9911796707
TMI Blog1955 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... reciate 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has become final and this Court should not, therefore, hear the appeal because if it comes to a contrary decision, there would be two inconsistent decrees. Learned counsel for the appellants has urged in reply that the Additional Civil Judge ought to have kept the suit pending so long as the present appeal was not decided, that the appellants had a right to file an appeal against the decree in the second suit, but their failure to do so does not bar the hearing of the present appeal because the learned Additional Civil Judge has not really decided anything and he has dismissed the suit on the simple ground that it was barred by res judicata. We have given due consideration to the learned arguments advanced on both sides. Before coming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same. They were litigating under the same title, the matter directly and substantially in issue in both the suits was the same and the Additional Civil Judge who decided the second suit was also competent to decide the first suit. The contention between the parties, therefore, turns upon the fifth condition, namely whether the matter has been heard and finally decided by the second Court. It may be pointed out that the second Court has not at all applied its mind to the matter which was directly and substantially in issue before it. The matter which was directly and substantially in issue was whether the disputed land was in the ownership and possession of the one party or the other and which of them was really encroaching upon the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause no appeal has been brought before this Court. But assuming that the decision given by the learned Judge on the issue of res judicata is correct, it cannot be said that he has really heard and finally decided the real matter which was directly and substantially in issue in the suit before him. His decision only comes to saying that he would not try the suit or the issues involved because of the bar of res judicata. 7. It may be further observed that the Additional Civil Judge, while dismissing the suit, thought rightly or wrongly that his decision would be automatically set aside if the appellants in the appeal before us would be successful. In the case of 'Chandra Singh Dudhoria v. Midnapore Zamindari Co. Ltd. a plea of res jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. In those circumstances, it was held by the High Court of Hyderabad that 'A' should have filed separate appeals within the period of limitation and that the first appeal was barred by res Judicata. This view was not approved by their Lordships of the Supreme Court and it was held that since there was only one suit and the appeals had been disposed of by one judgment, it was not necessary to file two separate appeals and the fact that one of the appeals was time-barred did not affect the maintainability of the other appeal. It is true that the facts of the case cited above are a bit different from the facts of the case before us inasmuch as there were two suits and two different judgments in the present case, but the principl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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