ASTHAL TIRKHU TIRATH JI MAHARAJ AND ANOTHER Vs. TIRKHU TIRATH SUDHAR SAMITI OF VILLAGE SEENK PATRI AND ANOTHER

JUDGEMENT

(1.) Delay of 1 day in filing the appeal is condoned.

(2.) The suit had been instituted on behalf of Asthal Tirkhu Tirath Ji Maharaj said to be represented through the Mohatamin and by the present Mahant Rajpal Dass describing himself as Mahant for the recovery of possession. By the same cause title, a previous suit had been instituted for injunction restraining the very same defendants from interfering with possession of the property. The previous suit had been instituted on 25.07.1996 and the suit was dismissed holding that idol alone was a juristic person and that the plaintiffs were not competent to maintain the suit. It was further held that the 2nd plaintiff who is the 2nd appellant here before this Court had claimed the status as a Mahant but it was stated in defence that he had been appointed for a period of one year in the year 1984 subject to certain conditions; the conditions being that (i) he shall not get married; (ii) he shall not take any private or public appointment and (iii) he shall render due account of the properties of the religious institution. It was stated that the 2nd plaintiff had breached the condition regarding his celibacy and he had gotten married and he had also not been properly accounting for the income from the properties. The Court found that apart from the maintainability of the suit in the manner in which the plaint had been framed, the plaintiff had also not come to the court with clean hands referring himself as a Mahant when he was not. After the dismissal of the suit for injunction, he filed the appeal and the appeal was also dismissed. It appears that after the appeal had been filed to this Court, the plaintiff had it withdrawn without securing any liberty to file a fresh suit.

(3.) The instant suit which is the subject of second appeal now was filed on a plea that after the institution of the suit, he was dispossessed on 4.8.1996 and he should, therefore, be allowed the benefit of recovery of possession. The defendants filed the written statement and also took an objection that the dismissal of the very same suit constituted a final adjudication between the parties and it would operate as res judicata. There was also an objection that the present suit was barred under Order 2, Rule 2 CPC. The case was taken up for consideration only on the legal objections taken by the defendants and it was found that the plaintiff's status as Mahant was itself discussed in the previous suit and found that he was not and the present suit filed for recovery of possession from the defendants was incompetent, the judgments operating against him finally. These findings rendered by the trial Court were also confirmed in the appeal by the lower Appellate Court and the very same objections are taken in the second appeal.