BIRAM PRAKASH Vs. NARENDRA DASS

JUDGEMENT

(1.) This appeal is brought by special leave on behalf of the plaintiffs from the judgment and decree of the High Court of Allahabad dated November 13, 1959, dismissing First Appeal No. 342 of 1948 arising out of the judgment and decree of the Civil Judge of Saharanpur, dated September 6, 1948, in Suit No. 64 of 1945.

(2.) This suit was brought by the appellants as representing the Udasi sect under O. 1, R. 8 of the Civil Procedure Code in respect of the 'Dharamshala' at Hardwar containing the Samadhi of Baba Bakhat Mal, founder of the Gaddi Shanter Shah which is located in Roorkee Teshil of Sahranpur District. The appellants prayed for a declaration that the Dharamshala was a wakf property and not transferable and that the sale deed dated June 14, 1945 executed by respondents 1 and 2 in favour of respondents 3 and 4 was illegal and inoperative. It was alleged by the appellants that the Dharamshala was not part of the Gaddi Shanter Shah but was a separate endowment and the Mahant of Gaddi Shanter Shah had no right to alienate practically the entire dharamshala and destroy the substratum of that endowment. It was stated that respondents 1 and 2 executed the sale deed to set aside the auction sale of a major part of the Dharamshala in satisfaction of a mortgage decree in Suit No. 66 of 1935 obtained by Panchayati Akhara Kaian Kankhal on the basis of a mortgage deed dated June 1, 1933 executed by Mahant Saheb Dass. It was also alleged that the mortgage deed to enforce which the decree was passed was not executed by Mahant Saheb Dass for legal necessity and the transaction was not binding on succeeding Mahants. The suit was contested by the respondents on the ground that the Dharamashala at Hardwar was part of the Gaddi Shanter Shah and the mortgage deed executed by Saheb Dass dated June 1, 933 was supported by pressing legal necessity and the sale deed executed in favour of respondents 3 and 4 on June 14. 1945 was binding upon the Gaddi of Shanter Shah. It was stated on behalf of the respondents that the decree in the mortgage suit being Suit No. 66 of 1935 created a binding debt against the Gaddi Shanter Shah and that the impugned sale deed was executed in order to save the whole of the Dharamshala from passing out of the hands of the Mahant of Gaddi Shanter Shah and the impugned alienation was of a protective character and was for the benefit of the estate of the Mahant of Shanter Shah. It was alleged on behalf of the respondents that the Samadhi of Baba Bakhat Mal and a substantial portion of the Dharamshala had been excluded from the sale deed dated June 14, 1945. It was further alleged that the suit was barred by res judicata in view of the compromise in Suit No. 3 of 1943.

(3.) Upon these rival contentions the Civil Judge of Saharanpur held that the Dharamshala at Hardwar was not a separate endowment but was part and parcel of Gaddi Shanter Shah. The Civil Judge also held that the sale deed dated June 14, 1945 was legally valid as it was executed to discharge the decretal obligation created by the decree in suit No. 66 of 1935 and that the sale transaction was of a defensive character and was beneficial to the estate of the Gaddi Shanter Shah. It was accordingly held by the Civil Judge that the sale deed dated June 14, 1945 was executed for legal necessity and for adequate consideration. The Civil Judge also found that the suit was barred by S. 11 of the Civil Procedure Code on account of the Compromise decree in suit No. 3 of the 1943. The Civil Judge accordingly dismissed the suit. Against the judgment and decree of the Civil Judge the plaintiffs preferred First Appeal No. 342 of 1948 in the Allahabad High Court which dismissed the appeal by its judgment and decree dated November 13, 1959. The High Court confirmed the finding of the Civil Judge that the Dharamshala was not a separate endowment but was part and parcel of the Gaddi Shanter Shah. The High Court also took the view that the sale deed of June 14, 1945 was justified by legal necessity and was, therefore, legally valid. The High Court, however, differed from the trial Court on the question of res judicata and held that the decision in suit No. 3 of 1943 did not operate as res judicata in the present suit