Harbans Singh &
Ors. Vs. Sant Hari Singh & Ors.  INSC 51 (13 January 2009)
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
S.B. Sinha, J.
dispute between the parties in this matter is in regard to management of
Gurudwara Sant Bela Sahib Patshahi Naumin (for short, 2 "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."
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.
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.
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.
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 4 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.
herein and the Managing Committee of the said Gurudwara preferred appeals
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.
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.
herein aggrieved by and dissatisfied with the judgment and order dated
11.5.2000 passed by the learned trial court in Civil Suit No. 5 367-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.
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.
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 6 the present appeal cannot be heard (sic) to
claim that the judgments and decree of the courts below are erroneous in any
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.
P.S. Patwalia, learned Senior Counsel appearing on behalf of the respondents,
however, supported the impugned judgment.
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 7 judgment and decree passed against it. The said judgment and
decree, therefore, attained finality.
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.
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.
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 8 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
Premier Tyres Limited vs. Kerala State Road Transport Corporation [1993 Suppl.
(2) SCC 146], this Court held:
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 9 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
"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 10 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.
the reasons aforementioned, there is no merit in this appeal. It is dismissed
accordingly. No costs.
[Dr. Mukundakam Sharma]