Dave, J. - (1.) This is a first appeal by the defendants against the judgment and decree of the Civil Judge, Udaipur district, dated 25-9-1951.
(2.) A preliminary objection has been raised by the respondents' learned advocate to the effect that the appeal is barred by 'res judicata' and, therefore, it is prayed that it should be dismissed on that ground alone.
(3.) In order to appreciate the respondents' contention, it seems necessary to state the relevant facts briefly. In the city of Udaipur in Mohalla Dhanmandi, there is a Jain temple of Sumatinath belonging to the Agarwal Jain community which is represented in the present case by the appellants. On the back side of this temple, there is a school which is called Shri Parshwanath Digambar Jain Vidyalaya. In between the building of the said temple and the school i.e. on the back and the two sides of the temple other than the front side, there is vacant land and that is the subject of dispute between the parties. On 16-1-1946, Shri Parshwanath Digamber Jain Vidyalaya Society through its General Secretary, Shri Gulabchand son of Shivlal Taya brought a suit which has given rise to the present appeal. It was averred by the plaintiff that the land, whose boundaries were given in the plaint, was in the owner-ship and possession of the plaintiff, that the defendants were trying to make illegal encroachment on its Chowk and Chabutra, that on the southern side near the temple the defendants had constructed a room for Pujari and were further going to construct some Tibaris, that on the western side adjoining the wall of the temple, the defendants had dug out the ground without the plaintiffs' permission, that on the northern side, the defendants had removed some stones from the Chowk and, therefore, it was prayed that the defendants should be directed, to remove the buildings which they had constructed, to fill up the pits which they had dug out to level the ground, and that they should be further restrained by a permanent injunction from making any encroachment on the plaintiffs' property in future. In the suit, as originally instituted, only seven persons were impleaded as defendants, but later on five more were added at their own request on 8-3-1946. On 4-5-1947, Heeralal and Tolaram filed a counter representative suit on behalf of Samast Panch Jain Agarwal residents of Udaipur City against Shri Parshwanath Digamber Jain Vidyalaya Society through its General Secretary Gulabchand. It was asserted by the plaintiffs in that case that the land all around the temple belonged to the plaintiffs, that some of that land was given away to the Sakal Digamber Jain Panchas by a Bhet Patra in Samwat year 1982, that the said document was void and illegal, that the defendants had constructed certain buildings, but the open land on the back and sides of the temple i.e. on the western, northern and southern sides of the temple was still in the ownership and possession of the plaintiffs, that the defendants were trying to make encroachment on the said land by constructing some drains and, therefore, it was prayed that a declaratory decree be given to the effect that the land on three sides of the temple was in the possession of the plaintiffs. It was further prayed that the defendants be restrained by a permanent injunction from making encroachment on the disputed land. Thus, both the parties filed counter suits against each other. Both of them claimed ownership and possession of the disputed land and prayed that the other be restrained from making any encroachment. It appears that issues were framed in the second suit also, but later on, the proceedings therein, were stayed till the disposal of the first case. As mentioned above, the first case was decided in favour of Shri Parshwanath Digamber Jain Vidyalaya Society by the Civil Judge, Udaipur district on 25-9-1951. The second suit No. 48 of 1952 was pending in the Court of the Additional Civil Judge Udaipur. It appears that because of the decision in the first case, an objection was raised by the defendants in the second case that the suit was barred by res judicata and, therefore, on 11-3-1953, an issue was framed in the following words: "Whether this suit is barred by res judicata?";