S.S. Dhavan, J. - (1.) THIS second appeal raises an important question which may be stated thus: does the judgment of the High Court in Second Appeal operate as res judicata against a person who was not a party to the suit nor in the subsequent appeal before the lower appellate court, but who, after the filing of the Second Appeal in the High Court, applied to be added as a co -Appellant on his own application if so, to what extent? It is necessary; to state in detail the facts which have led to this appeal. The present Plaintiff Appellant mortgaged the plot of land in dispute to a man called Dwarka Dass who became the usufructuary mortgagee. He filed a suit against the Municipal Board, Mathura for possession alleging that the Board had constructed an unauthorised tin -shed and 'Kha ranja' over the plot. The owner -mortgagor was not made a party to the suit. One of the issues framed by the trial court in that suit was whether the land in dispute belonged to the Plaintiff and another whether the property in the land vested in the Defendant Municipal Board. It held, after an assessment of such evidence as was led before it, that the property in the land vested with the Municipal Board and that the Municipal Board had the authority to raise structures on the land which was held to be a public street. On appeal by the usufructuary mortgagee the District Judge confirmed the finding that the land in dispute was a public street and therefore vested in the Municipal Board. It further held that under Section 116 of the Municipalities Act all public streets vested in the Board which had every right to raise structures in dispute. He accordingly dismissed the appeal. The mortgagee filed a second appeal to the High Court. During the pendency of the appeal, the owner -mortgagor (the present Plaintiff -Appellant) redeemed the mortgage, with the result that the interest of the mortgagee in the land in dispute was extinguished. He then took a step which as events subsequently turned out, proved to be ill -advised. He made an application in the High Court for being added as Appellant No. 2 in the second appeal which was pending. In his affidavit supporting this application he stated that the mortgage in favour of the mortgagee -Appellant had been redeemed by him, that he had obtained possession of the entire mortgaged property and that it was therefore necessary that his name should be added as an Appellant. This application was allowed by this Court. Subsequently, the second appeal itself was dismissed by a Division Bench of this Court by their order dated 12 -3 -1945. It was held that the finding of the court below that a portion of plot No. 564 had been used by the public as a Rasta -Am must be accepted and therefore this portion was a "public street" within the meaning of Section 2(19) of the UP Municipalities Act and the Municipal Board were entitled to raise the structures complained of. The appeal was dismissed. The judgment is a very brief one and the array of parties at the head of it is described as Dwarka Dass Plaintiff -Appellant v. The Municipal Board Mathura Defendant -Respondent. As the entire case of the Defendants in the present appeal on the question of res judicata is based on this judgment, it is necessary to quote it verbatim. Their Lordships observed: Having heard learned Counsel for the parties, we have come to the conclusion that there is no force in this appeal. The suit was brought by the Appellant for the demolition of a structure which the Municipal Board have put up on a portion of a plot which has been described as plot No. 564. It has been found by both the courts below that the Plaintiff is, or was at the time of the suit, a usufructuary mortgagee of the plot in question. Both the courts have, however, found that a portion of this plot, namely, an area of 36 acre, lying outside a grove or garden which has been described as a Baghichi and which is enclosed within a boundary wall, has been used as a Rasta -Am by the public. The courts below, further, agreed in finding that this portion of plot No. 564 namely the area of 36 lying outside the Baghichi - -was a "public street" within the meaning of that expression as defined in Section 2(19) of the UP Municipalities Act (II of 1916). It appears to us that this finding must, in 11 the circumstances for this case, be accepted. That being so, the Municipal Board were entitled to put up the structure complained of, which is a tin -shed designed to afford shelter to conveyances on that and neighbouring roads. It is sufficient, in our opinion, to refer to the decision of their Lordships of the Privy Council in Man Singh of Sewai Jaipur His Highness Maharaja v. Arjun Lal and Ors., (1937) AWR 829. The question whether this tin -shed will at various times be used for the most part by traffic passing, along one road or another is, in our opinion, immaterial. In our judgment the decision at which the courts below have arrived is correct. The appeal is without force and is dismissed with costs. Dated: 12 -2 -1945.
(2.) SEVERAL features of this judgment are noteworthy. The Appellant is described as "a usufructuary mortgagee of the plot in question". The name of the owner -mortgagor (the present Appellant) does not figure in the judgment at all. It does not appear from this judgment that the owner -mortgagor was in the mind of the High Court at all at the time of delivering this judgment in S.A. No. 1624 of 1940 Dwarka Dass v. The Municipal Board, Mathura. In any case the Appellant had no opportunity at the hearing of the suit to rebut the evidence of the Municipal Board nor to impugn before the appellate court the trial court's assessment of this evidence. On or about, 19 -2 -1946 the owner -mortgagor Badri Das (the Plaintiff -Appellant in the present second appeal) filed his suit against the Municipal Board, Mathura for possession over the same land in dispute. In it he alleged that he had previously mortgaged the plot to Dwarka Dass who instituted a suit for possession of the land under tin shed only...in paragraph 8 of his plaint he alleged that the aforesaid mortgagee Dwarka Dass "colluded with the Defendant No. 1 (The Municipal Board) and in consequence grossly neglected the conduct of the case with the result that the suit was ultimately dismissed". The Municipal Board contested the suit and as regards the plot in dispute, set up the judgment in the previous second appeal as res judicata against the present Appellant. The learned Munsif upheld this plea on the ground that the Plaintiff was a party to the previous suit. In describing him as "a party", he obviously relied upon the fact that the Plaintiff -Appellant had been added as an Appellant at the second appeal stage. He therefore held that the decision in the previous suit barred the present suit in respect of the tin -shed and the 'Kharanja' constructed by the Municipal Board. On appeal the learned Second Additional Civil Judge Mathura, upheld the findings of the trial Court and held that the decision in the previous suit operated as res judicata against the Plaintiff -Appellant in the present dispute. He observed, inter alia, The broad point is - -whether an appeal is included in the word used in Section 1 Code of Criminal Procedure or not. The learned Counsel for the Appellant argued out that the word used in Section 11 is suit not an appeal, hence the decision in an appeal against a person who was not party to the original suit should not operate as res judicata. He has, however, not been able to cite any direct authority on this proposition, it should be noted matter the redemption of the mortgage deed Lala Dwarka Dass had left no interest in the property in dispute and all his interest in the Second Appeal was in respect of the cost of the litigation. Therefore, the second appeal must have failed on merits, if Badri Dass would not have been allowed to prosecute it. Lala Dwarka Dass was prosecuting the appeal, or for the matter of that, the suit No. 209 of 1938, in his capacity as mortgagee. Lala Badri Dass prosecuted the second appeal as the proprietor of the property. The right of a full proprietor consisted in that case of the equity of redemption and the right of a mortgagee. Therefore, Lala Badri Dass possessed in him all the rights which Dwarka Dass had possessed plus the right to the equity of redemption. It will thus follow that Badri Dass was prosecuting the second appeal in the same capacity in which Dwarka Dass was conducting it, though it is true that Badri Dass had larger rights than those of Dwarka Dass. I am therefore not prepared to accept the contention of learned Counsel for the Appellant that Badri Dass prosecuted the second appeal in a capacity different than the capacity in which he has filed this suit. In my opinion, the decision in the second appeal in suit No. 209 of 1938 operates as res judicata against the Plaintiff so far as the tin shed and the pucca Kharanja are concerned. I therefore agree with the finding of the lower court on this point. In view of the above conclusion the major portion of the land goes out of dispute....
(3.) HE accordingly dismissed the Plaintiff Appellant's suit with costs. Aggrieved by the decision of the courts below he has come to this Court in second appeal.;