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TMI Blog2021 (9) TMI 1484X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law or fact has to be adjudicated for resolving it; (ii) While deciding on a scheme for administration in a representative suit filed under Section 92 of the CPC the court may, if the title is contested, have to decide if the property in respect of which the scheme for administration and management is sought belongs to the Trust; (iii) A suit under section 92 CPC is of a representative character and all persons interested in the Trust would be bound by the judgment in the suit, and persons interested would be barred by the principle of res judicata from instituting a subsequent suit on the same or substantially the same issue; (iv) Since the first suit (OS 92 of 1950-51) was filed by members interested in the Jamia Masjid and the suit out of which the instant proceedings arise (OS 149 of 1998) was filed by the President of Jamia Masjid, the formulation in (iii) above is satisfied; (v) There was no adjudication in the first suit (OS 92 of 1950-51) on whether Abdul Khuddus had absolute title to the suit property. There was only a prima facie determination that Items 2 and 3 of the schedule of properties to the first suit belonged to Abdul Khuddus. The matters substantially in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the First Appellate Court that the suit instituted by the appellant-plaintiff is barred by the principle of res judicata. The appellant moved this court in a Special Leave Petition to challenge the decision of the Single judge. Leave has been granted on 8 December 2014. A. The Facts 2. Described as the Jamia Masjid Gubbi in the cause title, the appellant instituted the suit [2 O.S 149/1998] through its President for seeking the following reliefs: (i) A declaration that the State Wakf Board is the owner in possession of the suit schedule property, being survey No. 2 of Gubbi village admeasuring 2 acres and 4 guntas of non-agricultural land with a cinema building; (ii) A decree for possession against the defendants; (iii) An injunction to restrain the defendants from interfering with the possession and enjoyment of the plaintiff; and (iv)A decree for mesne profits. 3. The case of the plaintiff-appellant is as follows: (i) The suit property is a 'Khazi Service Inam'. Abdul Khuddus, the spouse of the fifth defendant and father of the sixth to ninth defendants was the mutawalli who was managing the property for and on behalf of the Wakf Board. Abdul Khuddus, was entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants 5 to 9 however executed sale deeds in respect of the property in favour of Defendants 1 to 4. Any alienation by Defendants 5 to 9 is void since the Board did not approve the transaction with a two-thirds majority; and (vii) The cause of action arose on 16 April 1983 when Defendants 1 to 4 together with other defendants interfered with the possession of the plaintiff on the strength of the sale in their favour executed by Defendants 5 to 9. 4. In May 2010, Defendants 2 to 4 filed their written statement raising the defence that: (i) The suit is barred by res judicata: OS 92/1950-51 ["the first suit] was filed by the members of the mosque known as Jamayat Masjid in which Abdul Khuddus (the predecessor of Defendants 5-9) was a party. In the said suit, the District Judge by a judgment dated 31 March 1954 declared the suit schedule property to be the personal property of Abdul Khuddus. Abdul Khuddus instituted an appeal before the High Court challenging a portion of the order of the District Judge. The High Court upheld the judgment of the District judge on 14 August 1959. Since the parties and the subject matter of the first suit and the present suit are the same, the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the properties in Sy No. 2, 3 and 4 do not belong to the mosque. Thus, the issue with regard to the ownership of the suit schedule property has reached finality in view of the decision of the High Court of Karnataka which was not assailed before this court; (ii) A judgment in a representative suit is binding on all the interested parties in view of Explanation IV to Section 11 CPC. Though the first suit was not filed by the Jamia Masjid in its individual capacity, it was filed by parties interested in the administration of the mosque and thus all parties interested in the mosque are bound by the judgment even if they were not impleaded as a party; (iii) The judgment of the trial court cannot be nullified by a notification issued by the government declaring the suit property as a wakf property; (iv) O.S 748/1968 filed by the plaintiff seeking a declaration that the Wakf is the owner of the suit property ended in a compromise by which the Wakf Board has admitted that Abdul Khuddus has the right to collect the rent from the lessee. Thus, the Wakf Board has relinquished its title over the suit property; and (v) O.S No. 100/1983 was filed seeking an injunction against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that: (i) The present suit is not barred by res judicata since OS 92/1950-51 was instituted under Section 92 of the CPC for settling a scheme. Para 10 of the judgment of the Trial Court noted that the defendant has a prima facie right to the suit property and that if the terms of the grant have not been satisfied by the defendant, the trustees can take steps. Therefore, the question of title was not conclusively decided. The issue that was substantially in issue in OS No 92/1950-51 is not in issue in the instant proceedings. The judgement of the High Court in appeal as well cannot be read to mean that the suit schedule property belongs absolutely to Abdul Khuddus; (ii) A suit under section 92 CPC is filed as a representative suit and is not a suit filed to vindicate the private right of an individual; (iii) The compromise decree in OS 748/1968 did not declare the ownership of Abdul Khuddus, the predecessor- in-interest of Defendants 1 to 4. It only states that the second defendant would continue as the lessee of Abdul Khuddus; (iv) The present suit was instituted on behalf of the State Wakf Board prior to the disposal of OS 100/1983 and was hence not barred; and (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been urged: (i) OS 92/1950-51 o The suit was instituted by Muslims in the locality interested in the proper management of the mosque since Abdul Khuddus was trying to set up his own title to the suit property; o The suit was not for a declaration of title to the suit property and the appellant was not a party to the suit. It was a suit seeking to set up a scheme for the administration of the suit property; o There was no final declaration that the suit property is a private property belonging to Abdul Khuddus; and o In a suit for settling a scheme under Section 92 of the CPC, the Court possessed limited jurisdiction and could not have issued declaratory relief. (ii) OS 748/1968 o The basis of the suit was that Abdul Khuddus by virtue of his office as a khazi only has the right to the usufruct and the suit was instituted as an unlawful construction was in place; o A compromise memo was filed in the suit stating that the second defendant would continue to remain as a tenant for some time and would thereafter hand over peaceful possession to Abdul Khuddus; o On 27 October 1969, a compromise petition was filed by the parties under Order 23 Rule 1 CPC; o The comprom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was instituted by the State Wakf Board, there was a prayer for declaration and possession. A compromise having been arrived at on a portion of the reliefs claimed in the second suit (relating to possession), this would necessarily amount to an abandonment of the other reliefs. Once a compromise is arrived at, Order 23 Rule 3A bars the maintainability of a subsequent suit; (iii) The third suit was for a permanent injunction against alienation of the suit property. This suit was dismissed as withdrawn; and (iv) Jamia Masjid is seeking a declaration of the title on behalf of the Wakf Board. The Wakf Board is not a party to the suit and its application for being impleaded has been rejected. E. The Analysis 14. The rival submissions now fall for analysis. 15. The primary issue is whether the suit - OS No. 149/1998 [The suit out of which the issue in present appeal arises is suit 96/1984 re-numbered as 162/1989 and 149/1998. For convenience we will refer to the suit as OS 149/1998.] - which was instituted by Jamia Masjid is barred by the principles of res judicata. In order to analyse whether the doctrine of res judicata is attracted, it is necessary that we decide on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by L.Rs [(1976) 4 SCC 780], Justice S Murtaza Ali speaking for a Bench of two judges observed that before a plea of res judicata can be given effect, the following conditions must be proved: "7… "(1) that the litigating parties must be the same; (2) that the subject-matter of the suit also must be identical; (3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction." The Court noted that "the best method" to decide the question of res judicata is first to determine the case of the parties as they are put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. In that case, it was held that the judgment in the previous suit was confined to two points: (i) The plaintiffs claimed certain rights for the performance of ceremonies in the properties and a share in the income accruing to the mosque from the worshippers; and (ii) A claim, insofar as the graveyard was concerned for receiving pit fees for burials. Consequently, it was held that the Trial court had not decided upon either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea. […] 26. In the instant case, the High Court has not stated what was the ground of attack that the appellant-plaintiff ought to have raised in the first suit but had failed to raise, which she raised in the second suit, to attract the principle of constructive res judicata. The second suit is not barred by constructive res judicata." (emphasis supplied) 20. The finding of the trial judge on the applicability of the principles of res judicata was set aside on the ground that the plea was not clearly established and the plaintiff was not given the opportunity to contest the plea. Thus, in Alka Gupta (supra), this court set aside the decision of the High Court on the above ground. 21. Order 14 Rule 2 CPC states that if questions of fact and law arise in the same suit, the court can dispose the case on the question of law alone if it relates to the following: "(a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may […]" (emphasis supplied) 22. It has been held by this court that a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction." 23. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy [(1970) 1 SCC 613], the application of the plaintiff in the Court of the Civil Judge for the determination of Standard Rent under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 was dismissed on the ground that the statute did not apply to a case of open land let for the construction of buildings. This decision was affirmed in appeal. However, in view of another decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land. (emphasis supplied) The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. We are unable to accept the submission of the appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,4 and 5 subject to the observation made above in respect of these Items 1,4 and 5 subject to the observation made above in respect of these items. The defendant shall pay costs of this suit in the plaintiffs. Pleader's fee Rs. 30/-" 28. In the course of the judgment, the District Judge discussed the evidence adduced by both the parties and came to the prima facie finding that of the six suit properties, the mosque did not have the title to two of the properties, namely, item 2 which is the suit property in the instant proceedings in OS 149/1998 and suit item 3. Abdul Khuddus in his testimony as D.W.6 deposed that the mosque has nothing to do with the lands (Item Nos. 2 and 3) given to him by the Government as Khazi Inam. Considering that no proof to the contrary was adduced by the plaintiffs in the suit, the District Judge recorded the following finding in paragraph 7: "The plaintiffs have not produced anything to show that the suit items 2 and 3 were granted or acquired for the mosque. It must therefore be held that these two items are khazi granted personally to the ancestors of the defendant they do not form part of properties of the mosque." (emphasis supplied) 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that the suit property was private property. Justice BK Mukherjea speaking for the Bench expounded on the scope of a suit under section 92 CPC, particularly in view of the relief seeking a declaration: "10 A suit under S.92. Civil P.C. is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions pre fulfilled that the suit has got to be brought in conformity with the provision of S.92, Civil P.C. As was observed by the Privy Council in Abdul Rahil v. Md. Barkat Ali. 55 Ind, App. 96, P.C. a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of S.92. Civil Procedure Code. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of Section 92 and the suit proceeded on the footing that the defendant, who was alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied) 33. Bhagwandasji (supra) lays down the following principles on the ambit of a representative suit under section 92 CPC: (i) The plaintiff can only seek reliefs that fall under any of the clauses in section 92 CPC. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in section 92 CPC and is outside the scope of the provision; (ii) Merely because the defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted; (iii)When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the plaintiff is entitled to the relief sought under Section 92 CPC; and (iv)If the plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit. On applying the principles evolved in Bhagwandasji (supra) to the facts of the case, the relief sought in the first suit under section 92 CPC was for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constructively barred by res judicata from reagitating the matters directly and substantially in issue in the said earlier suit." The same principle was reiterated in R. Venugopala Naidu (supra). In a two judge Bench decision in Shiromani Gurdwara Parbhandhak Committee v. Mahant Harnam Singh C. (Dead) M.N. Singh [AIR 2003 SC 3349], this Court held: "19. As observed by this Court in R. Venugopala Naidu v. Venkatarayulu Naidu Charities [1989 Supp (2) SCC 356 : AIR 1990 SC 444] a suit under Section 92 CPC is a suit of special nature for the protection of public rights in the public trust and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. The beneficiaries of the trust, which may consist of the public at large, may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 CPC and the suit-title in that event would show only their names as plaintiffs. Can we say that the persons whose names are in the suit-title are the only parties to the suit? The answer would be in the negative. The named plaintiffs being the representatives of the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh [AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780 : AIR 1976 SC 1569] ). We are of the view that the above summary in Mulla is a correct statement of the law. 19. We have here to advert to another principle of caution referred to by Mulla (p. 105): "It is not to be assumed that matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anagiri [Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari, AIR 1965 Mad 355] were referred to in order to lay emphasis on the unique facts of each case and its importance for determination of whether the issue was substantially decided. In both the referred cases, the issue was whether the finding of title in an injunction suit would operate as res judicata to a subsequent suit for declaration of title. While in Sulochana Amma, it was held that by the doctrine of res judicata, the finding would bar the subsequent suit, in Vanagiri, it was held that the title was not conclusively decided and that the subsequent suit would not be barred. It was observed that the twin tests of necessity and essentiality might lead to different conclusions on suits of a similar nature based on the facts and circumstances in each of them. 39. In a more recent decision in Nand Ram (Dead) Through Legal Representatives v. Jagdish Prasad (Dead) Through Legal Representatives [(2020) 9 SCC 393], a Bench of two judges reiterated the principle that if a matter has only collaterally or in an auxiliary manner been in issue or decided in an earlier proceeding, the finding would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated on the title of the suit property in a representative suit has already been addressed in the preceding section relying on the case of Bhagwandasji (supra). On applying the essentiality test to the judgment in the first suit, it has to be identified if the final decision rendered by the court in that case would be altered if the issue on title was determined otherwise. Whether the scheme for the administration of the mosque would also cover the suit property was necessary for adjudication in the former suit. In the next section we shall explore what precisely was the nature and import of the adjudication in the former suit. E.2.3.1 Similarity in issue and Res Judicata 41. Apart from the issue whether the title to the suit property was conclusively decided in the first suit, it is necessary that we identify if the matters in issue in the former and the subsequent suits are the same. The first suit under Section 92 of the CPC was for settling a scheme of administration of Jamia Masjid and the management of its properties and the rendering of accounts of its funds and income by the Defendant. In the subsequent suit, the prayer was for the declaration of the suit property as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context of what has been stated above. From the above analysis, it becomes clear that there was no adjudication in the earlier suit that Abdul Khudus had an absolute title to the suit property. 43. In view of the above discussion, the suit that gives rise to the instant proceedings is not barred by the first suit for the following reasons: (i) The court in the first suit was not ousted from determining if the suit property belonged to the mosque while settling a scheme for administration in a suit under Section 92 CPC; (ii) The suit under Section 92 is of a representative character and the decree would bind all persons interested in the Trust property; (iii)There was a 'prima facie' finding in the former suit that the suit property belonged to Abdul Khuddus; and (iv) In the context of a suit for settling a scheme of administration, the issue in the first suit was whether the suit property belonged to Jamia Masjid. There was no adjudication or finding that Khazi Abdul Khuddus had absolute title over the property, particularly in view of the deposition of Abdul Khuddus that the property was given as a Khazi Inam, coupled with the observation of the court that he had a 'p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wakf in the Mysore State Gazette on 10 July 1965 pursuant to a declaration of a wakf subscribed to by Abdul Khuddus; (iv) The compromise decree envisages that H.S. Gururajarao would pay the rent to the first defendant and hand over possession of the suit property to the first Defendant on the completion of the tenure of the lease. There is no clause in the compromise deed that Abdul Khuddus had absolute title to the property; and (v) In the second suit, the State Wakf Board sought declaratory relief and a decree for possession. A reading of the plaint would indicate that the essential nature of the grievance was in respect of a lease granted to the second defendant. The case of the Wakf Board was that the property had been dedicated as a wakf and was notified in the Gazette as a wakf; Abdul Khuddus was entitled by virtue of his office as khazi to the usufruct; and the lease in favour of the second defendant would not bind the wakf Board. The suit was compromised and the second defendant agreed to handover possession to the first defendant. No part of the claim was abandoned on the question of title of Abdul Khuddus. E.2.4 Compromise decree and Res Judicata 46. It is contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent referred to Order 23 Rule 3A to contend that a subsequent suit is barred when the previous suit is dismissed through a compromise decree. However, the provision would not be applicable to the case at hand since it only bars the challenge to a compromise decree on the ground that it is unlawful. Therefore, the disposal of the second suit in view of the compromise would not bar the filing of the suit out of which the instant proceedings arise. III. OS 100 of 1983: the third suit 47. The suit was instituted in the Court of Munsif at Gubbi by the Karnataka Wakf Board. The defendants were Khazi Abdul Masood son of Abdul Khuddus (the first defendant) while the second, third, fourth and fifth defendants were persons to whom the property was sought to be alienated by the first defendant. 48. In was averred in the plaint that the cause of action arose when the first defendant who had no right and interest in the suit schedule property was trying to interfere with the possession of the plaintiff with the assistance of the second, third and fourth defendants. The relief which was sought in the suit was a permanent injunction restraining the defendants from interfering with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the second suit. It was observed by the High Court that the second suit that was decreed in terms of the compromise was intended to put the litigation to an end and would thus bar any subsequent suit on the title to the suit property by virtue of the principle of res judicata. For this purpose, reliance was placed on a two judge bench decision of this court in Byram Pestonji Gariwala (supra) where it was held that a challenge to a consent decree six years later was vitiated by reason of delay, estoppel, and res judicata. However, the High Court lost sight of the fact that the compromise deed was entered into specifically with regard to the handing over of possession of the suit property by the lessee at the end of the lease and no compromise on the title to the suit property was arrived at. F. The Conclusion 52. In view of the discussion above, we summarise our findings below: (i) Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res judicata if there arises a new fact which has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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