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Judgment
S.C. Mital, J.—The chequered history of this case is that there are Nirankari Deras situate in Patiala, Kheri Nanga (in the erstwhile State of Patiala) and Lande Ke, Tahsil Moga, District Ferozepur. Prior to 1942, Harbans Dass was the Mahant of the three Deras In consequence of the recommendation of the Bheikh. Harbans Dass was removed for mismanagement by the Maharaja of Patiala on 1st April, 1944 It is further alleged in the plaint that entries were accordingly changed in the revenue records of Kheri Nanga and Patiala but on account of the lapse on the part of the management, Harbans Dass continued to be shown as the Mahant of Lande Ke After the removal of Harbans Dass, the contest was between Som Dass (defendant), who claimed to be the chela of Harbans-Dass, Piara Dass and Kapur Dass. Having elected Kapur Dass the Bheikh recommended him to the Maharaja who confirmed his elections in July, 1949. After two years. Kapur Dass resigned. Then in April 1950, Som Dass was appointed by the Government temporarily to manage Kheri Nanga for a period of two years. In due course, the Bheikh elected Rikhiv Dev (plaintiff) as Mahant of Patiala and the above-mentioned two branches He assumed control of Patiala. By the coming into force of the Constitution, the Maharaja had been divested of his powers. As the matter related to control and management of religious institutions the successor Government did not pass any order on the election of Rikhiv Dev by the Bheikh. Nevertheless, Som Dass did not leave charge of Kheri Nanga. Because he interfered with the control of the dera by Rikhiv Dev, the latter filed a suit which was decreed in his favour on 29th April, 1952, restraining Som Dass from interfering with the management of the Dera at Patiala.
After his removal Harbans Dass shifted from Patiala of Lande Ke. In the beginning of 1952, he died Som Dass, who claimed to be his chela, succeeded in getting mutation in his favour by the revenue authorities. The appellate authority confirmed the mutation in favour of Som Dass on 29th December, 1952 Thereafter, on 11th February, 1953, the present suit was filed by Rikhiv Dev It was decreed initially on 31st March, 1954. Som Dass preferred an appeal which came up for hearing before the Additional District Judge, Ferozepur, on 12th June, 1954. At that time, Regular First Appeal No. 25 (P) of 1952 filed by Som Dass against the above-said decree of 29th April, 1952, restraining him from interfering with the affairs of the Dera at Patiala was pending in the High Court. The common question of law and fact in the two suits was, whether after the death of a Mahant, the chela nominated by him succeeds him as Mahant or the right vests in the Bheikh to elect the successor of a deceased Mahant. In that situation, learned counsel for the parties made statement Exhibit P. 24 as a result of which the impugned judgment and decree dated 31st March, 1954 were set aside and the present suit was remanded to the trial Court. Then, upon the merger of the Patiala and East Punjab States Union and the Punjab, the appeal was dismissed by a Bench of this Court on 17th December, 1959, vide judgment Exhibit P. 23. It was held therein :
In the circumstances it is apparent beyond any measure of doubt that now the succession to the Nirankari Dera at Patiala, in the circumstances as in the present case, must be determined by the Bheikh by way of election of the appointee or his acceptance in that capacity. This is what has happened and the plaintiff has been elected as the Shri Mahant of the Nirankari Dera at Patiala by the Nirankari Bheikh and there is ample evidence of that on the record, a fact which has not, as stated, been questioned from the side of the defendant at the hearing of the appeal. So the defendant has no right to the Nirankari Dera at Patiala and the plaintiff is the elected Shri Mahant of the same.
From a perusal of judgment Exhibit P. 23, it is not indicated by the learned counsel that the Dera of Lande Ke also figured in the proceedings. In other words, the controversy was mainly with regard to the Dera at Patiala. However, in the narration of facts, there were references to the Dera of Kheri Nanga. As the question whether the Dera of Kheri Nanga was the principal seat and the Dera of Patiala a branch or vice versa, was not in issue, it was left open. In other words, the contest between Rikhib Dev and Som Dass centred round the Dera of Patiala with respect to which Rikhib Dev (plaintiff in that case also) got a decree of injunction restraining Som Dass from interfering with his management and control of the Dera of Patiala. After the judgment Exhibit P. 23 by the High Court, the trial Court decreed the present suit again on 9th May, 1960 in favour of Rikhib Dev. The appeal filed by Som Dass was accepted on the ground that the trail Court without applying its mind, adopted the decision given earlier on 31st March, 1954. Hence, the appellate Court again remanded the case for decision afresh with the direction that the trial Court to apply its mind and then decide the matter. By judgment dated 27th January, 1961, the suit was decreed. The appeal filed by Som Dass was accepted by the Additional District Judge, Ferozepur. Feeling aggrieved, Rikhib Dev preferred the regular second appeal, the decision of which is the subject-matter of this letters patent appeal.
While refering to the broad facts of the case, the learned Single Judge allowed the regular second appeal with the following observations:
After hearing learned counsel for the parties I am of the view that the judgment rendered by the learned Lower Appellate Court cannot be allowed to stand Admittedly, when the matter went before the learned Additional District Judge, Ferozepur on June 12, 1954 the learned counsel for the parties took a specific position and by their statement of that date agreed that the decision in R.F.A. No. 25P of 1952 should also govern the decision in this case. After the position had been taken on behalf of Som Dass respondent, he cannot now be allowed to turn round and say that he is not bound by the statement made by his Advocate. The principle of the law of estoppel enshrined in section 115 of the Evidence Act would clearly govern this case and disentitle this respondent to take up a contrary position in this case. This consideration apart the judgment rendered in R.F.A. No. 25P of 1952 (decided on December 17, 1959) being inter parties and arising on similar issues also creates the bar of res judicata against Som Dass respondent.
Mr. D.N. Awasthy, learned counsel for Som Dass contended, with due respects, that the statement Exhibit P. 24 made by the learned counsel for the parties was misconstrued before the learned Single Judge Support was sought from the following English translation of Exhibit P. 24: --
In view of the fact that an appeal in respect of the suit decided by the Court at Patiala bag been filed in Pepsu High Court, we agree that the suit relating to Patiala be deemed to be pending and the judgment and decree passed by the Court below in this suit be treated as set aside, as it was incumbent on the Court itself to have stayed the proceedings of this suit till the disposal of that appeal by the Pepsu High Court The file be sent back to the Court below and the suit be stayed u/ss 10 and 151 C.P.C. till the disposal of the appeal by the Pepsu High Court.
It was then contended by Mr. D.N. Awasthy that the learned counsel for the parties, when they made the above-quoted statement Exhibit P. 24, had clearly in mind the provisions of section 10 of the CPC providing that "No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties......." It bears repetition now that the only issue directly and substantially the same between the parties in the two suits was: "Whether the Mahant can nominate his chela as successor or the power vests in the Bhekh to elect the Mahant " This vital issue was categorically decided against Som Dass in the previous suit culminating in the judgment Exhibit P 23 of the High Court It is to this extent, argued Mr. D N. Awasthy that the decision Exhibit P.23 could be relevant. Under no circumstance could the judgment be a decisive factor for numerous other issues framed in this case. All these issues were under contest before the Additional District Judge on 12th June, 1954, when the statement Exhibit P.24 was made by the learned counsel for the parties, At best, the statement Exhibit P.24 could be read to mean that this suit be decided afresh in the light of the decision of the previous suit by the High Court.
Above all, argued Mr. D.N. Awasthy, that the vital issue of limitation raised against Rikhib Dev plaintiff could never be washed of by statement Exhibit P.24, inasmuch as, section 3(1) of the Limitation Act provides:--
(1) Subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
It is nobody''s case before us that the provisions of section 4 to 24 (inclusive) of the Limitation Act have any application to the present case. Mr. D.N. Awasthy then referred to the observation of the learned Single Judge that one of the grounds for dismissing the suit by the lower appellate Court was its having been filed beyond limitation. In view of the above quoted mandatory provision of section 3 of the Limitation Act, the plaintiff could not possibly succeed without crossing the bar of limitation yet, argued Mr. D.N. Awasthy, that by the impugned judgment the suit has been decreed. The contention of Mr. D.N. Awasthy cannot be said to be without merit.
Now, it deserves mention that in support of his judgment, the learned Single Judge applied the principles of res Judicata and estoppel against Som Dass defendant. With respect to the said principles, Mr. D.N. Awasthy reiterated his stand that the statement Exhibit P. 24 of the learned counsel for the parties made before the Additional District Judge, Ferozepur, could not be construed to mean that the present suit was to be decreed or dismissed in accordance with the acceptance or dismissal of the suit by the judgment of the High Court, dated the 17th December, 1969 in R.F.A. No. 25-P of 1959. To elaborate his contention, our attention was invited to the following issues framed in the present suit :--
Whether the Landeka Dera is branch of the Patiala Dera ?
Whether the Patiala Mahant is the Mahant of this Dera according to the old usage.
Whether the succession of Landeke Dera has always been by way of election of Bheikh ?
Whether there has been previous litigation between the parties about Patiala Deta and what is its effect ?
Whether Harbans Dass, the last Mahant, was dismissed from the management of the Patiala Dera If so, what is its effect upon the Dera in dispute ?
What is the usage of the institution and Dera in dispute about the appointment of Mahant ?
Whether plaintiff has got a prior right to the Mahantship of Dera in dispute and is thus entitled to the property in dispute ?
Whether the suit is barred by time ?
Whether the plaintiff is estopped from his act and conduct to file the suit ?
9-A. Is the suit barred under O. 2 R. 2 C.P.C. ?
Relief.
The judgment Ex. P. 23 of the High Court, argued Mr. D.N Awasthy, could nave relevance to issues Nos. 3 and 4 That it is so was highlighted by the fact that the trial Court derided issue No 3 in favour of Rikhib Dev plaintiff and with regard to issue No 4, the trial Court found that the judgment of the High Court operate as res judicata between the parties. It is also noteworthy that the decision of the trial Court on these two issues was not at all challenged before the lower appellate Court. Lastly, section 11 of the CPC lays down that no Court shall try 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 and has been heard and finally decided by the competent Court Thus, the contention of Mr. D.N. Awasthy that the principle of res judicata could not possibly apply to all the issues, except issues Nos. 3 and 4, appears to be tenable, for the simple reason that in the former suit culminating in judgment Exhibit P. 23 of the High Court, no issue, excepting issue No. 3 of this suit, was directly and substantially in issue.
Refering to the judgment of the lower appellate Court, it was highlighted by Mr. D.N. Awasthy that the principal points urged on behalf of his client Som Dass defendant were: (1) Whether the Patiala Dera is the principal seat and the Deras at Kheri Nanga and Lande Ke are its branches (issue No 2) and (2) Whether the suit is barred by time (issue No. 8). Both the issue were decided by the lower appellate Court in favour of Som Dass The decision of the trial Court on other issues was not under challenge before the lower appellate Court.
Successfully challenging the ratio of the impugned judgment of the learned Single Judge, Mr. D.N. Awasthy took up issue of limitation first. Before the lower appellate Court, in order to show that the suit was barred by time, reliance was at first placed on section 10 of the Limitation Act. The decision of the said Court that section 10 did not apply to the facts of this case has not been challenged before us by Mr. D.N. Awasthy. In the alternative, he supported the view of the lower appellate Court that Article 120 was applicable. Article 120 of the repealed Act of Limitation of 1908 is in terms, identical with Article 113 of the present Act No. XXXVI of 1963. This residual Article provides limitation of three years from the time when the right to sue accrues. It may be mentioned here that Mr. Puran Chand, learned counsel for Rikhib Dev did not contend before us that any Article, other than Article 120 of the Limitation Act governed this case.
Turning now to the applicability of Article 120 to the facts of the present case, it bears repetition that Harbans Dass was the Mahant of, not only the Deras of Patiala and Kheri Nanga, but also the Dera of Lande Ke. In consequence of the recommendation of the bheikh, Mahant Harbans Dass was removed on 1st April 1944 by the Maharaja of Patiala. Thereafter, he, with his chela Som Dass defendant settled in the Dera at Lande Ke it deserves particular mention here that Lande Ke was then in the British territory of India and outside the State of Patiala. After the removal of Harbans Dass, his name was substituted by that of his successor in the revenue records of Patiala and Kheri Nanga the latter being also situate in the erstwhile State of Patiala. But, no change in the revenue record of Lande Ke was ever made. In the result, the entries continued to be in the name of Harbans Dass After his death in 1952, the mutation was finally sanctioned in favour of Som Dass. In other words, at no stage did the Mahant of Patiala, after the removal of Harbans Dass, took over the charge of Lande Ke Dera. The other relevant material facts are that as a consequence of the removal of Harbans Dass, contest between his sole chela Som Dass defendant, Piara Dass and Kapur Dass ensued. The Bheikh elected Kapur Dass as Mahant. As set forth in para 9 of the plaint, the recommendation of the Bheikh was accepted by the Maharaja of Patiala who confirmed the election of Kapur Dass. Now the sum and substance of the plaintiff''s case, as set out in the plaint is that the Mahant of Patiala controls the two branches of Nirankari Deras of Kheri Nanga and Lande Ke. It follows that Mapur Dass having succeeded Harbans Dass enjoyed the status of Shri Mahant. In that capacity the right to sue Harbans Dass and Som Dass for the possession of the Dera of Lande Ke and the lands attached thereto, accrued to Kapur Dass his against this background that the plaintiff clearly averred in the plaint that the cause of action arose on 1st April, 1944 (the date of the removal of Harbans Dass) The other date as to the accrual of the cause of action stated in the plaint it 29th April, J 1952 on which the appeal against mutation in favour of Som Dass was rejected by the authority concerned The latter date has no relevant far the simple reason that the mutation per se has no effect on the title of a person. It need hardly, be said that in a suit for possession the material date is the one on which the right to sue for possession accrues, which in this case is no other than 1st April, 1944, whereas the suit was filed on 11th February. 1953.
The lower appellate Court sought support to its finding that the suit was barred by time from Mussammat Kamon and others v. Allah Bakhsh and others (1939) 41 P.L.R. 166, which lays down that Article 120 of the Second Schedule to the Limitation Act of 1908 applies to a suit to remove an unauthorised mutawali, but if no such suit is brought, the de facto mutawali acquires an indefeasible title. Another authority in point is Full Bench decision of the Madras High Court in A.N.C.T. Subbiah Thevar, Trustee of Sree Vedapuriswaraswami Koil and Others Vs. N.R. Samiappa Mudaliar and Others, , wherein it was held that a suit against an Ex-Trustee to make good the loss sustained by the Trust, by reason of his commission to collect moneys due to the Trust, would be governed by Article 120. The right to sue in such a case would arise only when a new Trustee is appointed.
For the foregoing reasons, there is no escape from affirming the decision of the lower appellate Court on issue No. 8 that the present suit is barred by time. In this view of the matter, the other issues which are yet to be argued before us need not be gone into. Accordingly, I would allow the appeal, set aside the judgment of the learned Single Judge and dismiss the suit. No order as to costs.
S.S. Sandhawalia, C.J.
I agree.