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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 ..... E.2.4 Compromise decree and Res Judicata F. The Conclusion 1. A Single Judge of the High Court of Karnataka dismissed a second appeal filed under Section 100 of the Code of Civil Procedure 1908 ["CPC"], affirming the decision of the Trial Court and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Wakf Board passed an order dated 6 April 1983 taking over the management; (vi)H.S. Gururajarao who was in possession of the suit schedule property as a lessee, handed over possession of the cinema building to the Wakf Board on 29 June 1983. Defendants 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 befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'the second suit" 5 "the third suit" failed to prove that two of the suit schedule properties (Sy. No. 2 and 3, of which Sy No. 2 is the suit schedule property in the instant proceedings) belongs to the Jamia Mosque. The High Court on second appeal [R.A. 510/1954] 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sarguja Transport Service v. S.T.A.T Gwalior [AIR 1987 SC 88] was relied upon. 7. The High Court by its judgment and order dated 2 July 2008 allowed a Regular Second Appeal and remanded the matter to the Trial Court for disposal in accordance with law. The High Court 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 predecess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve heard Ms V Mohana, learned Senior Counsel appearing on behalf of the appellant and Mr Basava Prabhu Patil, learned Senior Counsel with Mr Balaji Srinivasan, learned Counsel for the contesting respondents. 12. On behalf of the appellant, the following submissions have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that the suit schedule property was the personal property of Abdul Khuddus. Thus, the court having conclusively decided on the title of the suit property, a subsequent suit raising the same issue is barred by the principles of res judicata; (ii) In the second suit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gating under the same title; and (iv) The Court in which the former suit was instituted is competent to try the subsequent suit or the suit in which such issue has been subsequently raised. 18. In Syed Mohd. Salie Labbai (dead) by L.Rs v. Mohd. Hanifa (dead) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In this case, there was no plea of constructive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata 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 judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al District Judge decreed the suit in the following terms: "14. ...the suit is decreed directing the settlement of the scheme towards the proper management of the Jamia Masjid in Gubbi and for the due and proper administration suit schedule items 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lained the ambit of a representative suit under Section 92 of the CPC. In that case, one of the reliefs sought was the declaration of the suit property as the religious and charitable trust property of Kaivalya or Karuna Sagar Panth while the defendant contended 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory relief under the provision of Section 92 of the Civil Procedure Code. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit." (emphasis supplied) 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here a representative suit is brought under Section 92 and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are 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-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue but it does not mean that if the matter is one in respect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case." However, in Sajjadanashin Syed (supra), an earlier judgment in Sulochana Amma (supra) and the Madras High Court's judgment in Vanagiri [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. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, since the title was contested, it was necessary that the court in the first suit determine if the suit property belonged to the mosque to adjudicate on the scheme of administration of the mosque. The contention that the trial court could not have adjudicated 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 CP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey deem fit in respect of item 2 and item 3 of the Schedule in that suit, if the defendant had not fulfilled the terms specified in the grant. Thus the finding on issue No 1 that schedule items 1, 4 and 15 belong to the mosque must specifically be read in 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) The plea that the suit property is a wakf on the basis of which a declaration was sought; (ii) Abdul Khuddus was entitled to possession only in his capacity as a khazi, the grant being a khazi service inam; (iii) The property has been notified as a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s evident that a compromise was reached only on the issue of possession and lease. When no compromise was arrived at between the parties on the title to the suit property, then no estoppel by conduct could also be inferred. Additionally, the counsel for the 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 sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The principle of res judicata can thus not be applied without taking into consideration this changed circumstance. 51. We are also of the opinion that the High Court has committed an error in applying the principle of res judicata based on the judgment 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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