- (1.) THE subject matter of this protracted litigation is a 'sal' a sort of parlour standing adjacent to the temple of Shree Neelkanth Mahadeo, located outside Chandpole Gate in the city of Jodhpur. THEre is another temple of lord Krishna, situated very near to the 'sal' in question. This temple of Lord Krishna is alleged to belong to the Vaid Nai Community (barbers) of Jodhpur. THE present suit for issue of a mandatory injunction was instituted by Shyamdas in the Court of Munsiff, Jodhpur City on 24-8-1959 against the representatives of the barber community. It was alleged in the plaint that the 'sal' in question belonged to the plaintiff, who owned the temple of Neelkanth Mahadeo and that previously it had been decided by the then Chief Court of the former State of Jodhpur vide its judgment dated 8-10-1926, Ex. 3, against the representatives of the barber community that the 'sal' was attached to the temple yet some barbers had taken forcible possession of the same from the plaintiff in October 1949 whereupon a criminal case was instituted against the barbers who entered into a compromise on 26-2-1952 and handed over possession of the 'sal' back to the plaintiff. It was further alleged that about 10 days before filing of the suit the defendants had forcibly demolished a portion of the 'sal' and made alterations in it by constructing a pucca gate in place of an old window. It was therefore prayed that the defendants be directed to restore the 'sal' to its original condition and to remove the encroachment made thereon by them by putting "pattis' etc. on it. THE suit was resisted by the defendants who asserted their own title to the 'sal' as well as possession over it since generations. Certain other legal objections such as bar of limitation, insufficiency of court fee etc. were also taken.
(2.) AFTER recording the evidence produced by the parties the trial court dismissed the suit. It did not give any finding as to the ownership and possession over the 'sal', though it held that the 'sal' was being constantly used by members of the barber community for the purpose of going to their temple, that is, the temple of Lord Krishna. It further held that the plaintiff had never raised any objection to the use of the 'sal' by the barber community and there was no reasonable ground for him to have any objection to the conversion of the window existing in the 'sale' into a gate for the convenience of all the users of the 'sal'. He further found that the plaintiff had brought the suit after great delay in as much as he did not raise any objection while the construction was going on for a fort-night. In this view of the matter, he refused to issue a mandatory injunction in favour of the plaintiff. Aggrieved by the judgment and decree by the trial court Narayandas and Balkishenlal as trustees of the temple of Neelkanth Mahadeo filed appeal, as the original plaintiff Shyamdas had by then died, and the learned District Judge, Jodhpur by his judgment dated 30 10-1964 affirmed the judgment and decree by the trial court. However, unlike the trial court he gave his finding as to ownership of the 'sal' and held that the 'sal' was proved to be the property of the defendants. He further found that the appellants had at no time exclusive possession over it. He also came to the conclusion that no case for demolition of the impugned construction was made out, and in the result, he upheld the judgment and decree by the trial court. Hence this second appeal by the plaintiff Narayandas. Learned counsel for the appellant has urged, in the first instance, that the defendants were debarred from asserting their title to the 'sal' in question by virtue of the judgement of the Chief Court of the former State of Jodhpur dated 8 10-1926 marked Ex. 3 by the principle of res judicata. He has also argued that in any case the plaintiff's title to the 'sal' in dispute is established. He has also urged that the appellant has succeeded in establishing his possession over the 'sal'. The last point urged by the learned counsel is that the plaintiff had never acquiesced in the construction and alterations made by the defendants in the 'sal' and thus not waived or abandoned his right to get the impugned construction demolished. I may first deal with the question of title to the 'sal' in question. The plaintiff appellant has primarily rested his case in this connection on the judgment Ex. 3 and has pressed into service Explanation VI to S. 11 C P. C. The former suit No. 181/20 211 was instituted by one Shyamdas son of Mukanddas against 6 members of the Nai Community in respect of the 'sal' in question. The Joint Kotwal by his judgment dared 27-4 1925 decreed the plaintiff's suit for possession of the 'sal' holding that the plaintiff had proved himself to be its owner. This judgment was set aside by the District Judge but on a second appeal by the plaintiff the judgment of the trial court was restored by the Chief Court, Jodhpur. It is conceded before me that the provisions of O. 1, r. 8 C P. C. were not followed in that case. In Kumarvelu vs. Ramaswami (1) it was held that where a suit to which the provisions of O. 1, r. 8 C. P. C. apply is conducted without complying with any of the conditions imposed by that rule, the benefit of Explanation VI to sec. 11 cannot be extended to a decree in such a suit even though the litigation might have been bona fide. In this connection their Lordships over ruled Sonachalam Pillai vs. Kumaravelu Chettiar (FB) (2) and held that Explanation VI is not controlled by O. 1, R. 8 and if a court allows a suit to which the rule applies, to proceed in a representative capacity for the benefit of numerous parties, all these parties will not be bound by the decree, even if the contest leading to it were bona fide, but the procedure prescribed by the rule is in no respect followed. It is true that their lordships further observed that "they would not exclude the possibility of a decree being within the benefit of the Explanation where the litigation having been bonafide the omission to comply with the condi-tions of the Rule has been inadvertent, and no injury from the omission has been sustained by the plaintiff in the second suit. But it is, their Lordships think, imperative to have it recognised that the burden upon a defendant seeking a ruling to that effect is heavy indeed. No encouragement should, they think, be offered to litigants, if they would obtain the full benefit of O. 1, r. 8, to be careless in securing full compliance with the conditions of the Rule both in the letter and in the spirit. "
(3.) NOW, in the present case there is nothing to show that the omission to comply with the conditions of the Rule (O. 1, r. 8 C. P. C.) has been inadvertent, and no injury from the omission has been sustained by the defendants The case ought not therefore fall within the exception carved out by their Lordships of the Privy Council. Consequently, the conditions of R. 8 having not been complied with fully in the previous suit, the appellant cannot have the benefit of Explanation VI to sec. 11 C. P. C. I am, therefore, unable to hold that the defendants are not entitled to assert their title to the 'sal' in dispute by the principle of res judicata. However, the judgment Ex. 3 even though not conclusive is yet relevant under sec. 13 of the Evidence Act as evidence of an instance in which the right claimed by the plaintiff in the present case had been successfully asserted But it deserves to be noted that in Ex. 3 it was held "that the 'sai' is not the plaintiff's private property, but is adjacent to the temple intended for the convenience of the public". The learned District Judge has relied upon Patta Ex. A. 1, dated Asad Sud 13, S. 1876, issued by the former State of Jodhpur in favour of the Nai Community, Patta Ex. A. 2, dated 304-1919 again in favour of the Nai Community and the order of the Revenue Member of the former State of Jodhpur Ex. A. 10, dated 6-4-1916 in coming to the conclusion that the 'sal' was proved to belong to the barber community. Learned counsel for the respondents has further invited my attention to a certified copy of an order dated 13 10-1936of the Development Officer, Jodhpur marked Ex. A. 11 wherein it was observed that the 'patta' of the 'sal' may be renewed in favour of the barber community. After having carefully examined the judgment of the Chief Court Ex. 3 as well as the documents relied upon by the learned District Judge, I must say that the stale of affairs as to the ownership of the 'sal' still remains in a complete state of confusion. Nothing appears to have been done by the plaintiff after the judgment of the Chief Court to obtain the Patta in his favour or to prevent the defendants from making a free use of the 'sal in question. It appears from the judgment Ex. 3 itself that the learned Chief Judge did not recognise the exclusive ownership of the plaintiff Shyam Das son of Mukan Das who had sued in his individual capacity. To put the finding in his own words, he said - "the parlour is not the plaintiff's private property but, as I have already stated, an adjunct to the temple intended for the convenience of the public. . . . . . . . . . . . . . . . . . . . . . . and this fact no doubt proves the nature of the possession which the plaintiff claims. " There were to Pattas in existence in favour of the Nai Community at the time when this judgment was given, and there is not a word in the judgment as to the effect of these 'pattas'. What is surprising is that even after this judgment by the Chief Court, the defendants continued to make use of the 'sal' and the 'patta' issuing authority, viz. the Development Officer, in the former State of Jodhpur by his order dated 13-10-1936 directed that a fresh 'patta' for the 'sal' may be issued to the barbar community if it is found to have been lost. In this state of affairs, the probative value of the judgment in favour of the plaintiff is considerably weakened: and I am unable to hold on the basis of the judgment Ex. 3 that the plaintiff has succeeded in proving his title to the 'sal' in dispute. ;