A decree passed in a suit under Section 59 of the U. P. Tenancy Act, where the judgment did not contain the points for determination and decision thereon, could not operate as res judicata in consolidation proceedings.

N. D. Ojha, J.

1. THIS writ petition arises out of proceedings under the U. P. Consolidation of Holdings Act. The dispute was in regard to land of Khata No. 77. In the basic year, this land was recorded in the names of the petitioners. An objection was filed by Mahadeo, respondent no. 4 claiming to be a co-tenure holder having a half share. Before the Consolidation Officer respondent no. 4 placed reliance on an exparte decree passed in a suit under Section 59 of the U. P. Tenancy Act on 4th December 1947. The Consolidation Officer took the view that the said decree operated as res judicata and on its basis allowed the objection of respondent no. 4 by his order dated 30th March, 1971. An appeal was filed by the petitioners before the Settlement Officer (C). They also filed copy of an order dated 30th June, 1971 passed by the Sub-Divisional Officer whereby the suit under Section 59 in which the ex-parte decree relied on by respondent no. 4 had been passed was abated under Section 5 of the U.P. Consolidation of Holdings Act. It appears that on coming to know of the ex-parte decree, the petitioners made an application for setting aside the ex-parte decree and also brought to the notice of the Sub-Divisional Officer that the village where the land in dispute is situate had been brought under consolidation operations and it is on the basis that the order dated 30th June, 1971 was passed. The Settlement Officer (G) however, dismissed the appeal on 9th August, 1971. The revision filed by the petitioners against that order was dismissed by the Deputy Director of Consolidation on 2nd November, 1971. It is these orders passed by the Consolidation authorities which are sought to be quashed in the present writ petition.

2. IT was urged by the learned counsel for the petitioner that when a copy of the order dated 30th June, 1971 passed in the suit under Section 59 of the U. P. Tenancy Act, where the said suit was abated under Section 5 of the U.P. Consolidation of Holdings Act was produced before the Settlement Officer (C) it was incumbent upon him to have decided the dispute between the parties on the basis of evidence produced in the case and not on the ground that the decree passed in suit under Section 59 operated as res-judicata on the other hand. IT was urged by the learned counsel for the respondent no. 4 that the order dated 30th June, 1971 was subsequently set aside. Reliance was placed on paragraph 8 of the counter affidavit in this behalf. In the rejoinder affidavit, it has been stated that subsequently an order was passed on 3rd April, 1974 whereby the exprate decree dated 4th December, 1947 passed in the suit under Section 59 was specifically set aside and the suit was restored to its original number and that on the same date and by the same order. The suit was abated under Section 5 of the U. P. Consolidation of Holdings Act. A copy of that order has also, been filed along with the rejoinder affidavit. In my opinion it is not necessary to consider the effct of the order dated 30th June 1971 being subsequently set aside as also of the order dated 3rd April, 1974 being passed inasmuch as it is apparent that the decree dated 4th December, 1971 could not even otherwise operate as res-judicata. The only judgment which was delivered in the suit under Section 59 was as quoted in paragraph 11 of the writ petition to the following effect : " Defendant absent. Service satisfactory. I give ex-parte decree to the plaintiff. Cost easy."

Order XX Rule 4 of the Code of Civil Procedure provides :

"4. (1) Judgment of a court of small causes need not contain more than the points for determination and the decision thereon. (2) Judgments of other courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reason for such decision."

3. THIS provision applied even to a suit under Section 59 of the U. P. Tenancy Act. Such of the provisions of the Code of Civil Procedure which did not apply