M.M.KUMAR,J - (1.) THIS is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that the suit filed by them was barred by the principles of res judicatra as the same property was subject-matter of dispute in the previous suit which was dismissed by the then Addl. Senior Sub-Judge, Faridabad vide judgment and decree dated 21.8.1986. The appeal was also dismissed by the learned lower appellate Court on 13.12.1986 and RSA No. 1654 of 1987 against the aforementioned judgments and decree was also dismissed by this Court on 29.9.1987. In the earlier suit, it has been categorically held that the suit property was not a Muslim burial ground. It is further pertinent to mention that the earlier suit was filed by Irshad etc. in their representative capacity and various documents have been placed on record to prove the aforementioned facts which are Exs. D-1, D-3 and D-4. The suit has been filed on behalf of the entire Muslim community of village Sarai Khawaja. The Courts below have further placed reliance on a copy of the judgment Ex. D.5 showing that another suit was filed by the Punjab Wakf Board on behalf of the Muslim community of village Sarai Khawaja.
(2.) BRIEF facts of the case which have led to the filing of the instant appeal are that Shri Kaluta (since deceased) and others instituted civil suit No. RBT 244 of 1987 on 8.1.1987/5.4.1996 seeking permanent injunction against the defendant-respondents. It was claimed that they were Muslims and were permanent residents of village Sarai Khawaja, Tehsil Ballabgarh and there is an old grave yard in the afore-mentioned village as per jamabandi for the year 1954-55. It was further alleged that the suit land was recorded in the ownership of Ghisa son of Ram Dutt but in fact was in actual possession of the Muslim community of village Sarai Khawaja having been dedicated by the owner for its use as grave yard since times immemorial. In view of the long, continuous and uninterrupted user, dedication in favour of Muslim community was to be presumed and the suit land became the lost grant of the recorded proprietors. A declaration was sought that the proprietors were left with no right, title or interest in the aforementioned land. The aforementioned piece of land was the only place where the members of the Muslim community could bury their dead and there were graves of their deceased members. The heirs of Ghisa claiming themselves to be the owner are alleged to have executed some conveyance deed on 10.10.1969 in favour of defendant-respondents. A declaration in respect of the aforementioned sale-deed has been sought that the same did not confer any right, title or interest on the defendant- respondents as the possession of the suit land continued uninterruptedly with the Muslim community. The defendant-respondents on the basis of the conveyance deed have continuously changed the nature of the land and have converted into plots for the purposes of development of residential colony. Eventually, a settlement is alleged to have taken place on 7.7.1995 between the parties. The defendant-respondent had agreed to keep intact an area of 11 kanals out of total land mentioned in para 1 of the plaint solely for the purposes of Kabristan which is depicted in the site plan in red colour. It is claimed that the aforementioned agreement is binding on both the parties but the defendant-respondent in breach of the obligation tried to demolish the graves even from the reserved area of 11 kanals. The defendant-respondent despite request of the plaintiff-appellants have been continuously interfering in the aforementioned land which led to the filing of the suit. The defendant-respondents resisted the suit on the ground that the same is barred by the principles of res judicata as the earlier civil Suit No. 44 of 6.4.1983 was dismissed by the Civil Judge, Faridabad on 21.8.1986. In the appeal the judgment and decree dated 21.8.1986 was upheld by the learned appellate Court on 13.12.1986 and RSA No. 1654 of 1987 was dismissed by this Court on 29.8.1987. It is claimed that the suit is barred by Order 2 Rule 2 of the Code. The ownership and possession of the Muslim Community or the existence of old grave yards has been denied. It is claimed that the land was never dedicated by its owner Ghisa or his heirs for use as grave yard by the members of the Muslim community or it is being used as such since times immemorial. After the year 1947 there is said to be no grave in the suit land and the same has not been used as grave yard. The suit land along with other big chunk of land was purchased by defendant-respondents 20 years ago and they had carved out a big residential colony by laying Pucca Mettaled Roads, Sewerage, water channels, electric connections etc. The Muslim community belonging to village Sarai Khawaja migrated to Pakistan in the year 1947 and a claim is sought to be made by some labourers from U.P. who have settled in this village. The existence of grave yard in the nearby revenue estate of Palia has also been pointed out.
(3.) AFTER framing of issues and adducing evidence by the parties, the trial Court recorded the finding that the suit land was held by the Hindu Proprietor and this was not dedicated by him to the Muslim community. It was further found that even otherwise no dedication by the Hindu to the Muslim community could be accepted by them, as gift by a non-Muslim to a Muslim is not permissible for a religious and charitable purpose. The trial Court also held that the controversy raised in the suit is in respect of the same property which was subject-matter of suit filed by Irshad Ahmed and others on behalf of the Muslim community in Civil Suit No. 44 dated 6.4.1983. A copy of the plaint in the aforementioned suit has been placed on record as Ex. D-2 and a copy of the judgment as Ex. D-3. Ex. D-1 is copy of the judgment dated 13.12.1986 passed by the lower appellate Court upholding the judgment of the Civil Judge dated 21.8.1986 in the suit filed by Irshad Ahmed. Ex. D-4 is a copy of the judgment passed by the High Court in RSA No. 1654 of 1987 decided on 29.4.1987. Accordingly, it has been held that the suit is barred by Order 2 Rule 2 of the Code. The views of the lower appellate Court on the issue of res judicata reads as under :- "18. ....... It is the contention of the learned counsel for the defendant that the suit land was the same. The proposition of facts and law involved in the present appeal was also the same and the matter has already been heard and finally decided by the competent Court. Therefore, the suit of the plaintiffs is clearly barred by the principles of res judicata. It is not denied that the earlier suit by Irshad etc. was filed by them in a representative capacity and therefore, the present plaintiffs would be deemed to be parties to the earlier suit. 19. xxx xxx xxx 20. ..... the earlier suits by a person belonging to Muslim community was filed by him in a representative capacity. The title of the defendant by virtue of sale-deed was also involved and therefore, it has become crystal clear that the judgment and decree of the earlier suits also binds the present plaintiffs-appellants. The principle of res judicata clearly applies to the facts and circumstances of the case in hand and therefore, learned trial Court has heard and considered this plea at length and has reached to a reasoned finding that principle of res judicata apply to the case in hand. The correct conclusion reached on by the learned trial Court does not warrant any interference by this Court." ;