# Gopal Singh Visharad v. Jahoor Ahmad and others

- **Citation:** (2011) 1 ILRA 387
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-28
- **Case number:** Civil Application No. 16(O) of 2010
- **Bench:** S.U. Khan, Sudhir Agarwal, V.K. Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-singh-visharad-v-jahoor-ahmad-and-others-41848
- **Pages:** 18

## Text

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1 All] Gopal Singh Visharad V. Jahoor Ahmad and others
387
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.04.2011

BEFORE
THE HON'BLE S.U. KHAN, J.
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE V.K. DIXIT, J.

Civil Application No. 16(O) of 2010

Gopal Singh Visharad
 ...Petitioner
Versus.
Jahoor Ahmad and others ...Respondent

With:
Civil Application No. 17(O) of 2010; Civil
Application No. 18(O) of 2010; Civil
Application NO. 19(O) of 2010; Objection
No. 20 of 1989; C.M. Application No.
21(O) of 2010; C.M. Application No.
22(O) of 2010; C.M. Application No.
23(O); C.M. Application No. 24 (O) of
2010

(A)-Code of Civil Procedure-Section 2(2)-
Distinction
between
"judgment"
and
'Decree' explained judgment contains
reasons
and
conclusions-but
decree
contains
formal
expression
of
an
adjudication determining rights of the
parties.

Held: Para 37

The distinction between the "judgment"
and "decree", therefore, is that the
judgment contains reasons as well as the
conclusions
thereof
but
the
decree
contains
formal
expression
of
an
adjudication
conclusively
determining
right of parties with regard to all or any
of the matter in controversy in the suit.
The phrase "all matters in controversy in
the suit" would cover the ultimate
conclusion and adjudication made by the
Court which should form part of decree
as it is this part which has to be normally
put on for execution as provided in Part
II of CPC. It talks of execution of
"decree" and not of the judgment. It is
for this reason Section 33 provides that
after the case has been heard, the Court
shall pronounce judgment and on such
judgment a decree shall follow. It is the
conclusive
determination,
therefore,
which must be expressed formally in the
decree and not the conclusions on
various grounds/ issues considered by
the Judge in judgment. In the context
we are of the view that adjudication
determining
conclusively
rights
of
parties by the Court, which obviously
being
the
majority
decision
would/should contain the part of decree
and not just and mere "expression"
given by all the Judges.

(B)-C.P.C.
Order
XX
Rule-7-Date
of
Decree-should
be
the
date
when
judgment signed-Signature of judges on
decree may be on different date but the
date of Decree must bear the same date
of judgment.

Held: Para 45

This is also evident from Order XX Rule 8
which provides that decree can be signed
by another Judge where the Judge
pronouncing the judgment vacated the
office without signing decree or if the
Court cease to exist, as the case may be.
In this case also D.V. Sharma, J.
pronounced the judgment and retired on
01.10.2010. Hence there was/is no
occasion for him to sign the decree. V.K.
Dixit, J. has been nominated to the
Bench who can sign the decree but
obviously he would not mention the date
30.09.2010 under his signatures. The
Judge's
signature,
therefore,
may
contain the date when sign the decree
but the date of decree would be the date
of pronouncement of judgment. The
objection, therefore, suggesting that the
date of decree must be changed as the
date when signed, is hereby rejected.
Case law discussed:
AIR 1946 Madras 348; AIR 1950 Orissa
125(FB); AIR 1954 Hyderabad 104; AIR 1961
MP 223; AIR 1962 Patna 398; AIR 1969
Gujarat 152; (2000) 1 LRI 606
388 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. These objections have been filed
against the draft decree prepared by Registrar
of this Court pursuant to judgment dated
30.09.2010 whereby four original suits were
decided. The suits were initially filed in the
Court of Civil Judge, Faizabad wherefrom
transferred to this Court pursuant to order
dated 10.07.1989 passed on applications
made by State of U.P. The matter was heard
by a Special Bench consisting of three
Judges constituted by Hon'ble the Chief
Justice as requested by Division Bench in the
order dated 10.07.1989 whereby transfer was
allowed.

2. The suits were decided on
30.09.2010. All the three Judges have given
their
separate
decisions.
The
decree,
therefore, has to be prepared in the light of
majority decision or unanimous decision, if
any, though contained in separate decisions
of all the three Judges.

3. For the purpose of preparation of
decree the procedure prescribed in the High
Court Rules read with Code of Civil
Procedure (hereinafter referred to as "CPC")
has to be observed.

4. The procedure for preparation of
decree is contained in Order XX Rules 6, 6A, 7, 8, 9 and 18 of CPC. In the High Court
Rules Chapter VIII Rules 8, 9, 10 and 11
provide procedure for preparation of decree.

5. The Registrar has drawn the decree
and put up the same to notice of all the parties
as contemplated under Chapter VIII Rule 9 of
the High Court Rules. Some of parties have
filed their objections which the Registrar has
placed for consideration by Court under
Chapter VIII Rule 10 of the High Court Rules.

6. We proceed to consider these
objections suitwise.

OOS No. 1 of 1989

7. In OOS No. 1 of 1989 (hereinafter
referred to as "Suit-1") two objections have
been filed. First is Civil Application No.
16(O) of 2010 filed on behalf of Nirmohi
Akhara. It says that in view of totality of
judgement and in view of composite delivery
of judgment in all connected suits, entire
operative part of judgement of one of us
(Sudhir Agarwal, J.) should be made part of
decree in view of Order XX Rule 6 CPC. The
decree should agree with the judgement. It is
important fact which should be inserted in
decree. The judgement of Justice Agarwal
does contain a map, Appendix-7, which
should be made part of decree alongwith
details contained in roman digit I to VII in the
judgment.

8. Another objection is C. M.
Application No. 21(O) of 2010, on behalf
of defendant no. 1/1, Farooq Ahmad son of
Jahoor Ahmad and defendant no. 10, Sunni
Central Board of Waqf. It refers to certain
corrections in the draft decree. In the
description
of
defendants,
name
of
defendant no. 1/1 is said to have been
written as Qk:[k vgen (Farookh Ahmad) in
place of Qk:d vgen (Farooq Ahmad).
Similarly in respect to defendant no. 9 it
says
that
it
should
be
mentioned
completely as Babu Priya Dutt Ram in
place of B. Priya Dutt and further since he
is no more a remark (now dead) should be
given. The next objection is that map Plan
1
prepared
by
Sri
Shiv
Shankar,
Pleader/Commissioner appointed by Court
in Suit-1 as mentioned by S.U. Khan, J. in
the operative part of his judgment should
be annexed/enclosed with the decree. The
date of decree should be changed, as it
1 All] Gopal Singh Visharad V. Jahoor Ahmad and others
389
ought to be the date when the decree is
prepared and signed and not the date of
judgment. Lastly it says that operative part
of the judgment of Sudhir Agarwal, J. as
find mentioned in Para 4566 at pages
5079-5081 should be mentioned in its
entirety and Appendix-7 referred to in the
said judgement i.e. the operative part
should be made part of the decree.

9. Sri Hari Shankar Jain, learned
counsel appearing on behalf of Hindu
Mahasabha though is not a party in Suit-1
but during the course of oral arguments
submits that the decree in respect to Suit-1
is not clear and it is not evident whether
the suit has been decreed or not. Therefore,
the manner in which it has been prepared is
not in accordance with Order XX Rule 6
CPC read with Chapter VIII Rule 8 of
High Court Rules.

10. We shall first find out, what relief
has been granted to plaintiff in Suit-1 and
how the suit has been decided by three
judges in their separate decisions. Here we
may mention one more aspect. Since the
judgment of three Judges are running in
several volumes consisting of 8666 pages,
we would refer from the relevant volume,
page number and para number of the
judgment of concerned Judge. Further,
fortunately this judgment has also been
reported in 2010 ADJ page 1 (Special
F.B.) and it is in three volumes. For
convenience we will also refer page number
and para number of the said report.

11. The judgment of S.U. Khan, J. has
dealt with certain issues of Suit-1 separately
but on page 261 (page 109 Volume 1 of the
report) it reads as under:

"In respect of findings on other issues
(except issues relating to relief) I fully agree
with the findings of my brother Sudhir
Agarwal, J. subject to any thing contrary
stated/found in this judgement of mine."

12. Issue No. 17, Suit-1 related to
relief and has been dealt with by S.U. Khan,
J. in his judgement at pages 262 to 276
(pages 109 to 114, Vol. I of the report).

13. However a reading of the
aforesaid shows that S.U. Khan, J. has not
granted any relief to plaintiff of Suit-1. It is
true that specifically nothing has been said
on the issue of relief of Suit-1 but we are of
the view that a relief if not granted, means it
has been rejected.

14. Sudhir Agarwal, J. has dealt with
issue No. 17, Suit-1 relating to reliefs in
paras 4554 and 4555, pages 5072-5073,
Vol. 21 (paras 4554-4555, pages 28672868, Vol. III of the report); para 4570,
page 5088, Vol. 21 (para 4570, page 2876,
Vol. III of the report); and, para 4571, page
5091, Vol. 21 (para 4571, page 2878, Vol.
III of the report). It decrees Suit-1 partly.
The Judge has made a declaration that
plaintiff has right of worship at the site of
dispute including the part of land which is
held by this Court to be the place of birth of
Lord Rama according to the faith and belief
of Hindus but this right is subject to such
restrictions as may be necessary by
authorities concerned in regard to law and
order, i.e., safety, security and also for the
maintenance of place of worship etc. Rest
of the relief has been specifically denied.

15. Dharam Veer Sharma, J. in his
separate judgment in OOS No. 1 of 1989 at
page 33 (page 3489, Vol. III of the report)
has held that plaintiff is not entitled for the
relief claimed and defendants are also not
entitled for special costs as initially the
plaintiff who filed the suit is no more. It
390 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
thus ordered that suit is dismissed with
easy costs.

16. Now we come to the question as
to what ought to be the contents of decree.

17. Order XX Rule 6 CPC provides
that the decree shall normally specify the
relief granted or other determination of
suit. In respect to Suit-1 we find that S.U.
Khan, J. has not granted any relief to the
plaintiff and D.V. Sharma, J. has held that
plaintiff is not entitled for any relief and
the suit is dismissed. In our view there is
no occasion in Suit-1 while preparing the
decree to mention other determination
when majority has not granted any relief to
plaintiff. It is only in the decision of Sudhir
Agarwal, J. where suit has been decreed
partly and some relief has been granted but
that is in minority so far as this aspect is
concerned.

18. Now the question would be
whether minority decision should also
form part of the decree or not.

19. Lots of arguments have been
advanced on this aspect. Reference was
made to Order XLI Rule 35 CPC which
provides where there are more Judges than
one and there is difference of opinion
among them it shall not be necessary for
any Judge dissenting from the judgment of
Court to sign the decree. It means that the
judgment of minority need not be signed
by such Judge.

20. To our mind this provision does
not help anyone in preparation of decree
hereat inasmuch as this provision is
applicable for preparation of decree by
Appellate Court. Here we have heard and
decided original suits transferred from
subordinate court. The High Court has
decided suits in original jurisdiction and
not as an Appellate Court. No other
provision in CPC throws any light on this
aspect of the matter.

21. Chapter XV of High Court Rules
makes certain provision in respect to
original and extraordinary original civil
jurisdiction. Rule 22 says trial of suits
removed by the Court from any Court
subject to superintendence of High Court
to be tried and determined by it in exercise
of extraordinary original civil jurisdiction
and provides that rules contain in Chapter
XV shall apply to such suits also.

22. Here also nothing is said about
the manner in which decree is to be
prepared by this Court particularly when
case has been heard by a larger Bench
consisting of three Judges and decisions
have been given separately by all the
Judges constituting the Bench. It is an
extraordinary situation. Normally a civil
suit when instituted in original course is
decided by Presiding Judge of the Court
which is obviously a Single Judge. When a
suit is transferred from subordinate Court
to High Court, then also it is normally
decided by a Single Judge. We have not
come across of any other illustration where
civil suits preferred before the civil judge
in subordinate court have been transferred
to this Court and tried, heard and decided
by a Special Bench consisting of three
Judges, more so when all the three Judges
have delivered their separate decision. This
is totally a novel situation. Learned
counsels for the parties also could not
assist this Court by placing any other
illustration or precedent of a similar kind.

23. Whether minority order of a
Bench should make part of decree or not,
therefore, has to be considered in the light
1 All] Gopal Singh Visharad V. Jahoor Ahmad and others
391
of what a "decree" is? It is defined in
Section 2(2) CPC and reads as under:

"2(2) "decree" means the formal
expression of an adjudication which, so
far as regards the Court expressing it,
conclusively determines the rights of the
parties with regard to all or any of the
matters in controversy in the suit and may
be either preliminary or final. It shall be
deemed to include the rejection of a plaint
and the determination of any question
within Section 144, but shall not include,--

(a) any adjudication from which an
appeal lies as an appeal from an order; or

(b) any order of dismissal for default.

Explanation--A decree is preliminary
when further proceedings have to be taken
before the suit can be completely disposed
of. It is final when such adjudication
completely disposes of the suit. It may be
partly preliminary and partly final;"

24. It talks of formal expression of an
adjudication, which, so far as regards the
Court
expressing
it,
conclusively
determines rights of parties with regard to
all or any of the matters in controversy in
the suit.

25. The term "decree" has been
defined
so
as
to
contain
"formal
expression" of an adjudication. These
words have not been used in Section 2(11)
which defines judgement. Though in
Section 2(16) the word "order" contains
the phrase "formal expression" but it is the
formal expression of any decision of civil
court and not the formal expression of
adjudication.
The
judgment
contains
statement given by Judge on the ground of
a decree. The decree, therefore, need not
contain a statement of reasons given by
Judge. Then the question would arise as to
what
is
the
meaning
of
words,
"adjudication", "formal" and "expression".

26. In "Legal Thesaurus-Deluxe
Edition 1980" by William C. Burton at
page 11 the term "adjudication" has been
defined as under:

"Adjudication-act
of
judgment,
adjudgment,
arbitrage,
arbitrament,
arbitration, authoritative decision, award,
conclusion, decision, declaration, decree,
deliberate determination, determination,
determination of issues, disposition, edict,
final
determination,
final
judgment,
finding, irrevocable decision, judgment,
judgment on facts, judicial decision,
opinion, order, order of the court,
proclamation, pronouncement, reasoned
judgment, res judicata, resolution, result,
ruling, sentence, settled decision, verdict."

27. In P. Ramanatha Aiyer's "The
Law Lexicon-The Encyclopaedic Law
Dictionary with Legal Maxims, Latin
Terms, Words and Phrases" 2nd Edition
Reprint 2007 at page 11 the term
"adjudication" has been defined as under:

"Adjudication.
The
act
of
adjudicating; the process of trying and
determining
a
case
judicially.
The
application of the law to the facts and an
authoritative declaration of the result."

28. In "Black's Law Dictionary"
with pronunciations Fifth Edition at page
39 the term "adjudication" has been
defined as under:

"Adjudication. The formal giving or
pronouncing a judgment or decree in a
case; also the judgment given. The entry of
392 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
a decree by a court in respect to the parties
in a case."

29. In "Webster's Encyclopedic
Unabridged Dictionary of the English
Language" 1989 the meaning of word
"formal" at page 557 is:

"Formal- . . . . . . . being in
accordance with usual requirements . . . . .
. being a matter of form only; perfunctory .
. . . . pertaining to the form, shape or mode
of a thing, specially as distinguished from
the substance."

30. In "Legal Thesaurus-Deluxe
Edition 1980" by William C. Burton at
page 233 the term "formal" has been
defined as under:

"Formal-accepted,
according
to
established
form,
affected,
approved,
businesslike,
ceremonial,
ceremonious,
confirmed,
conventional,
customary,
decorous, fixed, following established
custom,
following
established
form,
following
established
rules,
formalis,
formalistic,
in
accordance
with
conventional
requirements,
inflexible,
mannered, observant of form, official,
polite,
pompous,
prescriptive,
prim,
proper, reserved, rigid, ritual, ritualistic,
set, starched, stiff, stilted, systematic,
traditional, unbending, uncompromising."

31. In "Concise Oxford English
Dictionary" 11th Edition at page 558 the
term "formal" has been defined as under:

"Formal-done in accordance with
rules of convention or etiquette . . . having
a
conventionally
recognised
form,
structure, or set of rules. . . . ."

32. In P. Ramanatha Aiyer's "The
Law Lexicon-The Encyclopaedic Law
Dictionary with Legal Maxims, Latin
Terms, Words and Phrases" 2nd Edition
Reprint 2007 at page 750 term "formal"
has been defined as under:

"Formal. Done in due form, or with
selemnity; according to regular method. Of
the outward form, shape or appearance,
not the matter or substance of a thing;
ceremonial;
required
by
convention;
observance of form and not of the spirit."

33. The term "expression" is defined
in "Webster's Encyclopedic Unabridged
Dictionary of the English Language"
1989 at page 503:

"Expression-. . . . . the manner or
form in which the thing is expressed in
words; wording; phrases . . . . . . indication
of feeling, spirit, character etc. as on the
face, in the voice or in artistic execution . .
. ."

34. In "Legal Thesaurus-Deluxe
Edition 1980" by William C. Burton at
page 216 the term "expression" has been
defined as under:

"Expression-appearance,
demonstration,
disclosure,
display,
emergence, evidence, evincement, exhibit,
exhibition,
exposition,
exposure,
illustration, indication, instance, mark,
presentation,
presentment,
revealment,
revelation, show, showing, sign, token,
uncovering."

35. The term "expression" is defined
in "Concise Oxford English Dictionary"
11th Edition at page 503:
1 All] Gopal Singh Visharad V. Jahoor Ahmad and others
393

"Expression-the action of expressing
something. A look on someone's face that
conveys a particular emotion. A word or
phrase expressing an idea. . . ."

36. The term "expression" in defined
in P. Ramanatha Aiyer's "The Law
Lexicon-The
Encyclopaedic
Law
Dictionary with Legal Maxims, Latin
Terms, Words and Phrases" 2nd Edition
Reprint 2007 at page 687:

"Expression. A word, phrase or form
of speech; the act of manifesting by action
or language."

37. The distinction between the
"judgment" and "decree", therefore, is that
the judgment contains reasons as well as
the conclusions thereof but the decree
contains
formal
expression
of
an
adjudication
conclusively
determining
right of parties with regard to all or any of
the matter in controversy in the suit. The
phrase "all matters in controversy in the
suit" would cover the ultimate conclusion
and adjudication made by the Court which
should form part of decree as it is this part
which has to be normally put on for
execution as provided in Part II of CPC. It
talks of execution of "decree" and not of
the judgment. It is for this reason Section
33 provides that after the case has been
heard, the Court shall pronounce judgment
and on such judgment a decree shall
follow. It is the conclusive determination,
therefore, which must be expressed
formally in the decree and not the
conclusions on various grounds/ issues
considered by the Judge in judgment. In
the context we are of the view that
adjudication
determining
conclusively
rights of parties by the Court, which
obviously being the majority decision
would/should contain the part of decree
and not just and mere "expression" given
by all the Judges.

38. The suggestion that decision of
Judge constituting minority, if not made a
part of the decree, such Judge may not sign
the decree, would not apply where the
decree is being prepared by the Court in its
original jurisdiction as a trial court. The
decree may be signed by all the Judges
constituting the Bench. It is necessary to
make the things clear unequivocally to
parties concerned. In this case categorical
and specific majority opinion on various
aspects between Judges has to be gathered
since the observations and expressions
have
been
made
with
reservations,
references etc. To our mind, it means when
an adjudication is made and it conclusively
determines rights of parties, only that part
should form the contents of decree. The
majority judgment finds that plaintiff is not
entitled to any relief or Suit-1 is to be
dismissed.

39. The extraordinary situation
demands extra ordinary procedure and
methods. We initially, therefore, were
inclined to hold that decision of Sudhir
Agarwal, J. constituting minority opinion
may be made part of the decree but we
ultimately after due diligence over the
matter decided to follow a method so that
things may be apparent and clear to all
parties. The way in which we intend to
proceed is not inconsistent with any
specific
provision
with
respect
to
preparation of decree contained in CPC or
High Court Rules.

40. We, therefore, direct that the
decree of Suit-1 should express Court's
formal
expression
of
adjudication
conclusively determining the rights of
parties with regard to all the matters in
394 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
controversy in suit. In our view, the decree,
therefore, in Suit-1 be prepared as under:

Order of the Court (Majority
Order):

S.U. Khan, J.-No relief granted.

D.V. Sharma, J.-Suit is dismissed
with easy costs.

41. So far as other objections are
concerned, the corrections mentioned in
paras 1 of C.M. Application No. 21(O) of
2010 shall be incorporated since no
objection has been raised in this regard.
With reference to objections contained in
paras 2 and 6 of the application, since the
conclusion of Sudhir Agarwal, J. is not to
be made part of decree, therefore objection
in this regard is rejected. The corrections
sought in para 3 of the application is
misconceived inasmuch as in the array of
parties of Suit-1 defendant no. 9 is
Superintendent of Police, Faizabad and not
B. Priya Dutt or Babu Priya Dutt Ram,
hence this correction sought by applicant is
rejected.

42. Now we come to objection taken
in para 5 of Application No. 21(O) of
2010. So far as the date of decree is
concerned, Order XX Rule 7 CPC reads as
under:

"7. Date of decree--The decree shall
bear the day on which the judgment was
pronounced, and, when the Judge has
satisfied himself that the decree has been
drawn
up
in
accordance
with
the
judgment, he shall sign the decree."

43. It is thus evident from Rule 7 that
so far as the date of decree is concerned, it
would be the same on which judgment was
pronounced but signature of the Judge on
decree shall be made or can be made
subsequently when he is satisfied that
decree has been drawn up in accordance
with judgement. Therefore, date under the
signature of Judges on decree may be
different but date of decree cannot be
different from that of the judgment. It has
to be the same, i.e., the date when the
judgement was pronounced.

44. Almost all the High Courts are
unanimous with the view that decree
comes into existence on the date of
judgment even though it is signed later. As
soon as the judgment is pronounced,
decree is there. In law it comes into
existence though it is not formally
prepared and signed on the same date. The
expression "date of decree" does not mean
the date on which it is signed but the date
on which the judgment is actually
declared. The provision is very clear and
admits no doubt. We are fortified in taking
the above view from the decisions in
Ventataraya Vs. Mallappa, AIR 1946
Madras
348;
Sri
Ram
Chandra
Mardaray Deo Vs. Bhalu Patnaik, AIR
1950 Orissa 125 (FB); Dagduba Vs.
Abdul Gafoor, AIR 1954 Hyderabad
104; Lalchand Vs. Kanhaiyalal, AIR
1961 MP 223; Rajeshwar Rai Vs.
Shankar Rai, AIR 1962 Patna 398; Bai
Vasanti Vs. Suryaprasad, AIR 1969
Gujarat 152; and, West Bengal Essential
Commodities
Supply
Corpn.
Vs.
Swadesh Agro Farming and Storage
Pvt. Ltd., (2000) 1 LRI 606.

45. This is also evident from Order
XX Rule 8 which provides that decree can
be signed by another Judge where the
Judge pronouncing the judgment vacated
the office without signing decree or if the
Court cease to exist, as the case may be. In
1 All] Gopal Singh Visharad V. Jahoor Ahmad and others
395
this case also D.V. Sharma, J. pronounced
the judgment and retired on 01.10.2010.
Hence there was/is no occasion for him to
sign the decree. V.K. Dixit, J. has been
nominated to the Bench who can sign the
decree but obviously he would not mention
the date 30.09.2010 under his signatures.
The Judge's signature, therefore, may
contain the date when sign the decree but
the date of decree would be the date of
pronouncement
of
judgment.
The
objection, therefore, suggesting that the
date of decree must be changed as the date
when signed, is hereby rejected.

46. With respect to objection raised
in para 4 of C.M. Application No. 21(O)
2010, since S.U. Khan, J. has not granted
any relief, the occasion to annex map Plan
1 as part of decree does not arise.

47. So far as Civil Application No.
16(O) of 2010 filed by Nirmohi Akhara is
concerned,
we
find
that
basically
objections raised therein are similar as are
contained in C.M. Application No. 21(O)
of 2010 filed on behalf of defendants no.
1/1 and 10 in Suit-1, which we have
already discussed and, therefore, both these
objections are disposed of as discussed
above.

48. The office is directed to prepare
decree of Suit-1 as directed above.

OOS No. 3 of 1989

49. Now coming to OOS No. 3 of
1989 (hereinafter referred to as "Suit-3")
we find that objections vide Civil
Application No. 17(O) of 2010 on behalf
of Nirmohi Akhara are in identical terms
as Application No. 16(O) of 2010.

50. So far as Suit-3 is concerned,
S.U. Khan, J. in his judgment at pages 262
to 276 (pages 109 to 114, Vol. 1 of the
report) has not said anything separately but
in a composite manner has declared that
Nirmohi Akhara is entitled to 1/3 share in
the property in dispute.

51. Sudhir Agarwal, J. however in
para 4557, page 5073, Vol. 21 (para 4557,
page 2868 Vol. III of the report) has held:

"4557. In view of our findings in
respect of issues no. 2, 3, 4, 9 and 14 the
plaintiff, Suit-3, is not entitled to any
relief."

52. Summarizing his findings on
various issues, in para 4570, at page 5089,
Vol. 21 (para 4570 at page 2877, Vol. III
of the report); Sudhir Agarwal, J has said:

"4570. . . . . .

9. Issue 13 (Suit-3)-The plaintiff is not
entitled to any relief in view of the findings
in respect of issues 2, 3, 4, 14 and 19."

53. In the ultimate conclusions
recorded in para 4571, page 5091, Vol. 21
(para 4571, page 2878, Vol. III of the
report) he says that Suit-3 is dismissed and
parties shall bear their own costs. It reads
as under:

"4571. In the result, Suit-1 is partly
decreed. Suits 3 and 4 are dismissed. Suit5 is decreed partly. In the peculiar facts
and circumstances of the case the parties
shall bear their own costs."

54. D.V. Sharma, J. has said in his
separate judgement in OOS No. 3 of 1989
at page 18 (page 3496 Vol. III of the
report) as under:
396 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

"The suit is dismissed with easy
costs."

55. In our view the Court's decision,
therefore, in majority is the decision of
Sudhir Agarwal and D.V. Sharma, JJ. and,
therefore, the decree shall contain the order
as under:

The Court's order (by majority of
Sudhir Agarwal and D.V. Sharma, JJ.):

"Suit is dismissed. Cost made
easy."

56. So far as objections raised in para
1 in Application No. 22(O) of 2010 is
concerned, we find that address given for
both the defendants no. 6/1 and 6/2 is the
same as mentioned in the substitution
application,
therefore,
no
change
is
required. However, we find that word
"Bazar" has been printed twice and,
therefore, the word "Bazar" at one place
shall be deleted. In the description of
defendant
no.
11
after
the
word
"Singarghat" word "Ayodhya" is already
there, hence no correction is required.

57. With respect to objection in para
2 of Application No. 22(O) of 2010 we
find that defendant no. 1 in Suit-3 is not
Babu Priya Dutt Ram but it is Sri Jamuna
Prasad Singh hence no correction is
required.

58. So far as objections contained in
paras 3 and 4 of the application are
concerned, the same stand rejected for the
reasons we have already given while
discussing similar objections in respect to
Suit-1.

59. The other objections on other
aspects of the matter stand rejected in view
of our discussion already made above
being similar.

OOS No. 4 of 1989

60. Now coming to OOS No. 4 of
1989 (hereinafter referred to as "Suit-4")
we
find
that
objection
vide
Civil
Application No. 18(O) of 2010 on behalf
of Nirmohi Akhara is in identical terms as
Application No. 16(O) of 2010.

61. So far as Suit-4 is concerned,
S.U. Khan, J. in his judgment at pages 262
to 276 (pages 109 to 114, Vol. 1 of the
report) has not said anything separately but
in a composite manner has declared that
Sunni Central Waqf Board is entitled to
1/3 share in the property in dispute.

62. Sudhir Agarwal, J. in para 4553,
page 5072, Vol. 21 (para 4553, page 2867
Vol. III of the report) has held:

"4553. In view of our finding on Issue
No. 3 since the suit is barred by limitation,
the question of entitlement of any relief to
the plaintiff does not arise as the suit itself
is liable to be dismissed."

63. Summarizing his findings on
various issues, in para 4570, at page 5084,
Vol. 21 (para 4570 at page 2874, Vol. III
of the report) he (Agarwal, J) said:

"4570. . . . . .

21. Issue 16 (Suit-4)-No relief since
the suit is liable to be dismissed being
barred by limitation."

64. In the ultimate conclusions
recorded in para 4571, page 5091, Vol. 21
(para 4571, page 2878, Vol. III of the
report) he (Agarwal, J) says that Suit-4 is
1 All] Gopal Singh Visharad V. Jahoor Ahmad and others
397
dismissed and parties shall bear their own
costs. It reads as under:

"4571. In the result, . . . . . . . . Suits 3
and 4 are dismissed . . . . . . . . . . . In the
peculiar facts and circumstances of the
case the parties shall bear their own
costs."

65. D.V. Sharma, J. has said in his
separate judgement in OOS No. 4 of 1989
at page 219, Vol. IV (page 3474 Vol. III of
the report) as under:

"The suit is dismissed but the parties
shall bear their own costs."

66. In our view the Court's decision
is the majority decision consisting of
Sudhir Agarwal and D.V. Sharma, JJ. and,
therefore, the decree shall contain the order
as under:

The Court's order (by majority of
Sudhir Agarwal and D.V. Sharma, JJ.):

"Suit is dismissed. Cost made
easy."

67. The objections otherwise on this
aspect stand rejected in view of our
discussion made above.

68. The objections vide para 1 of
C.M. Application No. 23(O) of 2010
intends to take note of certain fact which is
not borne out from the record. Till the
matter was decided or even when the
judgment
was
reserved
no
such
information was placed on record that
plaintiff no. 9 (Suit-4) Mahmud Ahmad
has expired. No application was also
placed on record for bringing his heirs on
record. We, therefore, at the stage of
preparation of decree cannot direct any
such change which requires verification of
certain facts. The objection as contained in
para 1 of application is hereby rejected.

69. The request made vide para 2 of
Application No. 23(O) of 2010 also, we
are afraid, cannot be granted. As per order,
in the array of parties after the name of Sri
Gopal Singh Visharad the word "deleted"
is already there. The name of Mahant
Suresh Das was impleaded as defendant
no. 2/1 and, therefore, it has been
mentioned in the same manner. Since there
is no order changing the chronology of
various defendants and, therefore, at this
stage we do not find any justification for
changing the chronology of defendants and
hence, no correction is required as
requested in para 2 of the application. It is
accordingly rejected.

70. So far as para 3 of Application
No. 23(O) of 2010 is concerned, we find
that description of party is the same as
contained in original plaint. Hence, no
correction can be permitted at this stage.
Regarding the death of Priya Dutt Ram,
Receiver, it is true that there is no order on
record to mention it in the array of parties
against defendant no. 9 in Suit-4 but this
fact has already been taken note in the
judgement of Sudhir Agarwal, J. and,
therefore, this fact can be mentioned in
array of parties. We direct that in the
description of defendant no. 9 in Suit-4
after description of defendant no. 9
following shall be added: "(now dead)".

71. Coming to the request made in
para 4 of Application No. 23(O) of 2010
we find that in the description of defendant
no. 21 it is already mentioned that he died
on 23.07.1994, therefore, nothing further is
required.
398 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

72. Rest of the request/objections as
made in paras 5 and 6 of Application No.
23(O) of 2010 are concerned, the same are
rejected for the reasons we have already
given while discussing similar objections
in regard to Suit-1.

OOS No. 5 of 1989

73. Now we come to OOS No. 5 of
1989 (hereinafter referred to as "Suit-5").
Three objections have been filed. Civil
Application No. 19(O) of 2010 is on behalf
of Nirmohi Akhara and it is in identical
terms as Application No. 16(O) of 2010.

74. Objection No. 20 of 2010 is on
behalf of defendant no. 11, All India Hindu
Mahasabha. Sri H.S. Jain, Advocate has
submitted that it is not evident from the
decree whether it is final decree or
preliminary decree. According to him the
decree is vague and is not inconformity
with Section 2(2) CPC. It should mention
the determination of issues on the basis of
majority judgment of Court which has not
been done. The operative part of the
judgment of all the three Judges has been
mentioned without indicating as to what
adjudication have been made by majority
opinion and what rights of parties to suit
have been determined. He relied on a
decision of Apex Court in S. Satnam
Singh and others Vs. Surendra Kaur
and another, 2009(2) SCC 562.

75. The third application is C.M.
Application No. 24(O) of 2010 filed on
behalf of defendant no. 4, Sunni Central
Board of Waqfs, defendant no. 5, Sri
Mohammad Hashim and defendant no. 26,
Hafiz Mohd. Siddiqui.

76. We first come to factual
objections raised in Application No. 24 (O)
of 2010 and then shall discuss other
aspects.

77. So far as objection raised in para
1 of Application No. 24 (O) of 2010 is
concerned, we find that initially the suit
was filed by Sri Deoki Nandan Agrawal
impleading himself as plaintiff no. 3 but
after his death it was substituted by others
and lastly by Sri Triloki Nath Pandey. In
the circumstances, we do not find any
reason or occasion to make any description
of Sri Deoki Nandan Agrawal in the decree
particularly considering the fact that
description
of
parties in
decree
is
consistent with what it is in the plaint as it
was on the date of judgment. Request,
therefore, as made vide para 1 of
application is hereby rejected.

78. Similarly with respect to
defendant no. 6 the information about his
death is not on record and none has sought
any substitution. The description of parties
in decree is consistent with description as
contained in the plaint on the date of
judgment, hence we do not find any reason
to order any alteration particularly when
facts sought to be taken note would require
verification. Therefore, the request made in
para 2 of the application is also rejected.

79. The request made in para 4 refers
to a typing mistake in the name of counsel,
Sri Zafaryab Jilani. The same is allowed.
In the judgment there is no mistake and it
appears that this mistake inadvertently has
occurred while drawing the decree by
office. Therefore, the correction shall be
made and the name of counsel shall be
corrected as "Zafaryab Jilani".

80. The objection regarding date of
decree taken in para 6 of Application No.
24 (O) of 2010 is rejected for the reasons
1 All] Gopal Singh Visharad V. Jahoor Ahmad and others
399
we have already given above while
discussing similar objections in respect to
Suit-1.

81. Now we shall deal with
collectively the objections contained in
paras 5, 7 and 8 of Application No. 24 (O)
of 2010 and the objections raised by Sri
H.S. Jain pressing Application No. 20 of
2010.

82. What ought to be the contents of
decree we have already discussed. The
judgement cited by learned counsel Sri
Jain does not lay down any law contrary to
what we have already said. In S. Satnam
Singh (supra), in para 15 of the judgment,
the Apex Court has said:

"15. For determining the question as
to whether an order passed by a court is a
decree or not, it must satisfy the following
tests:

"(i) There must be an adjudication;

(ii) Such adjudication must have been
given in a suit;

(iii) It must have determined the
rights of the parties with regard to all or
any of the matters in controversy in the
suit;

(iv) Such determination must be of a
conclusive nature; and

`(v)
There
must
be
a
formal
expression of such adjudication."

83. In the subsequent paragraphs of
judgment it has discussed the nature of
preliminary decree and final decree, the
exposition of law whereof admits no
exception.

84. We shall now consider what
constitute
formal
expression
of
adjudication
conclusively
determining
rights of parties with regard to all or any of
the matters in controversy in suit, so far as
Suit-5 is concerned.

85. Hon'ble S.U. Khan, J. has
discussed Issue No. 30, Suit-5 on pages
262 to 276 (pages 109 to 114, Vol. 1 of the
report). On pages 275-276 (pages 113/114,
Vol. 1 of the report) S.U. Khan, J. has said:

"Accordingly, in view of the VIIth
finding (Supra) all the three parties
(Muslims, Hindus and Nirmohi Akhara)
are entitled to a declaration of joint title
and possession to the extent of one third
each and a preliminary decree to that
effect is to be passed.

In the matter of actual partition it is
only desirable but not necessary to allot
that part of property to a party which was
in his exclusive use and occupation.
Accordingly, in view of peculiar facts and
circumstances it is held that in actual
partition, the portion where the idol is
presently kept in the makeshift temple will
be allotted to the Hindus and Nirmohi
Akhara will be allotted land including Ram
Chabutra and Sita Rasoi as shown in the
map, plan I.