NARAIN DAS Vs. ATMA RAM

JUDGEMENT

(1.) THE subject matter of this protracted litigation is a 'sal' a sort of parlour standing adjacent to the temple of Shree Neelkanth Mahadeo, located outside Chandpole Gate in the city of Jodhpur. THEre is another temple of lord Krishna, situated very near to the 'sal' in question. This temple of Lord Krishna is alleged to belong to the Vaid Nai Community (barbers) of Jodhpur. THE present suit for issue of a mandatory injunction was instituted by Shyamdas in the Court of Munsiff, Jodhpur City on 24-8-1959 against the representatives of the barber community. It was alleged in the plaint that the 'sal' in question belonged to the plaintiff, who owned the temple of Neelkanth Mahadeo and that previously it had been decided by the then Chief Court of the former State of Jodhpur vide its judgment dated 8-10-1926, Ex. 3, against the representatives of the barber community that the 'sal' was attached to the temple yet some barbers had taken forcible possession of the same from the plaintiff in October 1949 whereupon a criminal case was instituted against the barbers who entered into a compromise on 26-2-1952 and handed over possession of the 'sal' back to the plaintiff. It was further alleged that about 10 days before filing of the suit the defendants had forcibly demolished a portion of the 'sal' and made alterations in it by constructing a pucca gate in place of an old window. It was therefore prayed that the defendants be directed to restore the 'sal' to its original condition and to remove the encroachment made thereon by them by putting "pattis' etc. on it. THE suit was resisted by the defendants who asserted their own title to the 'sal' as well as possession over it since generations. Certain other legal objections such as bar of limitation, insufficiency of court fee etc. were also taken.

(2.) AFTER recording the evidence produced by the parties the trial court dismissed the suit. It did not give any finding as to the ownership and possession over the 'sal', though it held that the 'sal' was being constantly used by members of the barber community for the purpose of going to their temple, that is, the temple of Lord Krishna. It further held that the plaintiff had never raised any objection to the use of the 'sal' by the barber community and there was no reasonable ground for him to have any objection to the conversion of the window existing in the 'sale' into a gate for the convenience of all the users of the 'sal'. He further found that the plaintiff had brought the suit after great delay in as much as he did not raise any objection while the construction was going on for a fort-night. In this view of the matter, he refused to issue a mandatory injunction in favour of the plaintiff.

(3.) NOW, in the present case there is nothing to show that the omission to comply with the conditions of the Rule (O. 1, r. 8 C. P. C.) has been inadvertent, and no injury from the omission has been sustained by the defendants The case ought not therefore fall within the exception carved out by their Lordships of the Privy Council. Consequently, the conditions of R. 8 having not been complied with fully in the previous suit, the appellant cannot have the benefit of Explanation VI to sec. 11 C. P. C. I am, therefore, unable to hold that the defendants are not entitled to assert their title to the 'sal' in dispute by the principle of res judicata. However, the judgment Ex. 3 even though not conclusive is yet relevant under sec. 13 of the Evidence Act as evidence of an instance in which the right claimed by the plaintiff in the present case had been successfully asserted But it deserves to be noted that in Ex. 3 it was held "that the 'sai' is not the plaintiff's private property, but is adjacent to the temple intended for the convenience of the public".