JUDGMENT :

Misra, J.

The present appeal by special leave is directed against the judgment of the High Court of Allahabad dated 28th October, 1971.

2. One Ganga Singh had three sons, Kishan Singh Natha Singh and Guman Singh. Kishan Singh had no issue while Natha Singh had three sons, Chajju, Rambir and Malkhan Singh Guman Singh had two sons, Sohan Singh and Rohan Singh Kishan Singh was possessed of some agricultural land and also a house. It appears that the village where the agricultural plots of Kishan Singh were situate was brought under consolidation operations and the rights and title of Kishan Singh were determined in those proceedings and eventually chak No. 14 was allotted to him. The consolidation proceedings start with a notification under Section 4 of the U. P. Consolidation of Holdings Act and comes to an end with a denotification under Section 52 of the Act Although the notification under Section 52 had not been issued but the statement of proposals (allotment of chak) had been confirmed under Section 23 of the Act.

3. Kishan Singh at this stage died without leaving any issue and a dispute arose about his heirship. Malkhan Singh son of Natha Singh claimed to be an adopted son of Kishan Singh and on that basis claimed to inherit the interest of Kishan Singh while Sohan Singh and Rohan Singh claimed to inherit the interest of Kishan Singh along with Chajju, Rambir and Malkhan Singh. The consolidation authorities after taking evidence, both the oral and documentary, came to the conclusion that Malkhan Singh was not the adopted son.

4. When the village was denotified under Section 52 of the Act and the consolidation operations came to an end, Malkhan Singh filed a suit in respect of the agricultural plots as well as the house left by Kishan Singh alleging that he was given in adoption by his mother, wife of Natha Singh to Kishan Singh and Kishan Singh took him in adoption on 9th June 1946 with all the formalities of giving and taking and datta-home. He also executed a deed of adoption on 29th November, 1948 in proof of adoption. The suit was contested only by defendants Nos. 1 and 2, Sohan Singh and Rohan Singh. The other defendants Rambir Singh and Chajju, sons of Natha Singh did not contest. Their defence in the main was that the plaintiff was not the adopted son of Kishan Singh that the court had no jurisdiction to try the suit and that the suit was barred by Section 49 of the Act and also by Section 42 of the Specific Relief Act. The plea of jurisdiction and bar of Section 49 of the Consolidation Act were not pressed by the defendants. The issue of adoption was decided against the plaintiff. The bar of Section 42 of the Specific Relief Act was also negatived. On these findings the plaintiffs suit was dismissed by the trial court. On an appeal the Civil and Sessions Judge reversed the finding of the trial court and decreed the suit holding that Malkhan Singh was the adopted son of Kishan Singh and that he was given in adoption by his mother after the death of her husband Feeling aggrieved the defendants took up the matter to the High Court in second appeal and the High Court in its turn allowed the appeal and dismissed the suit on a short ground that the suit giving rise to appeal was barred by the principles of res judicata as the question, of adoption had already been determined by the consolidation authorities during consolidation proceedings and that decision could not be upset by any other court as provided by Section 49 of the said Act and the earlier decision of the consolidation authorities would operate as res judicata on general principles. In the view that the High Court took it did not decide the question of adoption. The plaintiff has now come to this Court by special leave as stated earlier.

5. Shri J. P. Goyal appearing for the appellant contended that the High Court had carved out a new case for the defendants which was not their case in the written statement. Elaborating the argument the counsel urged tha