JUDGMENT

Anil Kshetarpal, J. (Oral) - In this Regular Second Appeal, an interesting question has arisen for adjudication. The issue that has arisen is, "as to whether the expression "such subject matter" or "such part of claim" used in sub- Rule 4 of Order XXIII Rule 1 of the Code of Civil Procedure, 1908 means the substance of the dispute or the suit property?"

2. In order to comprehend the issue involved in the present case, some relevant facts, in brief, are required to be noticed.

3. The appellant-Punjab Wakf Board filed a suit for the grant of decree of declaration that Masjid/Mosque built in an area of 4606 square feet, being a Wakf property, vests in the Wakf Board. The suit was filed against the defendant No. 1 to 4. It was asserted that after conducting the primary survey the Government of India vide the gazette notification dated 7th August, 1971 notified the mosque as a Wakf property. Subsequently, the defendant No. 1, who executed an affidavit admitting the property to be a Wakf property and undertook not to use the Mosque for purposes not in conformity with the Islamic principles was permitted to use the premises. Subsequently, on 24.01.1985, the property was leased to defendant No. 3, whereas defendant No. 4 was permitted to reside in the property as a licensee. While filing the written statement, defendant No. 3 and 4 admitted the claim of the plaintiff, however, defendant No. 1 and 2 contested the suit. It was submitted that the property is not a Wakf property and even if the property was once a Mosque, the property never used as Mosque as the Muslims of the area migrated to Pakistan.

4. The trial court, on appreciation of evidence, decreed the suit after declaring that the property is a Wakf property and therefore, it vests in the plaintiff. In first appeal, the finding of fact arrived at by the trial court to the effect that it is a Wakf property was upheld. However, the court accepted the appeal after reversing the finding on issue No. 6 with respect to the maintainability of the suit. The First Appellate Court has held that the previous suit filed by the Wakf Board against defendant No. 1's father, was withdrawn on 25th October, 1967. Hence, the subsequent suit is not maintainable.

5. In this appeal, despite service of notices, the respondents have not entered appearance.

6. Heard the learned counsel representing the appellant at length and with his able assistance perused the paperbook alongwith the requisitioned record.

7. Learned counsel representing the appellant submits that on 25th October, 1967, the previously instituted suit was withdrawn as the parties entered into a settlement. He submits that expression "such subject matter" would not denote only the property as such denotion will narrow down the wide interpretation of the expression "subject matter". In support of his submission, he relies upon case titled as 'Jaspal Singh v. Tahel Singh and others' 2018 (2) PLR 58.

8. This Court has considered the submissions made by the learned counsel representing the parties.

9. In the considered view of the Court, the expression "such subject matter" can not be construed in a narrow sense. The expression "such subject matter" means the substance of the dispute, which would include the cause of action as well as the issues involved in the case. For proving such subject matter, the defendants were required to prove the pleadings in the previous suit and the issues involved therein. However, the defendants have failed to prove the pleadings of the previous suit. Only order dated 25th October, 1967 permitting the Wakf Board to withdraw the suit has been proved. Though, a copy of the plaint and the written statement of the previous suit were produced. However, these were never proved and hence, these were not admitted in evidence and exhibited.

10. The Hon'ble Supreme Court has very elaborately discussed the concept of 'same subject matter' in Vallabh Das v. Dr. Madan Lal and others 1970 (1) SCC 761. The relevant