JUDGMENT
Hemant Gupta, J.
1. The defendant is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby suit for possession of suit land was decreed in appeal.
2. The plaintiffs have filed a suit for possession in respect of the property described in Para No. 5 of the plaint on the ground that Gaddi Dadu Dawara is religious and char-bitable Gaddi. It was set up by Mahant Satya Ram Dass about 200 years back at Kalanaur. The property was acquired on the basis of money donated by the followers. The last Mahant was Mahant Nitya Nand who died without leaving any Chela and, therefore, the plaintiff being Chela of Gurbhai of Nitya Nand was appointed Mahant by Bheks and Sewaks according to prescribed ceremonies and, therefore, sought possession of the suit land as owner on the basis of title. In the said suit, the defendants raised a plea that they have perfected their little by way of adverse possession. The plea of maintainability of the suit was also raised. The defendants denied the right of the plaintiff as Mahant after the death of Mahant Nitya Nand and, in fact, relied upon Will dated 4.8.1963 executed by Mahant Nitya Nand in favour of defendant No. 1.
3. Issue No. 1 was to the effect whether plaintiff is owner of the suit property. The learned trial Court on issue No. 1 has returned a finding that the previous judgment and decree in a suit for injunction operate as res judicata and consequently dismissed the suit. However, the learned first Appellate Court reversed the finding holding that in terms of the orders passed by this Hon’ble Court reversed the finding holding that in terms of the orders passed by this Hon’ble Supreme Court, previous judgment is not to come in the way of the plaintiff in filing a suit for possession. After returning such finding, the learned first Appellate Court relied upon Clause 16 of Exhibit PX which deals with the procedure meant for appointment of incumbent to return a finding that in case there is no nomination, the suitable male disciple would be appointed by the Bhek with the consent of Sampradayacharya and in case of difference of opinion, the consent of Sampradayacharya would be final. Thus, it was found that either the successor is to be nominated by the outgoing Mahant or he is to be appointed by the Sadhu Samaj but there is no procedure of testamentary succession. The learned first Appellate Court found that the procedure as mentioned by the plaintiff in Para No. 7 of the plaint has not been disputed by the defendants. The first Appellant Court considered the testimony of the plaintiff Mahant Jamna Dass PW1 and testimony of PW3 Ramudass Chela Ram Dass, PW5 Dhanpat, PW6 Badlu Ram and DW8 Gaja Nand. The Court also considered the writing of Chhadarposhi conducted on 27.12.1963 i.e. 17th day of the death of Mahant Nitya Nand and photographs to return a finding the Mahant Jamna Dass was duly appointed as successor Mahant of the said Gaddi after the death of Mahant Nitya Nand. The Court also considered the claim of the defendants of testamentary succession vide Exhibit D-2 and found that such Will is of no consequence as per custom of Gaddi.
4. Learned Counsel for the appellant in the present appeal has raised two fold arguments. Firstly, Hon’ble Supreme Court vide order dated 2.2.1987 has set aside the judgment passed by the High Court in the Regular Second Appeal and restored the judgment of the learned first Appellate Court. The learned first Appellate Court has found that the plaintiff is not proved to be the owner of the suit property. Therefore, once the judgment of the learned first Appellate Court has been restored, the finding recorded therein would operate as res-judicata. The second argument is that the learned trial Court has returned finding on Issue No. 1 against the plaintiff on the basis of previous judgment and decree passed by the learned first Appellate Court as restored by the Hon’ble Supreme Court, therefore, the finding recorded by the learned first Appellate Court on issue No. 1 were being recorded for the first time and the learned first Appellate Court should have sought report on Issue No. 1 from the learned trial Court before returning the finding on the aforesaid issue on merits.
5. After hearing arguments of learned Counsel for the appellant, I do not find any substance in both the arguments. The order passed by the Hon’ble Supreme Court on 02.02.1987 in Civil Appeal No. 299 of 1987 titled Dadu Dayalu Maha Sabha Jaipur (Rajasthan) v. Mahant Jamna Dass reads as under-
Special Leave granted. The appeal is heard. Since the High Court has not and could not have in the circumstances of the case reversed the finding of the trial Court and the First Appellate Court that the plaintiff was not in possession of the suit property on the date of the filing of suit, it could not have reversed the decree passed by the First Appellate Court and made a decree for injunction for which suit had been brought. We, therefore, set aside the judgment and decree of the First Appellate Court. This judgment will not come in the way of the plaintiff/respondent filing a suit for possession, if he is, so advised.
The appeal is accordingly allowed. No costs.
6. Admittedly, the previous suit was suit for injunction. In the said suit finding was returned by the trial Court that the plaintiff has failed to prove the ownership and possession and, thus, the suit for injunction was dismissed. Such finding was affirmed in appeal as well. This Court in second appeal reversed the findings recorded by the learned first Appellate Court after admitting additional evidence and held that the plaintiff is in possession of the suit property. In the said circumstance, above said order of Hon’ble Supreme Court was passed whereby judgment and decree passed by the High Court was set aside and liberty was given to the plaintiff to file a suit for possession.
7. A perusal of order passed by the Hon’ble Supreme Court shows that the finding that plaintiff was not in possession in a suit for injunction recorded by this Court was set aside and, therefore, it was clarified that the judgment of the Court will not come in the way of the plaintiff to file a suit for possession. Meaning thereby in a suit for possession, the plaintiff could establish his title. The order of Hon’ble Supreme Court has to be read in its entirety. Once it is ordered that the judgment will not come in the way for suit for possession, the suit for possession could not be dismissed on the basis of previous judgment in a suit for injunction.
8. The argument that the learned trial Court has not recorded any finding on the merits of Issue No. 1 and, therefore, the learned first Appellate Court should have sought the report on Issue No. 1 is again not tenable. The learned first Appellate Court has considered the entire evidence and returned a firm finding of fact that the plaintiff is owner of the suit land. Mere fact that finding on Issue No. 1 was not returned by the trial Court will not debar the learned first Appellate Court to return a finding on Issue No. 1 on merits. The learned first Appellate court is a final court of fact and is competent to examine the evidence to return a finding on the basis of appreciation of evidence. Once a finding has been returned, it is not open to the appellant to dispute the competency of the Court to return finding on such issue.
9. In view of the above, I do not find that any of the findings recorded by the learned first Appellate Court suffers from any patent illegality or irregularity which may raise any substantial question of law for determination by this Court in second appeal Dismissed.