Case: Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas

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 issuesWhether 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 presentadditional issue was framed, after the defendant Nos. 3 & 4 were impleaded as parties in the suit, which reads:defendant No.3 or defendant No.4 was the Chela of the late Mahant Mani Ram and is now the present Mahant of theThe 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 there against, being Civil Appeal No. 89/13 of 1973, was dismissed by the Additional District Judge, Rohtak by his orders dated 2nd January, 1973, holding: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 Maniwas furthermore held: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 beenwas furthermore held: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 competent to execute such a will because his interest in the properties was limited by the period of tenure of the office of Mahant of thethe finding of the trial court on issue No.4 was reversed.8. A second appeal was preferred there against before the High Court which was registered as Regular Second Appeal No.800 of 1973. The High Court allowed the purported register of the `Bhaik to be produced as additional evidence. It entered into the merit of the matter and held asoral evidence produced by the plaintiff to prove this fact in the Trial Court, was discussed by the lower Appellate Court as well, but as observed earlier, the lower Appellate Court did not believe those witnesses because all of them had stated that such a writing was made in the register when the plaintiff was appointed as Mahant and that writing was attested by some of the members of the Bhaik, yet the same was not produced in the Trial Court. Thus their testimony was never disbelieved as such. Because of the non-production of the writing Exhibit PW 14/A the finding was given against the plaintiff by the two Courts below. Since this Court allowed the additional evidence to be produced in this Court and the said writing has been duly proved, the findings of the Courts below under issue No.1 are liable to be set aside.The matter came up before this Court by way of Civil Appeal No. 299 of 1987 (arising out of SLP ) No. 7600 of 1983) and by a judgment and order dated 2nd February, 1987 a Division Bench of this Court allowed the said appeal statingleave granted. The appeal is heard. Since the High Court has not and could not have in the circumstances of the case reversed the finding of the trial court and the First Appellate Court that the plaintiff was not in possession of the suit property on the date of the filing of suit, it could not have reversed the decree passed by the First Appellate Court and made a decree for injunction for which suit has been brought. We, therefore, set aside the judgment and decree of the High Court and restore the judgment and decree of the First Appellate Court. This judgment will not come in the way of the plaintiff/respondent filing a suit for possession, if he is so advised.Relying on or on the basis of the said observation made by this Court, the second round of litigation began.11. In the fresh suit, the first respondent also impleaded `Gaddi Dadu Dawara Kalanur through himself as the second plaintiff. Appellants were arrayed as defendants. In the said suit a decree for possession of the properties mentioned in paragraph 5 of the plaint (consisting of 15 items of properties) was prayed for.12. The learned trial judge by his judgment and order dated 11th February, 2003 opined that the said suit was barred by the principles of res judiciata, the issues arising therein being directly and substantially in issue between the parties in the previous suit as well. It dealt with in details as to how the causes of actions in both the suits were the same. Respondents preferred an appeal there against. The first appellate court, however, by its judgment and order dated 27th November, 2005 reversed the judgment and decree of the trial court holding that neither the principles of Res Judicta nor Order II Rule 2 of the Code of Civil Procedure were applicable in view of the observations made by this Court in the aforementioned order of this Court dated 2nd February, 1987.13. An appeal was preferred there against by the appellants. The High Court by reason of the impugned judgment has allowed the said appeal holding:the previous suit was suit for injunction. In the said suit finding was returned by the trial Court that the plaintiff has failed to prove the ownership and possession and, thus, the suit for injunction was dismissed. Such finding was affirmed in appeal as well. This Court in second appeal reversed the findings recorded by the learned first Appellate Court after admitting additional evidence and held that the plaintiff is in possession of the suit property. In the said circumstance, above said order of Honble Supreme Court was passed whereby judgment and decree passed by the High Court was set aside and liberty was given to the plaintiff to file a suit for possession. A perusal of order passed by the Honble Supreme Court shows that the finding that plaintiff was not in possession in a suit for injunction recorded by this Court was set aside and, therefore, it was clarified that the judgment of the Court will not come in the way of the plaintiff to file a suit for possession. Meaning thereby in a suit for possession, the plaintiff could establish his title. The order of Honble Supreme Court has to be read in its entirety. Once it is ordered that the judgment will not come in the way for suit for possession, the suit for possession could not be dismissed on the basis of previous judgment in a suit for injunction."

Reasoning:
19. The judgment of a court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case.We, however, are not unmindful of the principles of estoppel, waiver and res judicata, are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play. However, once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply.23. Similarly the provisions of Order II 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 one. We need no go into the legal philosophy underlying the said principle as we are concerned with the applicability thereof.Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi vs. G. Alex and another : (2004) 8 SCC 569 ) & Hardesh Ores (P) Ltd. vs. Hede and Company :2007 (5) SCC 614 ).35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsels fee assessed at Rs.25,000/- (Rupees Twenty Five Thousand only).