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2008 Supreme(Raj) 608
(Supreme Court)
Honble S.B. SINHA, J. Honble P.P. NAOLEKAR, J.
Dadu Dayalu Mahasabha, Jaipur (Trust) - Appellant
Versus
Mahant Ram Niwas and another - Respondents
Civil Appeal No. 3495 of 2008
Decided On : May 12, 2008
Rajiv Dhawan, Senior Advocate, Sushil Kumar Jain, Puneet Jain, Archana Tivari and H.D. Thanvi for Pratibha Jain, for Appellants; Rajiv Datta, Senior Advocate, Somvir Singh Deswal, Shree Pal Singh and B.K. Satija, for Respondents
Headnote:(a) C.P.C., Sec. 11 – Resjudicata – Claim of entitlement of Gaddi by respondent – Contrary plea raised by the appellant – Held – Once the issue of entitlement is determined, the same should operate as resjudicata. (Para 28)
¼d½ fl-iz-la-] /kkjk 11 iwoZ U;k; & izR;FkhZ }jk ^xn~nh* ds gd dk nkok & vihykFkhZ }kjk foijhr vfHkokd~ mBk;k x;k & vfHkfu/kkZfjr & ,d ckj gd dk fook|d fofufpr dj fn;s tkus ij og iwoZ U;k; ds :i esa izofrZr gksuk pkfg;sA ¼in la[;k 28½
(b) C.P.C., Sec. 11 read with Order 11 Rule 2 – Applicability of principles of res-judicata where entire relief has not been claimed – Order 11 Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first suit. (Para 13)
¼[k½ fl-iz-la-] /kkjk 11 lifBr vknsk 11 fu;e 2 & tgka lEiw.kZ vuqrks"k dk nkok ugha fd;k x;k gks ogkWa iwoZ U;k; ds fl)kUrksa dk mi;kstu & vknsk 11 fu;e 2 nwljs okn dks xzg.k djus esa U;k;ky; dh vf/kdkfjrk dk otZu djrk gS tgka izFke okn esa oknh lEiw.kZ vuqrks"k dk nkok dj ldrk Fkk ysfdu ,slk djus esa foQy jgk gksA ¼in la[;k 13½
(c) C.P.C., Sec. 11 & 12 – Estoppel, Waiver and Resjudicata – All are procedural in nature – They will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure question of law – Sec. 11 only recognizes general principle of resjudicata. Appeal allowed.(Paras 21 & 22)
¼x½ fl-iz-la-] /kkjk 11 ,oa 12 & focU/k] vf/kR;tu vkSj iwoZ U;k; & ;s lHkh izfØ;kRed izd`fr ds gS & ;s ,sls ekeys esa ykxw ugha gksaxs tgka fu.kZ; iw.kZ :is.k vf/kdkfjrk foghu gks ;k fook|dksa esa fof/k dk fokq) gh vUrxZLr gks & /kkjk 11 iwoZ U;k; ds lkekU; fl)kUr dks gh ekU;rk nsrh gSA ¼in la[;k 21 o 22½ vihy Lohdkj dhA
(2). Applicability of the principles of Res Judicata and Order II Rule 2 of the Code of Civil Procedure having regard to an observation made by this Court, is involved in this appeal, which arises out of a judgment and order dated 8th May, 2007 passed by a learned Single Judge of the Punjab and Haryana High Court in Regular Second Appeal No. 4070 of 2005.
(3). Appellant herein is a Public Trust registered under the provisions of the Rajasthan Public Trust Act 1959 and governed by the provisions thereof. Acquisition of a Gaddi and the management thereof was the subject matter of a suit.
Mahant Mani Ram Swami, admittedly was the holder of the said Gaddi.
First respondent claimed himself to be the `Pota Chela of the said Mahant Mani Ram Swami.
(4). Disputes and differences between the parties having arisen as regards succession and management of the Gaddi, first respondent filed a suit in the Court of Senior Sub Judge, Rohtak . It was registered as Suit No. 295/2 of 1964. Another suit was filed by Mahant Mani Ram Sadhu Dadu Panthi which was marked as Suit No. 46 of 1967. The said suits were filed for grant of permanent injunction.
(5). Appellant has claimed its entitlement to the management of the said Gaddi under a Will purported to have been executed by Mahant Mani Ram Swami. The main controversy between the parties, therefore, was which party was entitled to manage the Gaddi at Kalanaur of the said Trust. The matters relating to management of another Gaddi situated at another place, i.e., Makhora, however, is not in dispute.
(6). The learned trial Judge, having regard to the pleadings of the parties inter alia, framed the following issues :-
"1. Whether the plaintiff is the Chela of Lahar Dass and Pota Chela of Mahant Mani Ram?
2. Whether the plaintiff is entitled to succeed to Mahant Nitya Nand according to the custom and law as application to the succession of Nitya Nand as Mahant and owner of property?
3. Whether Nitya Nand made a valid will in favour of defendant No.1? If so, to what effect?
4. Whether the suit lies in the present form?" An additional issue was framed, after the defendant Nos. 3 & 4 were impleaded as parties in the suit, which reads :-
"5-A.Whether defendant No.3 or defendant No.4 was the Chela of the late Mahant Mani Ram and is now the present Mahant of the institution?
(7). The principal issues were decided against the first respondent. The suit was dismissed holdings that he was not entitled to hold or manage the Gaddi in question. An appeal preferred thereagainst, being Civil Appeal No. 89/13 of 1973, was dismissed by the Additional District Judge, Rohtak by his orders dated 2nd January,1973, holding:-
"Nevertheless, there is sufficient evidence to show that Nitaya Nand and Mahant Lahar Dass were the Chelas of Mahant Mani Ram and this appellant is the Chela of Lahar Dass. Mahant Mani Ram used to be the Dohli Dar of certain agricultural lands and after his death the mutation entry Ex.P.13/6 was sanctioned by the revenue authorities on 16.7.1958. Lahar Dass had a predeceased Mahant Mani Ram." It was furthermore held :-
"Therefore, my finding also is that the appellant has failed in improving that he was appointed as the Mahant of Gaddi by the Bhaik in accordance with the prevailing custom and practice. Even the writing in the Bahi showing payments of certain moneys to the members of the at by the Bhaik by the appellant has been withheld."
It was furthermore held :-
"In that connection it is found that the appellant is the Chela of Lahar Dass and that Lahar Dass and Mahant Nitaya Nand were Gurbhai (Chelas of the said Mani Ram). But, that does not come to the aid of the appellant for the reason that he has failed to prove that he was appointed as the mahant by the Bhaik in accordance with the prevailing custom.
In the connection of issue No.3 it is found that although Mahant Nitaya Nand did execute this will, which has been attested by two witnesses in a sound disposing mind he was not compet
