entitled for any permission for construction on the western side towards road. It was contended that dismissal of suit filed by Shabbir for injunction, had no affect on the application of petitioner for permission under Section 5(1)(c). It was contended that dismissal of suit filed by Shabbir for injunction, had no affect on the application of petitioner for permission under Section 5(1)(c). He contended that suit having been dismissed as barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, any finding recorded in the judgment has no effect. Learned Counsel for the petitioner further submitted that petitioner who became co-sharer after purchase of the half share of Shabbir and there being no division of holding under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950, every co-sharer had right on every inch of land. Learned Counsel for the petitioner in support of his submission that judgment of the civil Court, specially the finding with regard to private partition, has no bearing, has relied on the judgment of the Apex Court reported in A.I.R. 1965 S.C. 338, Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar; A.I.R. 1987 S.C. 2205, Richpal Singh and others v. Dalip and A.I.R. 1998 S.C. 972, Syyed Ali and others v. Andhra Pradesh Waqf Board, Hyderabad and others. 6. Sri Vinod Sinha, learned Counsel for the contesting respondents, refuting the submissions of learned Counsel for the petitioner, contended that private partition between Shabbir and Kalu was fully proved and finding to that effect had been recorded by civil Court in the judgment and order dated 24th July, 2004, hence it was proved that half portion of plot in question towards road, i.e., western side, was purchased by the contesting respondents and the petitioner’s share was in the east of the plot and no error had been committed by the Settlement Officer of Consolidation in his order dated 22nd November, 2004 granting permission to the respondents over 1000 square metres of the disputed land. Learned Counsel for the respondent submits that when more than one issue is decided in the suit the principle of res judicata will apply on each finding recorded by the Court. Reliance has been placed on the judgments reported in A.I.R. 1963 S.C. 385, Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai; A.I.R. 1971 S.C. 442, Gangappa Gurupadappa Gugwad v. Rachawwa and others and A.I.R. 1974 Pat 221, Raghumal v. Banmali Sahu. Reliance has been placed on the judgments reported in A.I.R. 1963 S.C. 385, Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai; A.I.R. 1971 S.C. 442, Gangappa Gurupadappa Gugwad v. Rachawwa and others and A.I.R. 1974 Pat 221, Raghumal v. Banmali Sahu. It is further submitted that a suit has also been filed by the petitioner in which notices were issued on injunction application against which revision was filed, which was subsequently withdrawn but these facts have not been mentioned in the writ petition. 7. I have considered the submissions of learned Counsel for the parties and perused the record. 8. Both petitioner and respondents No. 3 to 6 are purchaser of half share of the Plot No. 1189. The sale deed dated 15th April, 1998 in favour of the respondents from Kalu of his half share recited western portion of the land whereas sale deed of half share in favour of the petitioner dated 26th October, 2004 was taken from Shabbir. The names of both Kalu and Shabbir were jointly recorded in plot in dispute and after the sale in favour of respondents by Kalu their names were also mutated in the Khatauni. Plot No. 1189 has not been divided by any proceeding under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950 or in consolidation proceedings. The objection under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 filed by the petitioner for division of the holding is pending consideration. It is true that sale deed, which was executed by Kalu in favour of the contesting respondents mentioned western portion of Plot No. 1189 towards the road. Kalu and Shabbir both being co-sharer of Plot No. 1189, both have right over every inch of land till the division is made. The sale deed executed by Kalu was a sale deed executed by one co-sharer, which sale deed does not mention any division of the plot. A suit for injunction was filed by Shabbir restraining respondents No. 3 to 6 from interfering in the possession of northern side of plot. The case of Shabbir in the suit was that plot has been divided north south both adjoining the road whereas case of the contesting respondents before the civil Court was that share of Kalu was towards west adjoining the road. The case of Shabbir in the suit was that plot has been divided north south both adjoining the road whereas case of the contesting respondents before the civil Court was that share of Kalu was towards west adjoining the road. It is true that civil Court while deciding Issue No. 1 found that plaintiff failed to prove private partition north south as claimed by him and private partition as claimed by private respondents was proved. The submission, which has been raised by the petitioner and which has been refuted by Counsel for the respondents is regarding effect of the judgment and order of the civil Court. The petitioner’s case is that suit having been dismissed as barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, findings with regard to private partition is of no avail whereas learned Counsel for the respondent submits that findings regarding private partition are fully proved, hence there was no error in granting permission to the respondents of 1000 square metres for making construction. In the suit, which was filed by Shabbir, Issue No. 3 was as to whether the suit is barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950. Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950 is as follows : “331. Cognizance of suits, etc. under this Act.—(1) Except as provided by or under this Act or Court other than a Court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908) take cognizance of any suit, application, or proceedings mentioned in column 3 thereof (;) [or of a suit, application, or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application :] [Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof]”. 9. 9. The issue was decided by the civil Court in favour of the respondents that suit is barred by Section 331, the consequence of which is that civil Court took the view that plaintiff Shabbir was to institute proceeding for division as contemplated under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950. The village being under consolidation, the said relief can be granted by the consolidation Courts and in fact an objection has already been filed by the petitioner on 31st December, 2004 praying for division of holding. The submission of Counsel for the petitioner that when a suit has been dismissed as barred, finding on other issues does not operate as res-judicata has substance. In Athmanathaswami’s case (supra) similar issue arose before the Apex Court. A suit for recovery of an amount as damages of use and occupation of the lands in suit was filed by the appellant. The respondents contended that suit land were ryoti land and in view of the above the suit was not maintainable in the civil Court. The trial Court and the High Court found that suit land was ryoti land. The High Court held that suit could only be filed in revenue Court and the civil Court had no jurisdiction. The Apex Court laid down following in paragraph 13 : “13. The last point urged is that when the civil Court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint.” 10. The Apex Court laid down in the above case that when the Court has no jurisdiction to decide the suit, it cannot decide any question on merits. Similar view has been taken by the Apex Court in Syyed Ali’s case (supra). Following was laid down in paragraph 8 of the said judgment : “8. The Apex Court laid down in the above case that when the Court has no jurisdiction to decide the suit, it cannot decide any question on merits. Similar view has been taken by the Apex Court in Syyed Ali’s case (supra). Following was laid down in paragraph 8 of the said judgment : “8. The second argument of learned Counsel for the appellant is that the findings recorded by the High Court as regards the character of the property in its judgment dated 22.4.70 rendered in writ petition No. 1726 of 1968, arising out of the order passed by the Revenue Divisional Officer, Visakhapatnam, constituted res judicata. The parliament has enacted Wakf Act to provide for better administration and supervision of Wakfs. Under sub-section (2) of Section 5 of the Act the Board is required to publish in the official Gazette the list of Wakf properties whether in existence at the commencement of the Act or coming into existence thereafter. Section 6 of the Wakf Act further provides that if any question arises whether a particular property specified as Wakf property in the list of Wakf published under the Act, is a Wakf property or not, the Board or Mutuwallis of the Wakf or any person interested therein, may institute a suit in a Civil Court of competent jurisdiction for decision of the question and the decision of the Civil Court in respect of such matter shall be final. It is also provided therein that no such suit shall be entertained by the Civil Court after the expiry of one year from the date of the publication of the list of Wakf under sub-section (8) of Section 5 of the Act. Sub-section (4) of Section 6 further provides that the list of Wakfs published under sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the Civil Court under sub-section (1), be final and conclusive. Therefore, any dispute relating to the character of Wakf property is to be decided in the manner provided under the Wakf Act. Subject to the result of a civil suit, if filed, the list of Wakfs published in the official gazette is final and conclusive. Therefore, any dispute relating to the character of Wakf property is to be decided in the manner provided under the Wakf Act. Subject to the result of a civil suit, if filed, the list of Wakfs published in the official gazette is final and conclusive. In the present case, the disputed property was shown as Wakf property in the A.P. Official Gazette on 30.11.1961 and no suit having been filed challenging the Wakf property, the entries in the official Gazette describing the property as wakf became final and conclusive. Under Section 3 of the Inams Act, Tahsildar may suo motu make an enquiry for the purpose of grant of patta on three points, one of them being, whether inam land is held by any institution. While making an enquiry in the present case as to find out whether the inam land was held by the Dargah, the Tahsildar was not required to enquire into and adjudicate upon the character of the wakfs published in the official Gazette under sub-section (2) of Section 5 of the Wakf Act, as the dispute in that regards as to its character could only be decided in the manner provided in Section 6 of the Wakf Act. Assuming that the wakf property was not found to be held by the Dargah under Section 3 of the Inam Act, it was not open to the Tahsildar to adjudicate upon the character of the Wakf property as the same was a grant by way of service inam for purposes recognized by the Muslim law as pious, religious or charitable which constituted the property as Wakf. Thus, we find that the finding of the Tahsildar that the property was not Wakf, was wholly erroneous and beyond his jurisdiction. Consequently, the finding of the Tahsildar that the property is not a Wakf property would not constitute res judicata in the subsequent suit filed by the Wakf Board. It is well settled that if a decision of a Court or a tribunal is without jurisdiction, such a decision or finding cannot operate as res judicata in any subsequent proceeding. The plea of res-judicata presupposes that there is in existence a decree or judgment which is legal but when the judgment is non est in law, no plea of res-judicata can be founded on such a judgment. The plea of res-judicata presupposes that there is in existence a decree or judgment which is legal but when the judgment is non est in law, no plea of res-judicata can be founded on such a judgment. It would be appropriate here to quote the following passage from ‘res-judicata’ (sic) Spencer Bower and Turner, 2nd Edition, page 92 : “Competent jurisdiction is an essential condition of every valid res judicata, which means that, in order that a judicial decision relied upon, whether as a bar, or as the foundation of an action, may conclusively bind the parties, or (in the case of in rem decisions) the world, it must appear that the judicial tribunal pronouncing the decision had jurisdiction over the cause or manner, and over the parties, sufficient to warrant it in so doing.” 11. The judgments relied by learned Counsel for the respondents need to be considered. Learned Counsel for the respondents has relied on Vithal Yeshwant Jathar’s case (supra) in which following proposition has been laid down in paragraph 10 : “10. Before the High Court it was urged on behalf of the tenant-appellant that the earlier decision of that Court, which has been mentioned above, that the order of the Government fixing the rent at Rs. 1,245/4/- was not an order under Section 9 and amounted in law to the sanction of the Government to the grant of a fresh lease at Rs. 1,245/4/- to the former tenant operated as res judicata between the parties. The learned Judges of the High Court have rejected this contention in the view that what the Court said on the earlier occasion was obiter. The correctness of this view is challenged before us by the appellant. It is urged that the fact that another ground was given by the High Court (on the earlier occasion) for its conclusion that the Government order of 1927 could not stand does not alter the position that this ground that the Government order of 1911 was not one under Section 9, sub-section (2) but amounted to a sanctioning of a fresh lease was also decided as a basis for the ultimate conclusion. It is well settled that if the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point – each of which by itself would be sufficient for the ultimate decision–the decision on each of these points operates as res judicata between the parties. (Vide Kishori Lal v. Debi Prasad, AIR 1950 Pat. 50 (Full Bench), Annammalai v. Lakshmanan, AIR 1939 Mad. 433 ).” 12. There cannot be any dispute with the propositions as laid down in the above two judgments of the Apex Court. When the Court decides various issues, there is no reason as to why the adjudication of rights of the parties should not operate as res-judicata in a subsequent suit. However, in paragraph 10 of the Gangappa’s case (supra) the Apex Court has observed that if plaint does not show that notice under Section 80 C.P.C. was served in terms of the said section, it would be the duty of the Court to reject the plaint recording an order and in such a case the Court should not embark upon a trial of all the issues involved. Thus when the suit is barred by any law or does not show any cause of action, the Court need not embark upon deciding of other issues on merits. The Apex Court in above two judgments relied by Counsel for the respondents was not considering the principle of res-judicata in context of a case where earlier Court had no jurisdiction to decide the matter. 13. In the judgment of the Patna High Court in Raghumal’s case (supra) relied by Counsel for the respondents the High Court observed that if in a case two issues one technical and one on merits are involved and if suit fails only on technical issue and issue on merit was not decided, in the subsequent suit decision given earlier dismissing the suit would not operate as res-judicata. However, if both the issues have been tried and suit failed because of the decision in the earlier suit being against plaintiff on both the issues, the principle of res-judicata shall be attracted in subsequent suit. The case before the Patna High Court was not a case where the earlier suit was decided by a Court having no jurisdiction. However, if both the issues have been tried and suit failed because of the decision in the earlier suit being against plaintiff on both the issues, the principle of res-judicata shall be attracted in subsequent suit. The case before the Patna High Court was not a case where the earlier suit was decided by a Court having no jurisdiction. In facts of that case the Court held that principle of res-judicata was not attracted in the subsequent suit. The said judgment also does not help the respondents. 14. In view of the law laid down by the Apex Court, as noted above, it is clear that when suit is dismissed as not maintainable before the Court, which decided the first suit, the decision shall not operate as res-judicata when the Court has no jurisdiction to decide the suit, the decision on merits of the case shall not operate as res-judicata. The civil Court having decided issue No. 3 that suit is barred by Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, clearly the suit was maintainable only in revenue Court and finding on Issue No. 1 regarding private partition between the parties cannot be held to be binding. It is also relevant to note that Issue No. 2 was also decided against the plaintiff that suit does not disclose any cause of action and the plaint is liable to be rejected under Order VII, Rule 11 of C.P.C. Thus on the strength of the judgment of the civil Court it cannot be said that private partition between Shabbir and Kalu to the effect that Kalu was given half share towards the road on western side is proved. Unless the holding is divided both the parties are co-sharer of the plot in question and private partition as claimed by the respondents having been proved in the Court having no jurisdiction, the claim of the respondents cannot be accepted. The Deputy Director of Consolidation in the impugned order has observed that petitioner has purchased the same land on which Shabbir was in possession, hence there is no justification for grant of permission to the petitioner on western side. The Deputy Director of Consolidation has not even found that there was any private partition as claimed by the respondents. The Deputy Director of Consolidation has also noticed the judgment of the civil Court. The Deputy Director of Consolidation has not even found that there was any private partition as claimed by the respondents. The Deputy Director of Consolidation has also noticed the judgment of the civil Court. There being no division of holding by any competent Court and further private partition as claimed by the respondents having not yet been accepted by a competent Court, the refusal of permission to the petitioner on western side cannot be said to be justified, more so without there being any division of holding or decision of the claim of private partition, it is not appropriate to grant permission for construction of abadi. The order dated 22nd November, 2004 by the Settlement Officer of Consolidation was an ex-parte order, which was rightly recalled by the Settlement Officer of Consolidation. It is further relevant to note that an objection under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 for division of holding has already been filed by the petitioner before the Consolidation Officer. It is appropriate that decision be taken on the objection pertaining to division of holding first and thereafter the proceeding for grant of permission under Section 5(1)(c) be undertaken by the Settlement Officer of Consolidation. Ends of justice be served in setting aside the order of Deputy Director of Consolidation dated 28th November, 2005 and the order of Settlement Officer of Consolidation dated 3rd January, 2005 and disposing of the writ petition with following directions : (1) The objection under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 filed by the petitioner before the Consolidation Officer for division of holding be decided by Consolidation Officer after hearing both the parties and after giving opportunity to lead evidence. Parties shall be at liberty to lead evidence to prove private partition on Plot No. 1189 as claimed by them and the Consolidation Officer who shall endeavour to decide the objection regarding division of holding expeditiously preferably within a period of six months from the date of production of a certified copy of this order without granting unnecessary adjournment to either of the parties. (2) The Settlement Officer of Consolidation may consider to pass order under Section 5(1)(c) for grant of permission to construct abadi after objection of division of holding filed by the petitioner is decided. 15. With the aforesaid directions, the writ petition is disposed of. ————