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"...................... In view of discussion made above I find that the plaintiff is not Sirdar of the land in suit and that it is property of Gaon Sabha."

The suit was dismissed and the decree of the trial Court has been confirmed in appeal.

Sri M.N. Singh, learned counsel for the petitioners, submitted that except plot no.738/3, the other plots are not common and therefore, the contention that the present claim of the petitioners is barred by res judicata is untenable. On a careful consideration, I find no substance in the above argument. The identity of the property is not relevant consideration. Section 11 of C.P.C which deals with the res judicata says that 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 party, litigating under the same title. The important words are "litigating under the same title". All the plots in dispute are situate in village Jagdishpur Chhangan which are recorded as Banzar land in the name of Gaon Sabha in the revenue record. The petitioner laid the claim by filing suit for declaration of his title under section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act on the basis of his long possession and thus, the acquisition of Sirdari right in the land in suit. The same title has been set out before the Consolidation Courts also, giving rise to the present writ petition. The identity of the property may be different.

Although the learned standing counsel submitted that "there is no change in the identity and confusion is being created by legal engineering.", it is not necessary to enter into that controversy, as it has not been gone into by any of the Courts below, but at the same time it cannot be said what the learned standing counsel says is totally incorrect. This observation of mine finds support from the reading of the copy of objection preferred by the petitioners' predecessor in interest Babu Lal, therein plot numbers have been given as 738/4 and 739/5. At what stage and in what manner these came to be controverted as 737/1, 737/2, 738/1 and 738/3 is not clear from the writ record. Be that as it may, the learned counsel for the petitioners could not dispute that the plot no.738/3 is common, in the suit for declaration which was decided against the petitioners and the present proceedings.