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TMI Blog1974 (2) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Exhibit 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 28-2-1952 and handed over pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raise any objection while the construction was going on for a fortnight. In this view of the matter, he refused to issue a mandatory injunction in favour of the plaintiff. 3. Aggrieved by the judgment and decree by the trial Court Naravandas 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff'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 Order 1. Rule 8, Civil P. C. were not followed in that case. 6. In Kumaravelu v. Ramaswami. AIR 1933 PC 183 it was held that where a suit to which the provisions of Order 1, Rule 8, Civil P. C. apply is conducted without complying with any of the conditions imposed by that rule, the benefit of Explanation VI to Section 11 cannot be extended to a decree in such a suit even though the litigation might have been bona fid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exception carved out by their Lordships of the Privy Council. Consequently, the conditions of Rule 8 having not been complied with fully in the previous suit, the appellant cannot have the benefit of Explanation VI to Section 11, Civil 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 Section 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 Exhibit 3 it was held that the 'sal' is not the plaintiff's private prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 two 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants, have, undoubtedly, made an endeavour to assert their title to the 'sal' in dispute, but for the purpose of decision of this case it is not necessary to so into that question. In my opinion, the dispute in the present litigation can be disposed of on the short point that the plaintiff has not succeeded in proving his exclusive ownership nor his exclusive possession over the 'sal'. It further appears to me that they brought the suit only after the construction had been completed. In these circumstances, no case has been made out for issue of a mandatory injunction for demolition of the impugned construction. The suit has therefore, been rightly dismissed by the Courts below, and the judgment and decree under appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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