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2016 Supreme(Bom) 1795
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Ramanna Amannappa Masare Since deceased through legal heirs – Appellant
Versus
Bhanudas Dagadu Patange – Respondent
Second Appeal No. 148 of 2016 with Civil Application No. 1914 of 2015
Decided On : 21-12-2016
For the Appellants : Mr. Vineet B. Naik and Mr. R.S. Alange.
For the Respondents: Mr. Rajiv Patil, Mr. A.B. Tajane, Mr. P.K. Dhakephalkar and Mr. S.R. Bhalekar.
Headnote:
Whether the principles of res-judicata were attracted to the civil suit filed by Patanges in view of the order passed by the Joint Charity Commissioner in the application filed by Masares and rendering various findings on the right of the parties thereto, i.e. Patanges, Pawars and Masares which findings have been upheld by the District Court, by this Court and by the Supreme Court.
Fact of the Case:
Patanges filed a suit (Regular Civil Suit No. 849 of 1997) against Mr. Vijay Dattarya Pawar and Mr. Ramanna Amannappa Masare inter-alia praying for declaration and injunction. In the said suit, it was the case of the Patanges that the predecessors of the Patanges and Pawars used to perform Pooja as well as to take offerings equally and that the Masares had no interest of any nature whatsoever in the said income. It was the case of the Patanges that the Pawars were working as management trustees and used to look after the management of the temple. A perusal of the record indicates that the Masares had denied the claim of the Patanges and also denied that the Patanges and Pawars or their predecessors used to perform Pooja as well as used to take income received by way of offerings, donation since beginning Masares also denied that they were working as the management trustee only. They denied that the share of the Patanges was agreed as per decree passed in the said suit (Regular Civil Suit No. 1660 of 1933). It was contended by the Masares that except Navratri utsav, the Pawars and Patanges were permitted to perform Pooja and to take offerings for 11 and ½ months. The Masares had placed reliance on the proceedings filed by them before the Charity Commissioner under sections 41A and 41E of the Maharashtra Public Trust Act and various orders passed therein. They placed reliance on the scheme sanctioned by the Charity Commissioner under the provisions of 21(2) and 22(3) of the Maharashtra Public Trust Act. The Masares contended that the suit filed by the Patanges was not maintainable.
Finding of the Court:
The Court held that the order passed by the learned Joint Charity Commissioner, which is confirmed by the order of this Court and the order passed by the Supreme Court, has attained finality and was binding on Patanges and Pawars also. Though the order passed by the Supreme Court was passed dismissing Special Leave Petition filed by Pawars in limine and the order passed by this Court could not have been said to have merged in the order of the Supreme Court, the order passed by this Court dismissing the writ petition and upholding the findings and conclusions drawn by the Joint Charity Commissioner was binding having attained finality. The Court also held that the principles of res-judicata were applicable.
Issues: Whether the principles of res-judicata were attracted to the civil suit filed by Patanges in view of the order passed by the Joint Charity Commissioner in the application filed by Masares and rendering various findings on the right of the parties thereto, i.e. Patanges, Pawars and Masares which findings have been upheld by the District Court, by this Court and by the Supreme Court.
Ratio Decidendi: The Court held that the order passed by the learned Joint Charity Commissioner, which is confirmed by the order of this Court and the order passed by the Supreme Court, has attained finality and was binding on Patanges and Pawars also. Though the order passed by the Supreme Court was passed dismissing Special Leave Petition filed by Pawars in limine and the order passed by this Court could not have been said to have merged in the order of the Supreme Court, the order passed by this Court dismissing the writ petition and upholding the findings and conclusions drawn by the Joint Charity Commissioner was binding having attained finality. The Court also held that the principles of res-judicata were applicable.
Final Decision: The Court set aside the impugned judgment and decree passed by the first appellate Court, Solapur allowing Civil Appeal No. 47 of 2004 and dismissing the cross-objection filed by Masares. The Court dismissed Civil Appeal No. 47 of 2004 filed by Patanges and allowed the cross-objection filed by Masares. The Court upheld the decree passed by the Second Joint Civil Judge, Junior Division, Solapur in Regular Civil Suit No. 849 of 1997 dated 6th January, 2004. The Court dismissed Regular Civil Suit No. 849 of 1997 filed by Patanges.
1. By this appeal filed under Section 100 of the Code of Civil Procedure, 1908, the appellants (original defendant nos. 2A to 2D) have impugned the judgment and decree dated 30th September, 2015 passed by the learned Principal District Judge, Solapur allowing the appeal filed by the respondent nos. 1 to 3 (original plaintiffs) and dismissing the cross objections filed by the appellants and setting aside the decree passed by the learned II, Joint Civil Judge, Junior Division, Solapur and decreeing the suit filed by the original plaintiffs. The first appellate court has declared that the plaintiffs have right to take half share in the income before Goddess Shree Rupa Bhavani Deosthan, Bhavani Peth, Solapur by performing Pooja every alternate week for 11 ½ months and to receive income daily to the extent of half share during the period Navratra Utsav. The appellants (original defendant nos. 2A to 2C) and original defendant no. 1 are restrained from interfering the plaintiffs from performing Pooja and receiving the said income as directed in the said judgment and decree. Some of the relevant facts for the purpose of deciding this second appeal are as under.
2. By consent of parties, the second appeal is heard finally at the admission stage. For the sake of convenience, the original plaintiffs are hereinafter referred to as the Patanges, original defendant no. 1 herein is referred to as the Pawars and defendant nos. 2A to 2C are hereinafter referred to as the Masares). It was the case of the plaintiffs that the suit Deosthan i.e. Goddess Shri Rupa Bhavani Devasthan was established about 150 years ago.
3. It was the case of the Patanges that the ancestors of the Pawars had filed a suit bearing Regular Civil Suit No. 1660 of 1933 against the great grand-father of the original defendant No. 2/Amappa, Ramappa Masare and another in respect of the rights to take the income of the deity Goddess Shree Rupa Bhavani between the plaintiffs and the defendants in the suit property. It was the case of the plaintiffs to the said suit that the plaintiffs therein had 8 Annas share in the income of the said deity and the remaining 8 Annas share income was of the grand-father of the plaintiff nos. 1 to 3 herein. On 5th December, 1934, the said suit bearing Regular Civil Suit No. 1660 of 1933 was compromised. It was the case of the Patanges that in the said compromise arrived at between the parties thereto, it was agreed that plaintiff nos. 1 and 2 in that suit were having ½ share i.e. 8 Annas in the income of the said deity and he should enjoy the same and the defendants in that suit should not obstruct the plaintiffs from the same and the income during yearly festival to be taken by the plaintiffs to the extent of their 8 Annas share.
4. It was the case of the Patanges that in view of the compromise decree, the contention of the Pawars in respect of the 8 Annas share of the grand-father of the Patanges was neither challenged nor denied by the great grand-father of the Masares in the present proceedings before the learned trial judge and the defendant no. 1 in the said Regular Civil Suit No. 1660 of 1933. It is also the case of the Patanges that by the said compromise decree, no right in respect of receiving the income of the said Goddess Shree Rupa Bhavani by the Masares in the said R.C.S. No. 1660 of 1933 was established or decreed nor it was claimed by the Masares in that suit. It is the case of the Patanges that the Masares were not having any right, title and interest or any share in the income of the Goddess Shree Rupa Bhavani during the entire period of one year along with the period of Navaratra Mahotsav commencing from Ashwin Shuddha Pratipada to Kartik Shuddha Pratipada in each year.
5. It was the case of the Patanges that after the death of the mother of the plaintiff no. 1 viz. Sulochana Dagadu Pujari, the Patanges opened her private box and found one original document in Modi script dated 1st December, 1919. They obtained translati
