P.N. Shinghal, J.
1. This is an appeal by the plaintiff against the appellate judgment and decree of the Senior Civil Judge, Jaipur City No. 2, dated November 21, 1961, dismissing her suit with costs.
2. The controversy, which relates to the right of 'seva puja' and management of the temple of Shri Murli Manoharji in Jaipur, has continued for a little over four decades, but it will be sufficient to make a mention of those facts which are relevant for the disposal of this appeal. It is not in dispute that the temple in question was built by Mansaram, the common ancestor of the parties, and in that temple Mansaram installed the idol of Thakurji. He had four sons - Seyaram, Motiram, Gulabchand and Gumaniram. It is admitted that Gulabchand died without any issue. Plaintiff Smt. Narayani is the daughter of Giyarisilal, a representative of Motiram's branch. Giyarisilal died in Section 1962 and his widow Smt. Chai died in Section 1978. The contesting defendant Durgalal is the son of Narayan, who represented Sevarains branch of the family, Smt. Nashi also represented Motiram's branch, and as she died during the pendency of this second appeal, she is represented by her daughters Smt. Chand and Smt. Suraj. Smt. Teejan was a representative of the branch of Gumaniram, but as she died her name was struck off without impleading any one as her legal representative. Both Smt. Nathi and Smt. Teejan were arrayed as defendants.
3. It is not disputed that after the death of her mother Smt. Ghai, there was litigation between plaintiff Smt. Narayani and the contesting defendant Durgalal as Smt. Narayani's right to have her turn or 'osra' for the management and 'seva puja' of the deity was denied on the ground that she could not perform any such duty because of her sex. So also it is admitted that the dispute ultimately went to the Chief Court of the former Jaipur State and that Court gave its judgment Ex. 10 on January 19, 1926, by which it was decided that the present plaintiff Smt. Narayani could not be denied her right of 'osra' because of her sex. It appears, however, that in spite of that judgment of the highest Court of the land. Smt. Narayani was not allowed to take her turn. She made repeated attempts to secure her 'osra' with the help of the State Government, and after several failures and adverse orders, the State Govt. ultimately made order Ex. 15 on July 8, 1957, directing the Devasthan department to give Smt. Narayani her turn by dividing the property, but that order has remained unenforced.
4. It so happened, however, that Narayan, father of defendant Durgalal, instituted a suit on May 24, 1950, as the manager and 'pujari' of the suit temple. In that suit he impleaded Smt. Narayani as one of the defendants, the other defendants being Smt. Nathi and Smt. Teejan. They were not, however, impleaded as co-shebaits. In fact Narayan took the plea that he was the sole 'pujari' and manager of the temple and that the defendants had taken unlawful possession of certain properties of the temple. He therefore prayed for a declaration, as well as a decree for possession, against the defendants. The claim was contested by Smt. Narayani and others and ultimately the Civil Judge of Jaipur decided on February 29, 1956, by his judgment Ex. 16, that Narayan was not the sole 'pujari' or manager of the temple, that the temple was divided into four 'dhams' or branches in equal shares, and that while Smt. Narayani and Gopal had their turns of six months each, Narayan and Smt. Teejan had turns of one year each for managing the temple and performing its 'seva puja'
5. It seems that in spite of these two judgments in her favour, Smt. Narayani did not succeed in getting her turn or 'osra', and so she raised the present suit on June 4, 1957, with the allegation that there was a usage amongst members of the different branches of the family that the worship and the management of the affairs of the deity and its properties should be performed by 'osras' or turns, and that the various 'osre-dars' appropriated the offerings and the income of the temple during their respective turns. The plaintiff therefore contended that after the death of her father Giyarisilal, her mother Smt. Chai worshipped and managed the affairs of the temple in accordance with her turn. On her death, the plaintiff did the same. The plaintiff further pleaded that as Smt. Nathi also belonged to Motiram's branch, she shared with her the 'osra' of one year by dividing it into two turns of six months each. Thus the plaintiff contended that defendant Durgalal had his turn for one year as the representative of his father Narayan, while Smt. Teejan had a similar turn of one year as the representative of Gumaniram's branch. On this basis, the plaintiff made the further submission that as defendant Durgalal did not follow the 'osras' or turns, she was entitled to recover Rs. 650 on account of her share in the rental income of the deity, and she also claimed that the right of worship and management should be partitioned by fixing the 'osras' for which a detailed scheme may be framed so that it may bind the parties.
6. The suit was mainly contested by Durgalal, defendant No. 1. He denied the right of the plaintiff and other defendants to worship the deity and manage its affairs, and pleaded that the 'osra' right of Giyarisilal, who represented Motiram's branch, devolved on him after Giyarisilal's death and not on Smt. Chai or the plaintiff as they were females and were not entitled to perform 'seva puja'' of the deity. It was further pleaded by Durgalal that by virtue of the complaints which the plaintiff had made to the charity department of the former Jaipur State in 1938 and 1939, which were reiected, the plaintiff's right of 'osra' was lost by the bar of limitation on account of his adverse possession Defendant Durgalal also took the plea that the suit was barred by Section 92 of the Civil Procedure Code. The other two defendants supported the plaintiff's right to the 'osra' and her contention that she had a one-sixth share in the income, but they took the plea that the suit as framed was not maintainable.
7. The trial court framed 11 issues and decided them all in favour of the plaintiff. It held that she was entitled to her 'osra', that her claim was not barred by limitation, that Section 92 C. P. C. did not apply and that the finding in the earlier case which was decided by the judgment of the Civil Judge Ex. 16 dated February 29, 1956, was not res judicata between the parties. He therefore decreed the suit by his judgment dated May 30, 1960, and declared that the right to hereditary office of shebaitship shall be divided into four shares and that plaintiff Smt. Narayani shall have her turn or 'osra' for a period of six months after defendant Durgalal had enjoyed his turn for the same period. He also directed that the plaintiff shall be entitled to one-sixth share in the income, and that a Commissioner shall be appointed who shall make an enquiry into the quantum of the income during the preceding three years. Several other directions were given in the judgment and these were all incorporated in the trial court's decree. It was against that judgment and the decree that defendant Durgalal preferred an appeal to the District Judge, and as it has been decided by the impugned judgment of the Senior Civil Judge dated November 2, 1961, by which the plaintiff's suit has been dismissed as aforesaid, she has preferred this second appeal.
8. A perusal of the impugned judgment shows that two questions were urged for the consideration of the lower appellate court: (i) whether the earlier judgment Ex. 16 dated February 29, 1956 could be said to operate as res judicata in favour of the plaintiff and (ii) whether the suit was barred by limitation. The learned Judge has expressly stated that the findings of the trial court on the other points in controversy were not urged for his consideration and he there-fore did not think it necessary to decide them. On the two points which he took up for consideration, the learned Judge held that the bar of res judicata could not be raised against defendant Durgalal, and that the suit was barred by limitation as it had been filed beyond a period of 12 years from the date of refusal and ouster of the plaintiff from the management and 'seva puja' of the temple.
9. Before me, Mr. Bhandari, learned counsel for the plaintiff-appellant, has strenuously argued that the learned Judge of the lower appellate court committed a serious error of law in thinking that the earlier judgment Ex. 16 dated February 29, 1956, was not res judicata on the question of the plaintiff's right to the 'osra', and that that finding should therefore be set aside in appeal. On the other hand, Mr. Datt, learned counsel for defendant-respondent Durgalal has argued that the aforesaid judgment does not operate as res judicata and that there is no reason to disturb the finding of the lower appellate court on that account. So the question which arises for consideration in this second appeal is whether judgment Ex. 16 would operate as res judicata in the present case.
10. A perusal of plaint Ex. 6 dated May 24, 1950 filed by defendant Durgalal's father Narayan shows that that suit was instituted by the idol of Shri Murli Manoharji through its manager and 'pujari' Narayan. In paragraph 4 of the plaint, Narayan described himself as manager and 'pujari' of the temple. While he arrayed the present plaintiff Smt. Narayani as well as Smt. Nathi and Smt. Teejan as defendants, he did not describe them as co-shebaits. On the other hand, the plaint shows that they were treated as trespassers, and the plaintiff expressly asked for their dispossession as well as for the issue of an injunction restraining them from interfering with the temple property. The suit was instituted in the Court of the Civil Judge of Jaipur, and it was disposed of by the judgment of that court Ex. 16 on February 29, 1956. That judgment makes a mention of the defence taken by defendants Smt. Narayani, Smt. Nathi and Smt. Teejan. According to it, all three of them pleaded that the temple did not belong to Narayan and that all the cosharers (or co-shebaits) had their right or 'osra' and that they had been enjoying their turns in that capacity It was also pleaded that the suit properties did not belong to the temple. It was therefore an important point at issue between the parties whether Narayan, father of the present defendant respondent Durgalal, was the sole 'puiari' and manager of the temple in question, and this was expressly covered by issue No. 1. The learned Civil judge considered the evidence of the parties bearing on that issue and he recorded a finding that all the four contestants, namely, Narayan, Smt. Narayani Smt. Teejan and Gopal had their 'osras'. He clearly decided that while Narayan and Teejan had their 'osras' for one year each, Smt. Narayani and Gopal had their 'osras' for six months each, and that Narayan was not the sole 'pujari' and manager of the temple.
11. After recording this finding, the learned judge went on to consider whether the suit properties belonged to the temple, and he reached the conclusion that this was not so, It was on the basis of these two important findings that the learned judge dismissed the suit with costs. It is not disputed that an appeal was preferred against that judgment and the consequent decree, but it was dismissed by the learned District Judge of Jaipur on July 24, 1957. In fact both the learned counsel for the parties placed before me certified copies of the judgment in that appeal in order to show that it was dismissed by the court concerned,
12. It has not been disputed by Mr. Datt that the former suit which gave rise to judgment Ex. 16 was between the same parties and that those parties were litigating under the same title as in the present case. The learned counsel has also not disputed that the court trying the former suit was competent to try the suit which has given rise to the present appeal and that the question regarding the rights of 'osra' of the parties has been heard and decided in that suit. The learned counsel has however argued that this Court should not raise the bar of res judicata against defendant Durgalal for three reasons. Firstly, he has submitted that the plaintiff has not produced a copy of the written statement which was filed in the former suit and so. according to the learned counsel, one essential condition for the application of Section 11 of the Code of Civil Procedure has not been fulfilled. To support this argument, the learned counsel has placed reliance on Bhanwarlal v. Raja Babu, ILR (1964) 14 Raj 386 and Isher Singh v. Sarwan Singh, AIR 1965 SC 948. Secondly, the learned counsel has argued that as a specific issue was not framed on the question of res judicata in the present suit, the point could not be considered in this second appeal. Thirdly, it has been submitted that the finding in judgment Ex. 16 in regard to issue No. 1 was not necessary for the disposal of that suit, so that the matter was not substantially in issue in the former suit within the meaning of Section 11. I shall deal with each of these points separately.
13. As regards the failure of the plaintiff to file a copy of her written statement in the earlier suit, it would be sufficient to say that it is essentially a question of fact whether a matter was directly or substantially in issue in the former suit, and it has to be decided with reference to all the circumstances of the case. It cannot be laid down as an inexorable rule that a party shall be debarred from raising the bar of res judicata if it does not produce a copy of the written statement, even though it files a copy of the plaint, the issues and the judgment for the consideration of the court which tries the subsequent suit. As has been stated, the plaintiff has filed a copy of the earlier plaint (Ex. 6) which was filed by Narayan, father of the present defendant-respondent Durgalal, on May 24, 1950, in the court of the Civil Judge of Jaipur. That plaint is sufficient to show that the suit was instituted by the deity through its manager and 'Pujari' Narayan, and, as has been stated, this was reiterated in paragraph 4 as well. A reading of the other paragraphs leaves no room for doubt, that the other defendants Smt. Narayani. Smt. Nathi and Smt. Teejan were not impleaded as co-shebaits but were, on the other hand, impleaded as trespassers on the temple's property. It is true that a copy of the written statement is not on the record, but the judgment (Ex. 16) makes a mention of the defence which was taken by the defendants in that suit.
It has been stated in the judgment that the defendants had taken the plea that the temple did not belong to Narayan alone but that, on the other hand, it belonged to all the other co-sharers of the 'osras' and that those 'osredars' had been enjoying their rights as such. The judgment also shows that a specific issue (issue No. 1) was framed on the question whether Narayan was the sole 'pujari' and manager of the temple. In these facts and circumstances, I find no difficulty in appreciating the plea of res judicata even though a copy of the written statement has not been filed, and there is no force in the submission that I should decline to examine that point simply because a copy of the written statement has not been placed for the court's consideration. It may also be mentioned here that even though the question of res judicata was considered by both the courts below, it was not contended by the learned counsel for Durgalal in any of those courts that a consideration of the plea should be ruled out in the absence of a copy of the written statement. In fact even though Durgalal was unsuccessful in the trial court and preferred an appeal against its judgment, he did not make this a ground of his appeal.
I am therefore quite satisfied that the argument which has been raised for the first time now, is of no substance and should be rejected. I have gone through the two cases cited by Mr. Datt but it has not been held in any of them that if the material on the record is quite sufficient for the purpose of deciding whether a matter was directly or substantially in issue in the former suit, even then that plea should be rejected merely because a copy of the written statement has not been filed for the court's consideration.
14. Coming to the second argument of Mr. Datt, it no doubt appears that an issue was not framed on the question whether the earlier judgment Ex. 16 operated as res judicata for purposes of the present case, but I find that the point was raised for the consideration of the trial court and it was expressly considered at length while considering issues Nos. 6 and 7. The learned Munsiff gave his reasons for holding that the judgment in question operated as res judicata. As Smt. Narayani's suit was ultimately decreed by the trial court, defendant Durgalal preferred an appeal against it. I have gone through the memorandum of that appeal and it appears that Durgalal did not take the plea that the question of res judicata should not have been considered by the trial court as there was no issue on the point. All that was contended was that the doctrine of res judicata was not applicable to the case and that it could only be understood by allowing additional evidence, which may be taken in the interest of justice even in appeal. So it appears that far from raising an objection against the consideration of the question of res judicata, Durgalal very much wanted it to be taken into consideration by the court of first appeal. A reading of the judgment of that court also shows that Durgalal did not raise an objection that the court should not consider the question of res judicata, and it is quite futile for the learned counsel to submit now at this late stage, that consideration of the question of res judicata should be left put because it was not covered by a specific issue. It appears that the parties fully knew that the question was of considerable importance and was an essential point in controversy between them and it should not therefore matter if, in view of all the facts and circumstances mentioned above, an issue was not directly framed in regard to it.
15. Coming to the third point, it has been argued by Mr. Datt that the decision on issue No. 1 in the former suit was not necessary and that as it did not dispose of the dispute between the parties, the finding in regard to it cannot operate as res judicata for purposes of the present case. In this connection, the learned counsel has made the further submission that when that was so, and the finding in the earlier suit was not necessary for its disposal, the courts below committed an error in taking it into consideration. For this, the learned counsel has placed reliance on R. Srinivasa Row v. Kaliaperumal, AIR 1966 Mad 321:Gopala Venkatanarasimharayanim Bahadur v. China Veeraswami, AIR 1935 Mad 551; Upendra Nath Bose v. Lall, AIR 1940 PC 222; Shankarlal Patwari v. Hiralal Murarka, AIR 1950 PC 80; S. Hanumant Rao v. S. Amrutamma, AIR 1966 Andh Pra. 221; Pritam Kaur v. State of Pepsu, AIR 1963 Punj 9 (FB) and Laxman Shivshankar v. Saraswati, AIR 1961 Bom 218.
16. Now, in order to decide whether the bar of res judicata can be raised in a given case, it is necessary for the court to examine the nature of the suit, the issues joined by the parties and the actual decision of the court concerned. It is on a consideration of these facts that a court can be in a position to decide whether the earlier judgment or finding would operate as res judicata.
17. As has been mentioned, the earlier suit was instituted by the deity through Narayan as its manager and 'pujari'. This was disputed by the contesting defendants, including the present plaintiff Smt. Narayani, for they claimed that they were also co-osredars of the temple. The trial court therefore framed a specific issue (issue No. 1) on the question whether Narayan was the sole 'pujari' and manager of the temple. As has been stated, the court ultimately held that Smt. Narayani, Smt. Teejan and Gopal were co-osredars and that Narayan was not the sole 'pujari' and manager of the temple. The Court also recorded its finding regarding the period of the 'osras' of these four persons and negatived the plaintiff's claim that he was the sole shebait of the temple.
18. The question is whether this was a point which was necessary for the disposal of the suit or, in other works, the question is whether this point was directly and substantially in issue in that suit. In order to arrive at a decision, it is necessary to examine the question whether one of the co-shebaits can institute a suit on behalf of the deity without impleading the co-shebaits.
19. The duties of a shebait are both spiritual and temporal, for he is not only responsible for the 'Puja' of the deity, but also manages its affairs. Ordinarily when there are more shebaits than one, in the eye of law, they constitute one body of shebaits even though they may be taking their 'osras' or turns according to a mutual arrangement, and all of them have to act together, unless there is an express direction to the contrary by the grantor. The law on the point has been fully examined in 'The Hindu Law of Religious and Charitable Trust' by Bijan Kumar Mukherjea (Tagore Law Lectures-1936), 1962 edition. The following observation occurring at p. 232 of that treatise is of great importance and I can do no better than reproduce it for purposes of this case,
'As all the shebaits form one body in the eye of law, the deity is represented by all of them acting together and no one shebait can be said to represent the deity in part or to possess interest as such shebait in any particular portion of the idol's property.'
For this reason, all the shebaits must join as plaintiffs. But it is permissible for one of the shebaits to file a suit to recover a part or whole of the property of the temple if he makes the other shebaits parties defendants to the suit when they are unwilling to join as plaintiffs. On this point also, the following observation occurring at page 233 of the aforesaid treatise is of great relevance, 'If the right of a co-shebait is denied, he need not be joined as a party, but if the denial turns out to be unfounded, the suit is liable to be dismissed.'
20. It is therefore quite apparent that the suit which was instituted on May 24, 1950, by defendant Durgalal's father Narayan on behalf of the deity, was not maintainable as he had not impleaded the other co-shebaits as such, and had not even averred that they were co-shebaits. It was for that reason that Smt. Narayani and the other defendants, who claimed to be co-shebaits, assailed Narayan's right to maintain the suit. Issue No. 1 which related to the question whether Narayan was the sole 'pujari' and manager of the temple, was therefore a necessary and a substantial point at issue in the case, for if this was not so, and if the plea of the three defendants that they were co-shebaits was found to be correct, it was natural for the trial court to conclude that the suit could not be maintained and had to be dismissed. As has been mentioned, the court decided that Narayan was one of the four co-shebaits and, on that finding alone, the suit should have been dismissed by the trial court. It is true that the court proceeded to consider the other question whether the suit properties belonged to the deity, and recorded a finding in that respect against the deity, but it cannot be said that the dismissal of the suit was based only on that other finding and that it did not follow as a result of both the findings, namely, that Narayan was not the sole shebait of the temple and that the suit properties did not belong to it. When this was so, it is futile to contend that issue No. 1 was not a substantial or necessary issue for decision in the former suit, The cases cited by Mr. Datt, to which reference has been made above, contain nothing which could be said to avail the defendant-respondent Durgalal for they only lay down that the decision of an issue which is not necessary or substantial for the disposal of the former suit does not operate as res judicata in the subsequent suit.
21. For the reasons mentioned above, the learned Judge of the lower appellate court was clearly in error in thinking that the decision contained in judgment Ex. 16 that Smt. Narayani was one of the co-shebaits of the temple and had a specified right of 'osra' or turn did not operate as res judicata, and I have no hesitation in setting aside that finding.
22. It follows therefore that as the question whether Smt. Narayani, the present plaintiff, was a co-shebait or a co-pujari and manager of the temple in question has been conclusively decided by judgment Ex. 16 dated February 29, 1956, in her favour, the question cannot be re-agitated for consideration in this second suit and the finding of the trial court is quite correct in this respect It is conceded that in this view of the matter the plea of limitation, which was the only other point which was urged for the consideration of the lower appellate court has no substance at all and that the suit cannot be said to be barred by limitation.
23. In the result, the appeal is allowed,the judgment and decree of the Senior CivilJudge, Jaipur City No. 2, dated November21, 1961, are set aside and the decree of thetrial court dated May 30, 1960 restored, withcosts througout against the contesting defendant Durgalal. Leave to appeal is prayed for,but is refused.