JUDGMENT : 1. Heard Mr. Keshri Nath Tripathi, Senior Advocate assisted by Mr. Lok Pal Singh and Mr. Tapan Singh, Advocate for the petitioners and Mr. M.C. Bansal, Advocate for respondent nos. 3 to 9. 2. In this writ petition filed by the petitioners two orders dated 22.11.1993 passed by the Consolidation Officer and the other order dated 25.9.1995 passed by the Deputy Director of Consolidation in revision are presently under challenge. All the same, before we come to these orders and the challenge to the legality of these orders, a brief history of the case is necessary. 3. The case has a rather chequered history. The genesis of it is an agreement to sale executed by one Sri K.K.Bhatiya alleging himself to be the Manager and the Power of Attorney holder of the present petitioners. It is alleged by the respondents that an agreement for sale was executed by Sri K.K.Bhatiya in their favour on 12.1.1977 by which about 89 acres of land situated in Tehsil Kashipur, District Nainital (as it was then) was agreed to be given to the respondents on a total consideration of Rs.4,45,000/- out of which at the time of agreement for sale, sale consideration of Rs.3,50,000/- was given by the respondents to Sri K.K. Bhatiya. The respondents came in possession of the present disputed land on the basis of this agreement for sale claimed their possession on the land since 12.1.1977. Four different suits were filed by the plaintiffs seeking injunction against the present respondents, in the year 1978 in the Court of Munsif, Kashipur. During the pendency of the said suits, proceedings under Section 145 Cr.P.C. were also initiated before the concerned authorities and in that proceedings under Section 145 Cr.P.C. an order for attachment was passed for the first time on 12.5.1978. This order for attachment was challenged by one of the present respondents in revision. The said order for attachment was set aside and consequently a revision was preferred by the present petitioners before the High Court of Judicature at Allahabad and following orders were passed by learned Single Judge of Allahabad High Court in that criminal revision on 23.2. 1979. “All these revisions are allowed. The impugned orders passed by the Sessions Judge on 6th June, 1978 are hereby set aside and that of the trial court restored. 1979. “All these revisions are allowed. The impugned orders passed by the Sessions Judge on 6th June, 1978 are hereby set aside and that of the trial court restored. So far as the appointment of receiver to take over charge of the property is concerned, that power cannot be delegated to the Station Officer Kashipur. The Magistrate concerned should himself appoint a suitable person as a receiver during the continuance of the proceedings under section 145 Cr.P.C. The record of the case shall be dispatched to the court below within 2 weeks today to enable speedy disposal of these cases.” 4. In other words, the order of the court below was set aside by the High Court and the order for attachment earlier passed in the said proceeding was revived with the modification that appointment of receiver should not have been left with the police but the court itself should have appointed the receiver. These proceedings under Sections 145 and 146 Cr.P.C. though came to an end by an order dated 27.3.1987 passed by a learned Single Judge of Allahabad High Court. This was done without making any categorical finding on possession as the Hon’ble Court was of the view that between the same parties a suit for title and possession is already pending as a second appeal before the Board of Revenue and it is better that the matter be finally settled there itself. 5. Meanwhile, since the property was under attachment, a suit was filed by the present petitioners before the appropriate forum under Section 229B read with Section 209 of Uttar Pradesh Zamindari Abolition & Land Reforms Act. The claim of the petitioners in the said suit was that they be declared as “Bhumidhars” of the disputed property and though they have specifically denied the possession of the respondents yet an additional relief was sought that in case the Court comes to a finding that the respondents have come in possession of the property the possession be taken away from the respondents and be handed over to the plaintiff. This suit of the petitioners was contested by the respondents as defendants. This suit was dismissed as the trial court upheld the validity of the agreement dated 12.1.1977 - an agreement which was executed by the so called Manger/Power of Attorney holder of the present petitioners, namely, Sri K. K. Bhatiya. This suit of the petitioners was contested by the respondents as defendants. This suit was dismissed as the trial court upheld the validity of the agreement dated 12.1.1977 - an agreement which was executed by the so called Manger/Power of Attorney holder of the present petitioners, namely, Sri K. K. Bhatiya. The trial court also came to the conclusion that on the basis of that agreement for sale the defendants have already come in possession of the disputed property. This order of the trial court was challenged by the petitioners before the Appellate Authority. Their appeal was also dismissed. Aggrieved the present petitioners filed a second appeal before the Board of Revenue at Allahabad. After hearing the parties, the Board of Revenue came to the conclusion that there is no legal validity to the agreement dated 12.1.1977 executed by Sri K. K. Bhatiya in favour of the defendants and that the plaintiffs have always been the “Bhumidhar” of the property, consequently they were declared as such and the Board of Revenue also set aside the orders of the courts below and passed a decree in favour of the present petitioners declaring them as “Bhumidhars”. The learned Board of Revenue came to the conclusion that the first order of attachment was passed on 12.5.1978 in proceedings under Sections 145 and 146 Cr.P.C. Subsequently, when these orders were challenged in revision and thereafter again before the Allahabad High Court the order of attachment had remained intact. In other words, the conclusion of the Board of Revenue regarding “possession” was that the property was in “custodia legis”, although the Board of Revenue while dealing with this aspect in some detail had made observations that the respondents possibly have come in possession of the property inspite of the orders of attachment by appropriate authorities. Thereafter a recall/restoration application was also moved which again was rejected vide order dated 25.10.1996. Thereafter a review application was also filed which was also rejected on 3.12.1992 by the Board of Revenue, Allahabad. Again an application for rehearing of the review petition made which was also dismissed on 7.3.1995. Meanwhile the order of Board of Revenue were challenged by the respondents in a writ petition before this Court being Writ Petition (M/S) No. 4964 of 2001. By an interim order further execution of the order was stayed. Again an application for rehearing of the review petition made which was also dismissed on 7.3.1995. Meanwhile the order of Board of Revenue were challenged by the respondents in a writ petition before this Court being Writ Petition (M/S) No. 4964 of 2001. By an interim order further execution of the order was stayed. Thereafter on 10.12.2010 a learned Single Judge of this Court after hearing both the parties has finally dismissed the writ petition of the respondents by upholding the validity and the findings of the order of the Board of Revenue, inter alia, upholding the findings that the present petitioners are “Bhumidhars” of the property and that the property was in “custodia legis”. Again this order was challenged before the Hon’ble Apex Court. The Hon’ble Apex Court refused to grant leave to petition and their special leave petition was dismissed with an observation that there is no occasion for interfering with a “well reasoned order” of the High Court. 6. Meanwhile, the civil suits instituted by the petitioners for injunction were dismissed by the trial court on 27.10.1986. The appeal filed by the plaintiffs was also dismissed and consequently the second appeal which was filed before the High Court of Judicature at Allahabad and subsequently transferred to this Court was also dismissed by a learned Single Judge of this Court on 31.3.2008. Much reliance has been placed by the respondents on the observations made by the learned Single Judge while dismissing the second appeal, which we shall discuss in a while. 7. Meanwhile, in the revenue village where the disputed land is situated a notification under Section 4 of U.P. Consolidation of Holdings Act, 1953 (from hereinafter referred to as 1953 Act) was issued on 1.6.1991. The purpose of the said Act is to consolidate the scattered holdings of agriculture tenure holders in a village. Once, a notification is issued under Section 4 of 1953 Act, one of the principal effects, with which we are presently concerned, is what is given under Section 5 (2) of 1953 Act, which reads as under: “ 5. Effect of [notification under Section 4 (2). Once, a notification is issued under Section 4 of 1953 Act, one of the principal effects, with which we are presently concerned, is what is given under Section 5 (2) of 1953 Act, which reads as under: “ 5. Effect of [notification under Section 4 (2). – (1)… (2) Upon the said publication of the notification under sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely – (a) every proceedings for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending, stand abated : Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard : Provided further that on the issue of a notification under sub-section (1) of section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated; (b) such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.] [Explanation. – For the purposes of sub-section (2), a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, shall not be deemed to be a proceeding in respect of declaration of rights or interest, in any land.] To put it simply once a notification under Section 4 is published all proceedings regarding a suit, inter alia regarding declaration of right, etc, on a land (which is now under consolidation) shall stand abated. 8. 8. Now when in view of the notification under Section 4 of the Act, proceedings for consolidation began in the village, the present petitioners brought to the notice of the consolidation authorities the fact that in their case the right of the parties have already been determined much prior to the notification under Section 4 of the Act and therefore the consolidation authorities cannot now determine these rights and they are barred to interfere on the principles of “res judicata”. In other words, the consolidation authorities cannot decide the present dispute regarding the title, etc. for the simple reason that the same have already been adjudicated upon and have reached a finality by an order of learned Board of Revenue on 13.6.1990. Simply the contention was that there operates a res judicata on the matter. This contention of the present petitioners was rejected by the consolidation authorities on 22.11.1993. Aggrieved by this order petitioner moved a revision before the Deputy Director of Consolidation which was also rejected on 25.9.1995. While rejecting the contention of the petitioner regarding res judicata, the reasoning given by the consolidation authorities were two folds. First, the order of Board of Revenue dated 13.6.1990 has already been stayed by orders of High Court dated 18.12.1990* and, therefore, the order of the Board of Revenue in any case cannot be brought into effect. Secondly, apart from the order of the Board of Revenue and the findings given by the Board of Revenue, the present respondents claimed right on the disputed property on the basis of their adverse possession. On these two grounds, the contention of the present petitioners requesting the consolidation authority to refrain from adjudicating upon the matter was declined. Aggrieved the present petitioners have filed the present petition before this Court. 9. The only issue which is there before this Court is as to whether under the present facts and circumstances of the case and in view of the protracted litigation between the parties and in view of the decisions arrived by the different courts, including our own High Court and Board of Revenue a res judicata operates on the consolidation authorities or not. * The writ petition though presently stands dismissed and the interim order vacated, reference of which has already been given in the preceding paragraphs. 10. * The writ petition though presently stands dismissed and the interim order vacated, reference of which has already been given in the preceding paragraphs. 10. It is a clear and considered view of this Court that in view of decision of the Board of Revenue dated 13.6.1990 granting the decree under Section 229 B read with Section 209 the Uttar Pradesh Zamindari Abolition and Land Reforms Act, which precedes the date of notification under Section 4 (2) of 1953 Act and the fact that this order was upheld by a learned Single Judge of this Court that not only the title on there is absolutely no doubt that not only the title or the plaintiffs as “bhumidhars” has been upheld but a clear finding has also been given regarding possession on the property, of which we shall come later. Therefore the contention of the respondents is rejected and the findings given by the consolidation authority as well as Deputy Director of Consolidation being totally in violation of the settled principles of law are liable to be set aside. The order of the Board of Revenue did operate as a res judicata upon the authorities and in view of that the authorities should not have proceeded with the matter under the provisions of 1953 Act. 11. The reasons why this Court holds this is for the reasons that the Board of Revenue is the final authority in all matters relating to rights and claims on an agricultural land. It will be worthwhile to elaborate on the concept of “res judicata” although it has been explained enumerable times by the superior courts in their judgments. There is firstly a broad principle of “res judicata”, which is not merely a legal or a technical question of estoppel, but it is a principle based on sound public policy. It is true, however, that before the courts a person may be barred from raising an issue, claim or dispute on principles of “res judicata” and at times on strict technical parameters such as that contained in Section 11 of the Code of Civil Procedure, which has a limited application though it is also based on the principles of “res judicata”. This Court though is of considered view that not only on the broad principles of res judicata but on very strict application of Section 11 of the Code of Civil Procedure, the consolidation authorities were barred and estopped from entertaining the matter which was before them. 12. While giving the reasons as they are being given now, this Court has heavily relied upon two seminal decisions – one of the Lahore High Court in Mt. Lachhmi v. Mt. Bhulli A.I.R. 1927 Lahore 289 Full Bench which was delivered by Justice Tek Chand and the another of the Constitution Bench decision of the Hon’ble Supreme Court in Daryao and others v. State of U.P. and others (1962) 1 SCR 574 delivered by Hon’ble Justice P.B. Gajendragadkar. 13. The Lahore High Court has traced the history of res judicata and has discussed that it is an extremely old concept well understood and applicable in Hindu law as well as in Muhammadan law. In “Mitakshra” Katyayana is quoted as laying down that : “One against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment.” 14. The Muhammadan law givers similarly accepted and well recognized plea of “Niza-i-munfasla” or “Amar Mania taqrir mukhalif”. Tracing it to the Roman law, Justice Tek Chand of Lahore High Court refers to the well known maxims “Nemo debet bis vexari pro eadem causa” (no one should be twice vexed for the same cause) and “Interest reipublicae ut sit finis litium” (It is for the public good that there be an end of litigation). In other words the doctrine of res judicata which is based on sound principles of public policy has been followed, since very ancient times and was known to all known systems of law and jurisprudence. More recently in our times, this was incorporated as such under Section 11 of the Code of Civil Procedure, which reads as follows :- “11. Res judicata. More recently in our times, this was incorporated as such under Section 11 of the Code of Civil Procedure, which reads as follows :- “11. Res judicata. – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 15. Similarly the Hon’ble Apex Court in the Constitution Bench judgment, referred above, while deciding the issue whether once a petitioner has filed a writ petition under Article 226 of the Constitution of India and it has been dismissed can he raise the similar plea in another writ petition before the Hon’ble Apex Court under Article 32 of the Constitution of India, and the Hon’ble Apex Court came to the conclusion that since res judicata itself embodies the principle of public policy which in turn is an essential part of the rule of law, therefore, the objection that the rule cannot be invoked where fundamental rights are in question looses its significance. The Hon’ble Apex Court was of the view that even the remedy under Article 32 of the Constitution of India is barred if the same has already been decided and concluded in another writ petition under Article 226 of the Constitution of India. This conclusion, the Hon’ble Apex Court has drawn for the simple reasons that behind the principles of res judicata is a sound legal policy, as already referred by this Court in two maxims, firstly that “no one should be twice vexed for the same cause” and that “it is for the public good that there be an end and a finality to a litigation. 16. It is true though and as it has been held by the Hon’ble Apex Court on various occasions that the principles contained in Section 11 CPC are not as wide as the principles of res judicata and Section 11 would only be applicable in a proceeding relating to a suit only. 16. It is true though and as it has been held by the Hon’ble Apex Court on various occasions that the principles contained in Section 11 CPC are not as wide as the principles of res judicata and Section 11 would only be applicable in a proceeding relating to a suit only. In other words, though the principles of res judicata may be applicable in a given case, in another, Court has to examine the objections of res judicata in the confined limitation of Section 11 CPC. However, as it has already been referred above, in whichever way we look into the present matter the Consolidation Authorities were barred from proceeding in the present matter, as the learned Board of Revenue vide its judgment dated 13.6.1990 has recorded two findings very clearly – (a) that the appellants/plaintiffs (present petitioners) are the recorded “bhumidhars” of the property and (b) that the land is in “custodia legis” but is liable to be given to its actual owners or “bhumidhars” i.e. the appellants/plaintiffs (present petitioners). The finding of this effect has been confirmed by a learned Single Judge of this Court in Writ Petition (M/S) No.4964 of 2001. The learned Single Judge in Writ Petition (M/S) No.4964 of 2001 filed by respondent nos. 4, 5 and 8 challenging the order of the Board of Revenue, Allahabad dated 13.6.1990 and 25.6.1990, while dismissing the petition has affirmed the finding of the Board of Revenue both on title as well as on possession. Whereas the title has been declared to be with the present petitioners, on possession it has been stated that the property remained in the custody and “supurdagi” on behalf of the Magistrate. Thus it was in “custodia legis” in which categorical finding of the Board of Revenue was that it was always in “custodia legis" and there has been “no change in the position with regard to the possession and custody of the property in dispute on the spot”. As far as the title is concerned, the finding of the Board of Revenue was that the petitioners were always the “Bhumidhars” of the property – a finding which has been affirmed by a learned Single Judge of this Court in Writ Petition (M/S) No. 4964 of 2001. As far as the title is concerned, the finding of the Board of Revenue was that the petitioners were always the “Bhumidhars” of the property – a finding which has been affirmed by a learned Single Judge of this Court in Writ Petition (M/S) No. 4964 of 2001. The learned Single Judge in writ petition (M/S) No. 4964 of 2001 has categorically held that the entire basis of claim of the petitioners (present respondent nos. 4, 5 and 8) was on the basis of the so called unregistered agreement to sale, which according to the learned Single Judge is “simply a waste paper” and is not permissible in evidence and it cannot be held to be a valid document to confer any kind of rights on the party concerned. This the learned Single Judge had said as it had the occasion to examine the veracity of the said document by calling upon the respondents to produce the document in the Court and it came to the conclusion that whereas the original document was never produced the front page of the photo copy does not bear the signatures of either the vender or vendee. Another issue raised before this Court by the respondents is that finding has been given by another learned Single Judge of this Court in Second Appeal No. 590 of 2001, according to which the appellants (present petitioners) have not been able to prove their possession on the property whereas the defendants (present respondents) have proved their possession. This will also give no benefit to the respondents for the simple reason that the final court for the purposes of determination of the rights and title of the parties in the present nature of land is the revenue court and not the civil court. Secondly the civil suit from which the matter finally came before the learned Single Judge of this Court in Second Appeal related to a decree of permanent injunction where the courts were only concerned with the issue of possession and not with the title. Moreover, the issue of possession was only for the grant of injunction alone. Secondly the civil suit from which the matter finally came before the learned Single Judge of this Court in Second Appeal related to a decree of permanent injunction where the courts were only concerned with the issue of possession and not with the title. Moreover, the issue of possession was only for the grant of injunction alone. It is true that two learned Single Judges of this Court have given different finding on possession, yet for the present purposes I am inclined to accept the finding given by the learned Single Judge in Writ petition (M/S) No. 4964 of 2001 and not in Second Appeal No. 590 of 2001, as in the matter which came from the Board of Revenue before this Court the issues were both title as well as possession whereas in the civil suit it was only for limited purpose of grant of injunction. All these aspects in fact have been clearly dealt with by the learned Single Judge in Writ Petition (M/S) No. 4964 of 2001 before whom the matter was also agitated. 17. Therefore, for the reasons discussed above, the orders dated 22.11.1993 passed by the Consolidation Officer and the order dated 25.9.1995 passed by the Deputy Director of Consolidation are hereby set aside. The consolidation authorities are prohibited from proceeding any further with the matter, as the issues have already been determined by a competent court earlier and res judicata operates in the matter. In view of what has already been stated above, a mandamus is also issued to the Collector, Udham Singh Nagar to forthwith handover the possession of the property to the petitioners. 18. Having made the above determination, this Court also feels it just and proper to direct the Collector, Udham Singh Nagar to initiate proceedings against the petitioners under the U.P. Imposition of Ceiling on Land Holdings Act, if he in his wisdom comes to a conclusion that the land now being given to the petitioners will have a surplus. Having so determined he shall take the matter to its logical end by apprising the appropriate authorities. Having so determined he shall take the matter to its logical end by apprising the appropriate authorities. It is made clear that two factors must be determined by the authority before proceeding in the matter – firstly, he must handover the actual, effective and physical possession of the property to the petitioners and only thereafter when and only when he determines that the land is over and above the ceiling limit should he initiate the proceedings against the petitioners, in accordance with law. 19. In the above terms, writ petition stands allowed. 20. No order as to costs. 21. A copy of the order be sent to the District Magistrate/Collector, Udham Singh Nagar by the Registrar General for onward compliance of the order.