R.S.A.No. 144 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 144 of 2009 (O&M) Date of decision: 13.1.2011 Shaukat Ali and others ......Appellants Versus Banarsi Lal and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.S.Dinarpur, Advocate, for the appellants. Mr.B.S.Saroha, Advocate for respondents No.1 to 9. Mr.Balbir Dosanjh, Advocate, for respondent No.10. **** SABINA, J. Plaintiffs filed a suit for declaration in a representative capacity seeking annulment of civil Court decrees dated 23.3.1987 and 10.8.1998. The case of the plaintiffs, in brief, was that they were followers of Islam and had filed the suit in representative capacity on behalf of the Muslim community of village Buria and surrounding area R.S.A.No. 144 of 2009 (O&M) 2 against the defendants. The suit property was a mosque known as “Masjid Delhi Darwaza” and was being used by the municipal committee for offering prayers etc. since the time immemorial. However, defendant No.1 had illegally occupied the suit property. The plaintiffs were entitled for restoration of the possession of the suit property. Defendant no.1 in his written statement denied the contentions in the plaint. It was averred that the suit property was not a mosque and the defendant had become owner of the suit property by way of adverse possession. Defence of defendant No.2 was struck off vide order dated 15.9.1999. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the suit property is a mosque, known as Mosque Delhi Darwaza and is a wakf property ? OPP. 2. If issue No.1 is proved, whether the plaintiffs are beneficiaries of the above wakf ? OPP 3. Whether the present suit liable to be dismissed on account of principles of resjudicata, as alleged ? OPD 4.Whether the suit is barred by limitation ? OPD 5. Whether the defendant's father's name is Shri Dina Nath and not Mehtam Chand, if so to what effect? OPD 6. Whether the suit is not maintainable in the present form ? OPD R.S.A.No. 144 of 2009 (O&M) 3 7. Whether the suit is bad for non-joinder and mis- joinder of the parties ? OPD 8. Relief. The trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 5.2.2007 being barred by principle of resjudicata. Appeal filed by the plaintiffs was also dismissed vide judgment and decree dated 4.11.2008 passed by the Additional District Judge, Yamuna Nagar at Jagadhari. Hence, the present appeal by the plaintiffs. Learned counsel for the appellants has submitted that the earlier suit had been filed by Hafiz Mohd.Ali and Rafia Ahmed for permanent injunction and the finding recorded by the trial Court that the suit property was not a mosque could not be taken in consideration as in the suit for permanent injunction, no such finding was necessitated. Learned counsel for the respondents, on the other hand, have submitted that in the earlier suit for permanent injunction the nature of the pleadings between the parties required the determination of the suit property as to whether it was a mosque or not. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Section 11 of the Code of Civil Procedure reads as R.S.A.No. 144 of 2009 (O&M) 4 under:- Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.—The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.—For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. R.S.A.No. 144 of 2009 (O&M) 5 Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII- the provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII- an issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.” Issue No.3 was treated as a preliminary issue by the trial R.S.A.No. 144 of 2009 (O&M) 6 Court vide order dated 9.2.2005. Hafiz Mohd. Ali and Rafiq Ahmed had earlier filed suit alleging that they were residents of village Buria and were Muslims by caste. They alleged that the suit property was a mosque and was being used by the Muslims of the village. The suit had been filed by them in representative capacity. In the said civil suit No.138 of 1981, issue No.1 was framed to the effect that as to whether the suit property was a mosque or not . While dealing with the said issue, it was held that the suit property might have been a mosque before 1947 but since the year 1970, the suit property had not been used as a mosque. Rather the same had been used by the defendants for their residence and running the business. Defendant No.1 in the present suit was impleaded as defendant No.1 in the suit filed by Hafiz Mohd. Ali and Rafiq Ahmed. Although earlier suit was filed seeking relief of permanent injunction but it was necessary to determine the nature of the suit property in the said suit and a specific issue was framed in this regard. After appreciating the evidence led on record, the trial Court gave a finding that the suit property was not a mosque and was in possession of the defendants (in the said suit). No other contention has been raised before me. Since in the earlier litigation it had been held that that suit property was not a mosque, the Courts below rightly dismissed the suit of the plaintiffs being barred by principle of resjudicata. The plaintiffs could not agitate the same matter again as to whether the suit property was a mosque or not by filing a fresh suit as the R.S.A.No. 144 of 2009 (O&M) 7 controversy already stood decided. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 13, 2011 anita