VISHWANATH Vs. MUNICIPAL BOARD AND ANR.

JUDGEMENT

(1.) THIS second appeal raises an important question which may be stated thus: does the judgment of the High Court in Second Appeal operate as res judicata against a person who was not a party to the suit nor in the subsequent appeal before the lower appellate court, but who, after the filing of the Second Appeal in the High Court, applied to be added as a co -Appellant on his own application if so, to what extent? It is necessary; to state in detail the facts which have led to this appeal. The present Plaintiff Appellant mortgaged the plot of land in dispute to a man called Dwarka Dass who became the usufructuary mortgagee. He filed a suit against the Municipal Board, Mathura for possession alleging that the Board had constructed an unauthorised tin -shed and 'Kha ranja' over the plot. The owner -mortgagor was not made a party to the suit. One of the issues framed by the trial court in that suit was whether the land in dispute belonged to the Plaintiff and another whether the property in the land vested in the Defendant Municipal Board. It held, after an assessment of such evidence as was led before it, that the property in the land vested with the Municipal Board and that the Municipal Board had the authority to raise structures on the land which was held to be a public street. On appeal by the usufructuary mortgagee the District Judge confirmed the finding that the land in dispute was a public street and therefore vested in the Municipal Board. It further held that under Section 116 of the Municipalities Act all public streets vested in the Board which had every right to raise structures in dispute. He accordingly dismissed the appeal. The mortgagee filed a second appeal to the High Court. During the pendency of the appeal, the owner -mortgagor (the present Plaintiff -Appellant) redeemed the mortgage, with the result that the interest of the mortgagee in the land in dispute was extinguished. He then took a step which as events subsequently turned out, proved to be ill -advised. He made an application in the High Court for being added as Appellant No. 2 in the second appeal which was pending. In his affidavit supporting this application he stated that the mortgage in favour of the mortgagee -Appellant had been redeemed by him, that he had obtained possession of the entire mortgaged property and that it was therefore necessary that his name should be added as an Appellant. This application was allowed by this Court. Subsequently, the second appeal itself was dismissed by a Division Bench of this Court by their order dated 12 -3 -1945. It was held that the finding of the court below that a portion of plot No. 564 had been used by the public as a Rasta -Am must be accepted and therefore this portion was a "public street" within the meaning of Section 2(19) of the UP Municipalities Act and the Municipal Board were entitled to raise the structures complained of. The appeal was dismissed. The judgment is a very brief one and the array of parties at the head of it is described as Dwarka Dass Plaintiff -Appellant v. The Municipal Board Mathura Defendant -Respondent. As the entire case of the Defendants in the present appeal on the question of res judicata is based on this judgment, it is necessary to quote it verbatim. Their Lordships observed:

(2.) SEVERAL features of this judgment are noteworthy. The Appellant is described as "a usufructuary mortgagee of the plot in question". The name of the owner -mortgagor (the present Appellant) does not figure in the judgment at all. It does not appear from this judgment that the owner -mortgagor was in the mind of the High Court at all at the time of delivering this judgment in S.A. No. 1624 of 1940 Dwarka Dass v. The Municipal Board, Mathura. In any case the Appellant had no opportunity at the hearing of the suit to rebut the evidence of the Municipal Board nor to impugn before the appellate court the trial court's assessment of this evidence.

(3.) HE accordingly dismissed the Plaintiff Appellant's suit with costs. Aggrieved by the decision of the courts below he has come to this Court in second appeal.