R.S.A.No.2884 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2884 of 2000 Date of Decision : 24.08.2009 Lahori Ram and others ...Appellants Versus Shiwala L. Ram Ditta Mal and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. O.P.Hoshiarpuri, Advocate, for the appellants. Mr. Naveen Mahajan, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) The defendants are in second appeal aggrieved against the judgment and decree dated 2.2.2000 passed by the learned first Appellate Court, whereby the suit for rendition of accounts from 1967 till the date of the income of Shiwala Lala Ram Ditta Mal of Kartarpur, District Jalandhar, was decreed in appeal. It was pleaded by the plaintiff-respondents that Shiwala owned about 35 acres of land situated in Villages Kartarpur, District Jalandhar and that the said Shiwala is being managed by the plaintiffs, as its managers. Defendant No.1 Rakha Ram and deceased Shiv Charan Dass, have used the money of Shiwala for their own use and have also sold the land, which was ownership of Shiwala, without any interest and also R.S.A.No.2884 of 2000 2 recovered rent from the tenants of the Shiwala. It was claimed that the defendants have misappropriated the said amount and that they are liable to render account from 1967 till date. The learned trial Court dismissed the suit holding that the property in dispute is a private property of the alleged managers of the plaintiff-Shiwala and that of the defendants and, therefore, there cannot be any decree for rendition of account. However, in appeal the said finding was set aside. It was held that once the land has vested in the Shiwala, then the parties had no right to sell that land for their own use. The temple is juristic person capable of holding immoveable property. It is admitted by the defendants that the land in dispute stands in the name of the Shiwala and, thus, was not a private property of the parties after the death of their common ancestors though mutations might have been sanctioned in their favour. Since, both the parties were found to be deriving benefit of the land of Shiwala, both were held to be accounting parties and, consequently, the suit was decreed. The entire argument of the learned counsel for the appellants is based upon the judgment and decree dated 12.10.1985 in a previous suit filed by Shiwala Ram Ditta Mal, Kartarpur, District Jalandhar challenging the sale deeds effected by some of the defendants. It is contended that the said suit was dismissed holding that the property is a private property, therefore, such findings recorded in the previous suit operate as res-judicata in the present suit. Such judgment is sought to be produced in evidence in second appeal by way of an application for permission to lead additional evidence. R.S.A.No.2884 of 2000 3 Learned counsel for the appellants has admitted that in the written statement filed in the present suit, no plea of res-judicata has been raised. It is not pleaded that there was earlier a suit filed by the plaintiffs herein, challenging the sale deeds as well. In the absence of any pleading of res-judicata in the written statement in the present suit, the judgment and decree in the previous suit cannot be permitted to be produced by way of additional evidence in second appeal. The appellants have failed to raise any pleading and also to lead the evidence, when the defendants were leading evidence before the trial Court in respect of the previous proceedings. Consequently, I do not find any justification to allow the application for permission to lead additional evidence. The learned first Appellate Court has rightly found that the property stands in the name of Shiwala, thus, it is a property of temple and that such property could not be sold by either the Managers of the plaintiff-Shiwala or the defendants. In view of the above, the findings recorded by the learned first Appellate Court cannot be said to be suffering from any patent illegality or irregularity, which may give rise to any substantial question of law for consideration by this Court in second appeal. Dismissed. 24.08.2009 (HEMANT GUPTA) Vimal JUDGE