RSA No.2015 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2015 of 2007 (O&M) Date of Decision: 15 - 9 - 2011 Usha Devi etc. ....Appellants v. Municipal Corporation, Ludhiana and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.K.S.Boparai, Advocate for the appellants. Mr.Aman Bansal, Advocate for respondent No.1. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) In CM No.5681-C of 2007 For the reasons stated in the application, same is allowed subject to just exceptions. RSA No.2015 of 2007 Plaintiffs having lost in two rounds of litigation, have approached this Court, by instituting the present Regular Second Appeal. Briefly stated, the facts of the case are that plaintiff-Beas Chand, who is now being represented by his legal representatives, had preferred a suit for declaration that he is in exclusive owner of property No.B-IV-2015 and defendant No.1 – Municipal Corporation, Ludhiana had no right to mutate the said property in the name of Sanatan Dharam Sabha in the records of rights maintained by the Municipal Corporation and by RSA No.2015 of 2007 [2] changing the ownership of the property, plaintiff has been divested of the ownership and act of the Municipal Corporation is illegal, null and void and ineffective. Further mandatory injunction was sought that defendant No.1- Municipal Corporation should incorporate name of the plaintiff as owner in its record. A perusal of head note of the prayer clause leaves no doubt that declaration was sought qua property No.B-IV-2015. The lower Appellate Court had dismissed the appeal relying upon an earlier judgment, Ex.DX, wherein it was specifically held that property No.B-IV-2015 situated in Chaura Bazar, Ludhiana is owned by the temple and the plaintiff herein, as also plaintiff in the earlier suit was only a Shebait of the property. The findings returned by the lower Appellate Court in para 18 of the judgment under challenge read as under:- “18. I have gone through the judgment passed by the Sub Judge, which is Ex.PW8/14, in which, it has been pleaded by the present plaintiff/appellant that he is the absolute owner in possession of the property No.B-IV-2014 and B-IV-2015 situated in Chaura Bazar, Ludhiana. That suit of the plaintiff was decreed and in appeal no.502/164 of 1980 arising out of the above discussed judgment, the Ld. Additional District Judge, vide his judgment Ex.DX has held in the operative part of the judgment that in this view of the matter, both the properties No.2014 and 2015 are a part of the temple, which is a public religious endowment and the plaintiff cannot claim any right as owner thereof because he is only a Shebait of the property and in possession of dedicated property in that capacity. This judgment of Ld. Additional District Judge operates as a resjudicata as it has been clearly held vide judgment Ex.DX that properties No.B-IV-2014 and B-IV-2015 are the ownership of temple. The plaintiff is only a `Shebait' of the property and in possession of dedicated property in that RSA No.2015 of 2007 [3] capacity.” It is not disputed that Beas Chand predecessor-in-interest of the present appellants had earlier filed a suit praying therein that he is absolute owner of the properties No.B-IV-2014 and B-IV-2015 situated in Chaura Bazar, Ludhiana and on the basis of same he had sought a decree for permanent injunction restraining the defendants therein from interfering in his peaceful and rightful enjoyment and user of the property. It is not in dispute that the judgment, Ex.DX, passed in appeal by the Court of Additional District Judge, Ludhiana had attained finality. Mr.K.S.Boparai, learned counsel appearing for the plaintiff- appellants has assailed the judgment of the lower Appellate Court on the following grounds:- (1) That a perusal of para 26 of the judgment, Ex.DX, if read as a whole, reveals that the shop on the southern side and opening in the Chaura Bazar and another shop on the western side thereof are not part of the dispute. Therefore, counsel states that this Court should dissect the categoric findings and say that the finding qua property No.B-IV-2015 were erroneous. (2) That in the present suit, a specific averment has been made that the property in dispute which is shown in red colour in the site plan, was not subject matter of the earlier suit. (3) That the lower Appellate Court has dismissed the appeal by only holding that the subsequent suit was barred by the principle of res judicata and on the remaining issues, no finding has been returned. (4) That earlier suit filed was for permanent injunction and no declaration qua the property was sought, therefore, any finding returned in RSA No.2015 of 2007 [4] the earlier suit in view of the judgment rendered by the Hon'ble Apex Court in Williams v. Lourdusamy and another, (2008)5 SCC 647 shall not operate as res judicata. (5) That in the earlier suit Municipal Corporation was not a party, therefore, no reliance could be placed upon the earlier judgment. I have given due consideration to the above-said arguments which have been pressed into service, for setting aside the judgment of the lower Appellate Court. I am unable to substantiate to the arguments advanced for the following reasons:- So far as the first argument is concerned, a perusal of the judgment, Ex.DX, reveals that in the concluding part, the Court in a very emphatic terms has stated “In this view of the matter both the properties no.2014 and 2015 are a part of the temple which is a public religious endowment and the plaintiff cannot claim any right as owner thereof because he is only a Shebait of the property and in possession of the dedicated property in that capacity.” The earlier suit in which judgment, Ex.DX, was rendered, was also qua properties No.B-IV-2014 and B-IV- 2015. Therefore, it was held by the Court that shop on the southern side and opening into the Chaura Bazar and also another shop on the western side do not seem to be in dispute. Therefore, the dispute was qua properties No.B- IV-2014 and B-IV-2015 and qua the disputed properties answer was that they belong to the temple and the present appellants were not owner of the same. Second argument raised by the counsel cannot be entertained, as the dissection of the property shown in the site plan attached with the plaint, is only a camouflage created to wriggle out of the finding given in RSA No.2015 of 2007 [5] the earlier suit. Neither any evidence in support thereof has been led nor any serious argument was raised before both the Courts below and, therefore, the trial Court had rightly held that it does not lie in the mouth of the plaintiff to say time and again that he is owner of property No.B-IV- 2015. There was no question at that time that property No.B-IV-2015 is in two parts and it is another part which vests in the temple. So far as third argument raised by Mr.Boparai is concerned, a perusal of the judgment of the trial Court reveals that following issues were formulated:- 1. Whether the plaintiff is the exclusive owner of the property No.B-IV-2015, Chaura Bazar, Ludhiana? OPP 3. Whether the order dated 13.3.1987 passed by Municipal Corporation, Ludhiana, changing the ownership of building No.B-IV-2015, Chaura Bazar is illegal, void, ineffective and is liable to be set aside? OPP 3. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP 4. Whether the suit of the plaintiff is not maintainable as alleged in para no.2? OPD 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 6. Relief. Issues No.2 and 3 revolve around issue No.4. In the earlier suit, in which judgment, Ex.DX, has attained finality, the question was that who is owner of property No.B-IV-2015. In view of the answer given in the earlier judgment, Ex.DX, decision on issue No.4 will render all other issues insignificant. Therefore, other issues being ancillary pail into insignificance, once it was held that in the earlier judgment, Ex.DX, it has been held that property No.B-IV-2015 belonged to temple. RSA No.2015 of 2007 [6] To appreciate the fourth argument raised, it will be necessary to see that as to what were the issues formulated in the earlier round of litigation. A perusal of the judgment, Ex.DX, reveals that in that round of litigation, the following issues were framed by the trial Court:- 1. Whether the plaintiff is the owner in possession of the property in dispute? 2. Whether the property in dispute comprises of a Shivala and enshrines with deities worshiped by the general public as of a right? 3. Whether the property in dispute stands dedicated to aforesaid deities? If so, its effect? 4. Whether the suit is bad for non-joinder of necessary parties? 5. Whether the plaintiff is entitled to the injunction prayed for? 6. Relief. Thus, issue No.1 assumes importance. In the earlier litigation, a specific issue was framed that as to whether the present plaintiff-appellant is owner in possession of the property in dispute or not? A categoric finding was given that plaintiff is not owner in possession of the suit property. A perusal of the judgment rendered in Williams's case (supra) reveals that same is not attracted to the facts of the present case. In Williams's case (supra) it was held that in a suit for permanent injunction, validity of agreement to sell was in issue. Once, in the earlier suit, it has been specifically held that the parties led their evidence and raised the contentions regarding ownership of the property in dispute, the Court held that plaintiff-appellants are not owner in possession of the property. Therefore, the judgment relied upon by counsel for the appellant is not attracted to the facts of the present case and findings of the lower Appellate RSA No.2015 of 2007 [7] Court suffer from no infirmity. The last argument raised by counsel for the appellants, at the out set, is rejected being not tenable. Plaintiff in the earlier suit failed to prove himself as owner of the property. By change in the name of the respondents, the title of the property will not undergo any change. Plaintiff in the earlier suit having availed all opportunities, has failed to prove himself as owner of the property in question. Therefore, it cannot be said that since Municipal Corporation, Ludhiana was not a party in the earlier lis, therefore, in this round of litigation, he should be declared as owner of the property. Mr.Aman Bansal, learned counsel appearing for respondent No.1 – Municipal Corporation has stated that based on the earlier judgment, Ex.DX, records of rights were corrected and, therefore, the municipal authorities had only acted in consonance with the findings returned in the earlier suit. Taking into consideration the arguments raised, noticed and dealt with above, this Court is of the view that no interference is warranted, especially when the questions formulated by the counsel, in the opinion of this Court are not substantial. Hence, the present appeal is dismissed. Since the appeal itself has been dismissed, no orders are required to be passed on the application seeking condonation of delay. ( KANWALJIT SINGH AHLUWALIA ) September 15, 2011. JUDGE RC