Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 100 OF 2009
(Arising out of SLP (C) No. 10808 of 2006)
HARBANS SINGH & ORS. … APPELLANTS
Versus
SANT HARI SINGH & ORS. … RESPONDENTS
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. The dispute between the parties in this matter is in regard to
management of Gurudwara Sant Bela Sahib Patshahi Naumin (for short,
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“the said Gurudwara”) situated in Village Kajal Majra and in Village
Shergarh Bara. Sant Surjan Singh is the founder of the said Gurudwara. He
had given the right of management of the said Gurudwara to Jagat Singh,
who died in an accident during his life time. On or about 6.5.1982, he
executed a general power of attorney appointing (1) Balu Singh s/o Talok
Singh (Nabardar), (2) Harbans Singh s/o Ram Singh; and (3) Sant Nand
Kaur widow of Jagat Singh as his attorneys in terms whereof they were
conferred the powers to manage the whole of the property of the said
Gurudwara.
Clauses (3) and (4) of the said power of attorney read as under:
“(3) If any member out of these members dies
then can elect another member with the acceptance
of majority. The elected member will have same
rights as these members have. I and the alone
general power of attorney holders will act for
Gurudwara with the acceptance of majority.
(4) After my death the rights given by me to the
alone said member will remain with them (sic).
The contents of the General Power of Attorney
read over and heard are found to be correct. So
the General Power of Attorney is written with
sound mind.”
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3. Sant Surjan Singh died on 2.12.1983. The Managing Committee of
the Gurudwara, however, passed a resolution on 18.12.1983 in terms
whereof one Sant Hari Singh was appointed as Mohtmim of the said
Gurudwara and In-charge of the affairs thereof. Disputes and differences
having arisen between the parties as to who should manage the affairs of the
said Gurudwara, two suits were filed.
4. Sant Hari Singh filed Civil Suit No. 494-T/1995 for permanent
injunction before the Court of Civil Judge (Jr. Division), Fatehgarh Sahib
claiming that he was the Mohtmim of the said Gurudwara and he was in
possession, control and management and enjoyment of the said Gurudwara.
The Managing Committee of the said Gurudwara also filed Civil Suit
No.367-T/1996 for declaration that the Managing Committee was in
management and control of the said Gurudwara and was entitled to manage
and control the same and the respondent was not a Mohtmim of the said
Gurudwara and, thus, not entitled to manage its affairs.
Both the suits were consolidated and directed to be heard together by
an order dated 28.2.1997 passed by the learned trial judge.
5. By reason of a judgment and decree dated 11.5.2000, the suit filed by
Sant Hari Singh was decreed with costs in terms whereof a decree of
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permanent injunction was granted restraining the Managing Committee
from interfering with the possession, management and control of the
respondent over the land of the said Gurudwara, and consequently the suit
filed by the Managing Committee was dismissed with costs.
6. Appellant herein and the Managing Committee of the said Gurudwara
preferred appeals thereagainst.
7. The learned Additional District Judge by a judgment and order dated
16.7.2003 held that the possession of the suit land as also the management
of affairs of the said Gurudwara had vested in Sant Hari Singh, the
respondent herein, in his capacity of a Mohtmim, and, thus, affirmed the
decree for grant of permanent injunction passed by the learned trial court.
The learned Additional District Judge furthermore opined that the revenue
record having not been corrected in regard to the recording of death of Sant
Surjan Singh, the said omission by itself, would not be sufficient to wash off
the remaining entries which had been entered in favour of the respondent. It
was furthermore held that the said power of attorney had ceased to have any
effect after the death of Sant Surjan Singh.
8. Appellants herein aggrieved by and dissatisfied with the judgment
and order dated 11.5.2000 passed by the learned trial court in Civil Suit No.
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367-T/1995 and judgment and order dated 16.7.2003 passed by the learned
First Appellate Court in Civil Appeal No. 62/2000 preferred Regular
Second Appeal bearing No. 4657/2003 before the High Court of Punjab and
Haryana at Chandigarh.
9. By reason of the impugned judgment, the said second appeal has been
dismissed by the High Court, holding:
“ Two appeals being Civil Appeal No. 59 of
24.7.2000 and Civil Appeal No. 62 of 24.7.2000
were filed. One appeal was filed by Harbans
Singh and others claiming that they duly
constituted a Managing Committee and were in
control and management of Gurudwara and its
property. The other appeal was filed by the
Managing Committee. This appeal was also filed
by the Managing Committee, comprising of the
aforesaid persons.
The aforesaid two appeals were dismissed
by the learned First Appellate Court.
The present appellants, who were
defendants in the suit, filed by Sant Hari Singh
have chosen to file the present appeal. No appeal
has been filed in the connected suit. In these
circumstances, it has to be taken that the findings
recorded by the learned trial court as well first
appellate court in the suit filed by the Managing
Committee and others have attained finality and
Hari Singh has been held to be in possession,
control and management of the Gurudwara and its
property. Since the findings recorded in other suit
have attained finality, therefore, the appellants in
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the present appeal cannot be heard (sic) to claim
that the judgments and decree of the courts below
are erroneous in any manner.”
10. Mr. B.S. Chahar, learned Senior Counsel appearing on behalf of the
appellants would contend that the principles of res judicata is not applicable
in the instant case as in the suit filed by the Managing Committee the
appellant was not a party. It was urged that the said principle could have
been held to be applicable only in the event the parties in both the suits were
the same.
11. Mr. P.S. Patwalia, learned Senior Counsel appearing on behalf of the
respondents, however, supported the impugned judgment.
12. Appellant herein does not claim any right, title and interest in his
individual capacity. He was the Vice-President of the Managing
Committee. Thus, for all intent and purport, he was also a plaintiff in Civil
Suit No. 367-T/1996. The judgment and decree passed in the suit filed by
Sant Hari Singh might not have been binding upon the appellant herein had
he claimed any right or interest over the said property in his individual
capacity and not as a member of the Managing Committee. Indisputably,
the Managing Committee did not file any Second Appeal against the
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judgment and decree passed against it. The said judgment and decree,
therefore, attained finality.
13. Both the suits, as noticed hereinbefore, were consolidated. They were
heard together. The disputes between the parties to both the suits were
common. The issues raised therein also were common.
The Managing Committee filed a suit for declaration that it was in
management and control of the said Gurudwara Sahib and was entitled
thereto as also a declaration that the respondent was not a Mohtmim of the
said Gurudwara and, thus, not entitled to manage its affairs. As the said
decree had attained finality, it is binding on the appellants also. Appellants,
therefore, in law, were required to prefer another Second Appeal against the
judgment and decree passed in the said suit. The principle of res judicata in
the aforementioned fact situation, in our opinion, has rightly been applied
by the High Court.
14. Section 11 of the Code of Civil Procedure reads thus:
“Section 11 - 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
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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.”
15. In Premier Tyres Limited vs. Kerala State Road Transport
Corporation [1993 Suppl. (2) SCC 146], this Court held:
“….The question is what happens where no appeal
is filed, as in this case from the decree in
connected suit. Effect of non-filing of appeal
against a judgment or decree is that it becomes
final. This finality can be taken away only in
accordance with law. Same consequences follow
when a judgment or decree in a connected suit is
not appealed from.
5. Mention may be made of a Constitution
Bench decision in Badri Narayan Singh v.
Kamdeo Prasad Singh . In an election petition filed
by the respondent a declaration was sought to
declare the election of appellant as invalid and to
declare the respondent as the elected candidate.
The tribunal granted first relief only. Both
appellant and respondent filed appeals in the High
Court. The appellant’s appeal was dismissed but
that of respondent was allowed. The appellant
challenged the order passed in favour of
respondent in his appeal. It was dismissed and
preliminary objection of the respondent was
upheld. The Court observed,
“We are therefore of opinion that so
long as the order in the appellant’s
Appeal No. 7 confirming the order
setting aside his election on the
ground that he was a holder of an
office of profit under the Bihar
Government and therefore could not
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have been a properly nominated
candidate stands, he cannot question
the finding about his holding an
office of profit, in the present appeal,
which is founded on the contention
that that finding is incorrect.”
In Union of India vs.V. Pundarikakshudu & sons & anr. [(2003) 8
SCC 168], this Court held:
“31. In this case the District Judge as also the
High Court of Madras clearly held that the award
cannot be sustained having regard to the inherent
inconsistency contained therein. The arbitrator, as
has been correctly held by the District Judge and
the High Court, committed a legal misconduct in
arriving at an inconsistent finding as regards
breach of the contract on the part of one party or
the other. Once the arbitrator had granted damages
to the first respondent which could be granted only
on a finding that the appellant had committed
breach of the terms of contract and, thus, was
responsible therefor, any finding contrary thereto
and inconsistent therewith while awarding any
sum in favour of the appellant would be wholly
unsustainable being self-contradictory.”
As no appeal was preferred by the Union of India while accepting the
award made in favour of the first respondent, it had attained finality and,
thus, the principle of res judicata was found to be applicable. It was opined:
“ 35. As the appellant failed to get that part of the
award which was made by the arbitrator in favour
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of the first respondent set aside, the basic
conclusion of the High Court cannot be faulted.
The Court upon setting aside the whole award
could have remitted back the matter to the
arbitrator in terms of Section 16 of the Act or
could have appointed another arbitrator, but at this
juncture no such order can be passed as the award
in part has become final.”
The said decision applies to the facts of the present case also.
16. For the reasons aforementioned, there is no merit in this appeal. It is
dismissed accordingly. No costs.
.……………………………….J.
[S.B. Sinha]
...…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
JANUARY 13, 2009