REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.     100            OF 2009 (Arising out of SLP (C) No. 10808 of 2006)

HARBANS SINGH & ORS.     … APPELLANTS

Versus

SANT HARI SINGH & ORS.            … RESPONDENTS

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. The  dispute  between  the  parties  in  this  matter  is  in  regard  to

management  of  Gurudwara  Sant  Bela  Sahib  Patshahi  Naumin (for  short,

“the  said  Gurudwara”)  situated  in  Village  Kajal  Majra  and  in  Village

Shergarh Bara.  Sant Surjan Singh is the founder of the said Gurudwara.  He

had given the right of management of the said Gurudwara to Jagat Singh,

who died  in  an accident  during his  life  time.   On or  about 6.5.1982, he

executed a general power of attorney appointing (1) Balu Singh s/o Talok

Singh (Nabardar),  (2)  Harbans  Singh s/o  Ram Singh;  and (3) Sant  Nand

Kaur widow of Jagat  Singh as his  attorneys  in  terms whereof they were

conferred  the  powers  to  manage  the  whole  of  the  property  of  the  said

Gurudwara.    

Clauses (3) and (4) of the said power of attorney read as under:

“(3) If any member  out  of  these  members  dies then can elect another member with the acceptance of majority.  The elected member will have same rights  as  these  members  have.   I  and  the  alone general  power  of  attorney  holders  will  act  for Gurudwara with the acceptance of majority.   

(4) After my death the rights given by me to the alone  said  member  will  remain  with  them (sic). The  contents  of  the  General  Power  of  Attorney read over and heard are found to be correct.  So the  General  Power  of  Attorney  is  written  with sound mind.”  

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3. Sant Surjan Singh died on 2.12.1983.  The Managing Committee of

the  Gurudwara,  however,  passed  a  resolution  on  18.12.1983  in  terms

whereof  one  Sant  Hari  Singh  was  appointed  as  Mohtmim  of  the  said

Gurudwara and In-charge of  the affairs  thereof.  Disputes  and differences

having arisen between the parties as to who should manage the affairs of the

said Gurudwara, two suits were filed.  

4. Sant  Hari  Singh  filed  Civil  Suit  No.  494-T/1995  for  permanent

injunction before the Court of Civil Judge (Jr. Division), Fatehgarh Sahib

claiming that he was the Mohtmim of the said Gurudwara and he was in

possession, control and management and enjoyment of the said Gurudwara.

The  Managing  Committee  of  the  said  Gurudwara  also  filed  Civil  Suit

No.367-T/1996  for  declaration  that  the  Managing  Committee  was  in

management and control of the said Gurudwara and was entitled to manage

and control the same and the respondent was not a Mohtmim of the said

Gurudwara and, thus, not entitled to manage its affairs.   

Both the suits were consolidated and directed to be heard together by

an order dated 28.2.1997 passed by the learned trial judge.   

5. By reason of a judgment and decree dated 11.5.2000, the suit filed by

Sant  Hari  Singh  was  decreed  with  costs  in  terms  whereof  a  decree  of

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permanent  injunction  was  granted  restraining  the  Managing  Committee

from  interfering  with  the  possession,  management  and  control  of  the

respondent over the land of the said Gurudwara, and consequently the suit

filed by the Managing Committee was dismissed with costs.  

6. Appellant herein and the Managing Committee of the said Gurudwara

preferred appeals thereagainst.   

7. The learned Additional District Judge by a judgment and order dated

16.7.2003 held that the possession of the suit land as also the management

of  affairs  of  the  said  Gurudwara  had  vested  in  Sant  Hari  Singh,  the

respondent  herein,  in his  capacity of a Mohtmim, and, thus,  affirmed the

decree for grant of permanent injunction passed by the learned trial court.

The learned Additional District Judge furthermore opined that the revenue

record having not been corrected in regard to the recording of death of Sant

Surjan Singh, the said omission by itself, would not be sufficient to wash off

the remaining entries which had been entered in favour of the respondent.  It

was furthermore held that the said power of attorney had ceased to have any

effect after the death of Sant Surjan Singh.   

8. Appellants  herein  aggrieved  by and dissatisfied  with  the  judgment

and order dated 11.5.2000 passed by the learned trial court in Civil Suit No.

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367-T/1995 and judgment and order dated 16.7.2003 passed by the learned

First  Appellate  Court  in  Civil  Appeal  No.  62/2000  preferred  Regular

Second Appeal bearing No. 4657/2003 before the High Court of Punjab and

Haryana at Chandigarh.   

9. By reason of the impugned judgment, the said second appeal has been

dismissed by the High Court, holding:

“ Two appeals being Civil Appeal No. 59 of 24.7.2000 and Civil  Appeal No. 62 of 24.7.2000 were  filed.   One  appeal  was  filed  by  Harbans Singh  and  others  claiming  that  they  duly constituted  a  Managing  Committee  and  were  in control  and  management  of  Gurudwara  and  its property.   The  other  appeal  was  filed  by  the Managing Committee. This appeal was also filed by  the  Managing  Committee,  comprising  of  the aforesaid persons.  

The  aforesaid  two  appeals  were  dismissed by the learned First Appellate Court.

The  present  appellants,  who  were defendants  in  the  suit,  filed  by Sant  Hari  Singh have chosen to file the present appeal.  No appeal has  been  filed  in  the  connected  suit.   In  these circumstances, it has to be taken that the findings recorded  by  the  learned  trial  court  as  well  first appellate court  in the suit  filed by the Managing Committee  and  others  have  attained  finality  and Hari  Singh  has  been  held  to  be  in  possession, control and management of the Gurudwara and its property.  Since the findings recorded in other suit have attained finality, therefore, the appellants in

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the present appeal cannot be heard (sic) to claim that the judgments and decree of the courts below are erroneous in any manner.”

10. Mr. B.S. Chahar, learned Senior Counsel appearing on behalf of the

appellants would contend that the principles of res judicata is not applicable

in  the  instant  case  as  in  the  suit  filed  by  the  Managing  Committee  the

appellant was not a party.  It was urged that the said principle could have

been held to be applicable only in the event the parties in both the suits were

the same.    

11. Mr. P.S. Patwalia, learned Senior Counsel appearing on behalf of the

respondents, however, supported the impugned judgment.   

12. Appellant  herein  does  not  claim any right,  title  and interest  in  his

individual  capacity.   He  was  the  Vice-President  of  the  Managing

Committee. Thus, for all intent and purport, he was also a plaintiff in Civil

Suit No. 367-T/1996.  The judgment and decree passed in the suit filed by

Sant Hari Singh might not have been binding upon the appellant herein had

he  claimed any right  or  interest  over  the  said  property  in  his  individual

capacity and not as a member of the Managing Committee.  Indisputably,

the  Managing  Committee  did  not  file  any  Second  Appeal  against  the

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judgment  and  decree  passed  against  it.   The  said  judgment  and  decree,

therefore, attained finality.   

13. Both the suits, as noticed hereinbefore, were consolidated.  They were

heard together.   The disputes  between the parties  to  both  the  suits  were

common.  The issues raised therein also were common.   

The Managing Committee filed a suit for declaration that it  was in

management  and  control  of  the  said  Gurudwara  Sahib  and  was  entitled

thereto as also a declaration that the respondent was not a Mohtmim of the

said Gurudwara and,  thus,  not  entitled to manage its  affairs.  As the said

decree had attained finality, it is binding on the appellants also.   Appellants,

therefore, in law, were required to prefer another Second Appeal against the

judgment and decree passed in the said suit.  The principle of res judicata in

the aforementioned fact situation, in our opinion, has rightly been applied

by the High Court.  

14. Section 11 of the Code of Civil Procedure reads thus:

“Section 11 -  Res judicata.-- No Court shall  try any suit or issue in which the matter directly and substantially  in  issue  has  been  directly  and substantially in issue in a former suit between the same parties, or between parties under whom they or  any of  them claim,  litigating  under  the  same

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title, in a Court competent to try such subsequent suit  or  the  suit  in  which  such  issue  has  been subsequently  raised,  and  has  been  heard  and finally decided by such Court.”

15. In  Premier  Tyres  Limited  vs.  Kerala  State  Road  Transport

Corporation [1993 Suppl. (2) SCC 146], this Court held:

“….The question is what happens where no appeal is  filed,  as  in  this  case  from  the  decree  in connected  suit.  Effect  of  non-filing  of  appeal against  a  judgment  or  decree  is  that  it  becomes final.  This  finality  can  be  taken  away  only  in accordance  with  law. Same consequences  follow when a judgment or decree in a connected suit is not appealed from. 5. Mention  may  be  made  of  a  Constitution Bench  decision  in  Badri  Narayan  Singh v. Kamdeo Prasad Singh. In an election petition filed by  the  respondent  a  declaration  was  sought  to declare the election of appellant as invalid and to declare  the  respondent  as  the  elected  candidate. The  tribunal  granted  first  relief  only.  Both appellant and respondent filed appeals in the High Court.  The appellant’s  appeal  was dismissed  but that  of  respondent  was  allowed.  The  appellant challenged  the  order  passed  in  favour  of respondent  in  his  appeal.  It  was  dismissed  and preliminary  objection  of  the  respondent  was upheld. The Court observed,

“We are therefore of opinion that  so long  as  the  order  in  the  appellant’s Appeal  No.  7  confirming  the  order setting  aside  his  election  on  the ground  that  he  was  a  holder  of  an office  of  profit  under  the  Bihar Government  and therefore  could  not

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have  been  a  properly  nominated candidate  stands,  he cannot  question the  finding  about  his  holding  an office of profit, in the present appeal, which  is  founded  on  the  contention that that finding is incorrect.”

In  Union of India  vs.V. Pundarikakshudu   & sons & anr.    [(2003) 8

SCC 168], this Court held:

“31. In  this  case  the  District  Judge  as  also  the High Court of Madras clearly held that the award cannot be sustained having regard to the inherent inconsistency contained therein. The arbitrator, as has been correctly held by the District Judge and the High Court, committed a legal misconduct in arriving  at  an  inconsistent  finding  as  regards breach of the contract on the part of one party or the other. Once the arbitrator had granted damages to the first respondent which could be granted only on  a  finding  that  the  appellant  had  committed breach  of  the  terms  of  contract  and,  thus,  was responsible therefor,  any finding contrary thereto and  inconsistent  therewith  while  awarding  any sum in favour  of  the appellant  would be wholly unsustainable being self-contradictory.”

As no appeal was preferred by the Union of India while accepting the

award made in favour of the first respondent, it had attained finality and,

thus, the principle of res judicata was found to be applicable.  It was opined:

“35. As the appellant failed to get that part of the award which was made by the arbitrator in favour

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of  the  first  respondent  set  aside,  the  basic conclusion  of  the  High Court  cannot  be  faulted. The  Court  upon  setting  aside  the  whole  award could  have  remitted  back  the  matter  to  the arbitrator  in  terms  of  Section  16  of  the  Act  or could have appointed another arbitrator, but at this juncture no such order can be passed as the award in part has become final.”

The said decision applies to the facts of the present case also.

16. For the reasons aforementioned, there is no merit in this appeal. It is

dismissed accordingly.  No costs.

.……………………………….J. [S.B. Sinha]

...…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; JANUARY 13, 2009

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