THE JAMIA MASJID versus SRI K V RUDRAPPA (SINCE DEAD) BY LRS. & ORS.
[2021] 11 S.C.R. 672, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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THE JAMIA MASJID
v.
SRI K V RUDRAPPA (SINCE DEAD) BY LRS. & ORS.
(Civil Appeal No. 10946 of 2014)
SEPTEMBER 23, 2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND HIMA KOHLI, JJ.]
Code of Civil Procedure, 1908 – s.11 – Res judicata –
Appellant-Jama Masjid Gubbi instituted a suit through its president
seeking, inter alia, declaration that the State Wakf Board is the
owner in possession of the suit property – The defendants (Nos. 2-
4) raised the defence that the suit is barred by res judicata by virtue
of decisions in three prior suits – It was stated in their written
statement that suit property was a personal property of ‘AK’,
predecessor of defendants (Nos. 5-9) and the claim of title of ‘AK’
was adjudicated in the earlier suits – The trial Court framed the
issue of res judicata as a preliminary issue and held that the suit
was barred by res judicata by virtue of suits instituted earlier –
Appeal against the decree of the trial Court was dismissed by the
District Court – The High Court held that the suit was not barred by
res judicata and remanded the matter to the trial Court – In the SLP
against the said judgment, the Supreme Court remanded the matter
to the High Court – After remand, the High Court dismissed the
appeal and held that the suit was barred by res judicata – On appeal,
held: The first suit was instituted u/s.92 of CPC by five residents of
the town against ‘AK’, who was
managing the mosque – The relief
sought, inter alia, was settling a scheme for administration and
management of properties of the said mosque – There was no
adjudication on whether ‘AK’ had absolute title to the suit property
and the matter in issue in the first suit was distinct from issues in the
instant suit – In the second suit the relief sought was a declaration
that the property constitutes a wakf and a decree of possession of
the suit property – The said suit was decreed on the basis of a
compromised petition – The compromise was restricted to the issue
of the erstwhile lessee handling over the possession of the suit
property at the end of lease – The alleged claim of title of ‘AK’ was
not adjudicated – The third suit was instituted by the Karnataka
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Board of wakfs for injunction simpliciter – It was withdrawn after
the suit out of which the instant proceeding arises was filed for
seeking a substantive declaration and an injunction – No
adjudication on the rights of the parties was made in the third suit
– The High Court committed error in applying the principle of res
judicata – Therefore, the judgment and order of the High Court is
set aside.
Allowing the appeal, the Court
HELD: 1. In order to attract the principles of res judicata,
the following ingredients must be fulfilled:
(i)
The matter must have been directly and substantially
in issue in the former suit;
(ii)
The matter must be heard and finally decided by the
Court in the former suit;
(iii)
The former suit must be between the same parties or
between parties under whom they or any of them
claim, litigating 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. [Para
17][694-D-F]
Res Judicata as a Preliminary issue
2. It was contended that any determination of the application
of the principle of res judicata can only be made after evidence is
adduced pursuant to a full-fledged trial. 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. This Court 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.
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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 High
Court (the second following upon an order of remand by this court
on the ground that all parties were not heard). All the documentary
material necessary to decide the issue is before the court and
arguments have been addressed by the contesting sides fully on
that basis. [Para 23][699-G-H; 700-A-C]
The Plea of Res judicata and the three previous suits
I. First Suit /OS 92/1950-51
3. OS 92/1950-51 was instituted by five residents of Gubbi
town against the ‘AK’ who was managing the mosque. The suit
was instituted under the provisions of Section 92 CPC to settle a
scheme for the management of the mosque since ‘AK’ was alleged
to be misappropriating the funds accruing to the mosque and was
trying to set up his own title to the property of the mosque.
[Para 25][700-D-E]
4. Bhagwandasji 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. [Para 33]
[704-F-H; 705-A-B]
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4.1 On applying the principles evolved in Bhagwandasji to
the facts of the case, the relief sought in the first suit under section
92 CPC was for determination of a scheme of management of the
mosque. A determination of the title of the suit property with
respect to the mosque was ancillary to the main relief, under
Section 92 of the CPC. [Para 33][705-C-D]
5. The twin test that is used for the identification of whether
an issue has been conclusively decided in the previous suit is:
A. Whether the adjudication of the issue was ‘necessary’
for deciding on the principle issue (‘the necessity test’); and
B. Whether the judgment in the suit is based upon the
decision on that issue (‘the essentiality test’).
On applying the necessity test to the case at hand, it has to
be identified if the decision on the principle issue of framing a
scheme for the administration of the Mosque could not have been
arrived at without adjudication of the title of the suit. The plaint
contains two distinct allegations against the defendant, ‘AK’: (i)
that he was misappropriating the funds of the mosque; and (ii)
that he was setting up his own title to the suit property. The
defendant contested that the suit property belonged to him.
Therefore, 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. 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. [Para 40][710-E-H;
711-A-C]
6. The adjudication on the suit property was focussed
around whether it belonged to the mosque. Though the suit
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property was prima facie declared to not belong to the mosque, it
would not as a corollary mean that it was the personal property of
Khazi ‘AK’ over which he possessed an absolute or inalienable
right, particularly in view of his deposition that the property was
given as an inam to his forefathers for their services a Khazi.
There was no discussion on whether the suit property was a
personal inam or an inam attached to the office; there was no
adjudication in the earlier suit on the terms of the grant. Thus,
no adjudication on the absolute title over the suit property was
rendered in the former suit. On reading together, the findings
which have been arrived at in paragraph 7 and paragraph 10 of
the judgment of the trial court in the first suit, it is evident that
the District Judge did not enter a conclusive finding that item 2
of the schedule to that suit (which corresponds to the suit schedule
property in the present case) was the personal property of ‘AK’.
In fact, the use of the expression “prima facie right” in paragraph
10 extracted above clearly indicates that there was no conclusive
finding in the judgment of the District Judge. The District Judge
also noted it would be open to the trust to take steps as they
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 ‘AK’ had an absolute title to the suit property.
[Para 42][711-G-H; 712-A-D]
7. Thus, 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 ‘AK’; 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
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was no adjudication or finding that Khazi ‘AK’ had absolute title
over the property, particularly in view of the deposition of ‘AK’
that the property was given as a Khazi Inam, coupled with the
observation of the court that he had a ‘prima facie’ right over the
property. Therefore, the alleged claim of title of ‘AK’ not
adjudicated. Thus, the matters which were in issue before the
court in the first suit and the instant proceedings are distinct.
[Para 43][712-E-H; 713-A-B]
II. Second Suit/OS 748 of 1968
8. The suit was instituted by the Mysore State Board of
Wakf. ‘AK’ and HSG were impleaded as the first and second
defendants to the suit. The plaint contained the following
averments: (i) The suit property is a wakf property dedicated as
a ‘Khazi Service Inam’. People who perform the service of a Khazi
are entitled to remain in possession of the service inam and to
realise the usufruct after paying the wakf fund; (ii) ‘AK’ was
entitled to remain in possession by virtue of his office as Khazi,
apart from which he had no right, title or interest;(iii) The suit
property had been notified as a wakf pursuant to enquiry. A
Gazette notification had been issued on 10 July 1965 notifying
the suit property as a wakf property; (iv) The cause of action
arose on 10 July 1965 when the illegal and forcible occupation of
the suit property by the second defendant came to the knowledge
of the plaintiff; and (v) The reliefs sought were: A declaration
that the property
constitutes a wakf and a decree for possession
of the suit property. [Para 44][713-B-G]
9. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha
Rao and Sunderabai v. Devaji Shankar Deshpande, this Court held
that since a compromise decree is not a decision of the court, the
principle of res judicata cannot be made applicable. However, it
was held that the compromise decree may in effect create estoppel
by conduct between the parties, and the parties by estoppel will
be prevented from initiating a subsequent suit. Since it is the
principle of estoppel by conduct that will bar the institution of the
subsequent suit, it is pertinent that we refer to the compromise
decree to determine if any compromise was arrived at between
the parties on the title to the suit property. On a perusal of the
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
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compromise deed, it is 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. [Para 46][715-A-B, F-H;
716-A]
III. Third Suit/OS 100 of 1983
10. The third suit of 1983 instituted by the Karnataka Board
of Wakfs was a suit for injunction simpliciter. No question of title
was raised and none was adjudicated upon. As a matter of fact,
the suit was instituted on the apprehension that the property was
likely to be alienated by the legal representatives of ‘AK’. Before
the suit of 1983 was withdrawn, the suit out of which these
proceedings arise was instituted for seeking comprehensive
reliefs in terms of a declaration of title and a permanent injunction.
Therefore, the decision in the third suit does not bar the initiation
of the suit out of which the instant proceeding arises.
[Para
49][716-E-G]
11. The High Court dismissed the second appeal holding
that the courts conclusively decided on the title to the suit property
in the first suit (OS 92/1950-51) and that any subsequent suit on
the same issue of title would be barred by the principles of res
judicata. In view of the discussion above, this finding arrived at
by the High Court is erroneous. While holding that the judgment
in the first suit has conclusively decided that the title over the
suit property belongs to ‘AK’, the High Court has lost sight of
the observations in paragraph 7 and 10 of the judgment of the
trial court. It has been specifically held there that the suit property
was a Khazi service Inam and that ‘AK’ has a prima facie right to
the suit property. There was no adjudication to the effect that
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‘AK’ had an absolute title to the suit property. Additionally, the
decision of the courts in the first suit was delivered before the
suit property was notified as a wakf property in view of Notification
No. MWB 19(11) dated 6 July 1965. The principle of res judicata
can thus not be applied without taking into consideration this
changed circumstance. [Para 50][716-G-H; 717-A-C]
12. 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 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. [Para 51][717-C-E]
13. In view of the discussion, findings are summarised
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 to be proved. However, the
plea of res judicata may in an appropriate case be determined as
a preliminary issue when neither a disputed question of fact nor a
mixed question 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;
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(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 ‘AK’ 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 ‘AK’. The
matters substantially in issue in OS 92 of 1950-51, which was a
suit for administration and management of trust properties and
for accounts, are distinct from the issues in the suit out of which
the instant proceedings arise. Therefore, OS 149 of 1998 is not
barred by res judicata in view of the decision in the first suit;
(vi) While a compromise decree in a prior suit will not bar
a subsequent suit by virtue of res judicata, the subsequent suit
could be barred by estoppel by conduct. However, neither the
compromise petition dated 27 October 1969 nor the final decree
in the second suit dated 27 October 1969
indicate that a
compromise on the title to the suit property was arrived at. The
compromise was restricted to the issue of the erstwhile lessee
handing over possession of the suit property at the end of the
lease; and
(vii) The third suit (OS 100/1983) was a suit for an injunction
simpliciter. The third suit was withdrawn after the suit out of
which the instant proceeding arises was filed for seeking a
substantive declaration and an injunction. No adjudication on the
rights of the parties was made in the third suit. [Para 52]
[717-F-H; 718-A-H; 719-A]
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Mathura Prasad Bajoo Jaiswal v. Dossibai N.B
Jeejeebhoy (1970) 1 SCC 613 : [1970] 3 SCR 830;
Mahant Pragdasji Guru Bhagwandasji v. Patel
Ishwarlalbhai Narsibhai AIR 1952 SC 143 : [1952]
SCR 513; Raje Anandrao v. Shamrao (1961) 3 SCR
930; Ahmad Adam Sait v. M E Makhri (1964) 2 SCR
647; Shiromani Gurdwara Parbhandhak Committee v.
Mahant Harnam Singh C. (Dead) M.N. Singh AIR 2003
SC 3349; Sajjadanashin Syed MD B.E. Edr. (D) by Lrs.
v. Musa Dadabhai Ummer (2000) 3 SCC 350 : [2000]
1 SCR 1095; Sunderabai v. Devaji Shankar Deshpande
AIR 1954 SC 82 – relied on.
Provash Chandra Daluj v. Biswanath Banerhee AIR
1989 SC 1834; Byram Pestonji Gariwala v. Union Bank
of India AIR 1991 SC 2234; Sarguja Transport Service
v. S.T.A.T Gwalior AIR 1987 SC 88; R Venugopala
Naidu v. Venkatarayulu Naidu Charities AIR 1990 SC
444; Sulochana Amma v. Narayanan Nair (1994) 2 SCC
14:[1993] 2 Suppl. SCR 520; Syed Mohd. Salie Labbai
(dead) by L.Rs v. Mohd. Hanifa (dead) by L.Rs. (1976)
4 SCC 780 : [1976] 3 SCR 721; Alka Gupta v. Narender
Kumar Gupta (2010) 10 SCC 141 : [2010] 11 SCR 756;
Madhukar D Shende v. Tarabai Aba Shedage (2002) 2
SCC 85 : [2002] 1 SCR 132; Ram Harakh v. Hamid
Ahmed Khan & Ors., (1998) 7 SCC 484 : 1998 (9) JT
227; Sushil Kumar Mehta v. Gobind Ram Bohra (1990)
1 SCC 193 : [1989] 2 Suppl. SCR 149; Run Bahadur
Singh v. Lucho Koer, ILR (1885) 11 Cal 301; Asrar
Ahmed v. Durgah Committee AIR 1947 PC 1; Gram
Panchayat of Village Naulakha v. Ujagar Singh (2000)
7 SCC
543:[2000] 3 Suppl.SCR 457; Vanagiri Sri
Selliamman Ayyanar Uthirasomasundareswarar Temple
v. Rajanga Asari AIR 1965 Mad 355; Nand Ram (Dead)
Through Legal Representatives v. Jagdish Prasad
(Dead) Through Legal Representatives (2020) 9 SCC
393 : 2020 (4) JT 91; Pulavarthi Venkata Subba Rao
v. Valluri Jagannadha Rao AIR 1967 SC 591:[1964]
SCR 310 – referred to.
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Case Law Reference
[1993] 2 Suppl. SCR 520
referred to
Para 8(v)
[1976] 3 SCR 721
referred to
Para 18
[2010] 11 SCR 756
referred to
Para 19
[2002] 1 SCR 132
referred to
Para 22
[1989] 2 Suppl. SCR 149
referred to
Para 22
[1970] 3 SCR 830
relied on
Para 23
[1952] SCR 513
relied on
Para 32
[1964] 2 SCR 647
relied on
Para 35
[2000] 1 SCR 1095
relied on
Para 36
[2000] 3 Suppl. SCR 457
referred to
Para 38
[1964] SCR 310
referred to
Para 46
CIVIL APPELLATE JURISDICTION: Civil Appeal No.10946
of 2014.
From the Judgment and Order dated 23.01.2012 of the High Court
of Karnataka at Bangalore in R.S.A. No.2189 of 2007
Ms. V. Mohana, Sr. Adv., Gopal Singh, Abhishek Kaushik, R
Kothwal, M. Yogesh Kanna, Raja Rajeshwaran S., Advs. for the
Appellant.
Basava Prabhu Patil, Sr. Adv., Balaji Srinivasan, Shanmukhappa,
Ms. Shwetha Shanmukhappa, Prateek Yadav, Shahrukh Mohammed,
Ms. Aakriti Priya, Ms. Garima Jain, Ms. Pallavi Sengupta, Ashok Mathur,
Kumar Mihir, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
Index
A. The Facts
B.
Proceedings before the Courts
C.
Proceedings before the High Court
D. Submissions of the Parties
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E.
The Analysis
E.1
Res Judicata as a Preliminary issue
E.2
The Plea of Res Judicata and the three previous suits
E.2.1
Determination of title in a Representative suit
E.2.2
Representative Suit and Res judicata
E.2.3
Conclusive decision and Res Judicata
E.2.3.1 Similarity in issue and Res Judicata
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
19081, 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 suit2 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
1 “CPC”
2 O.S 149/1998
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property for and on behalf of the Wakf Board. Abdul
Khuddus, was entitled to the usufruct of the property subject
to the condition precedent that he would perform his service
as a Khazi or Mutawalli. During his lifetime he hadgiven up
his service as a Khazi upon being appointed by the Gubbi
Muslim Jamath as the Pesh Inam on a monthly salary of Rs
30 for performing the Namaz (daily prayers);
(ii)
Upon the enactment of the Wakf Act 1954, which was
adopted by the then Mysore State in 1955, the Assistant
Commissioner conducted a survey of Wakf Properties in
1963. Abdul Khuddus gave a declaration to the Wakf Board
for the registration of thesuit schedule property as a wakf.
A notice inviting objections for registration of the suit
schedule property as a wakf property was issued. No
objection to the registration of the suit schedule property
was raised and eventually the property wasnotified as a
wakf property at serial No 136 of the Mysore Gazette
notification No. MWB 19(11) dated 6 July 1965;
(iii)
 Under section 6 of the Wakf Act 1954, if any dispute arises
on a property declared as a wakf property, a claim can be
raised within one year of the publication of the notification.
There is a prohibition on alienation under rule 5 of the Wakf
Rules framed under the Wakf Act, 1965 unless approved
by a two-thirds majority of the Wakf Board;
(iv)
A person by the name of H.S. Gururajarao and his brothers
were granted a lease over
the schedule suit property on 8
December 1944 by the Muzrai officer to run a ‘cinema
talkies’. A suit, OS 748/1968, was instituted by the Wakf
Board against the Abdul Khuddus and H.S. Gururajarao
seeking possession of the suit property and a declaration
that the property constitutes a wakf. The suit was
compromised with Abdul Khuddus being permitted to collect
the rent from the lessee (H S Gururajarao) on behalf of the
Board;
(v)
After the death of Abdul Khuddus, defendants 6 to 9 took
possession of the suit property. Allegationsof
mismanagement of the suit property were made against
them. The Chairman, D.W.C Tumkur recommended that
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the suit property be directly managed by the Board under
section 43(A) of the Wakf Act 1954. Pursuant to the
recommendation, the 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 92/1950-513 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 instituted by the appellant is barred by res judicata;
(ii)
The suit schedule property is not a Khazi Service Inam but
was the personal property of Abdul Khuddus and his
successors have rightfully sold it in favour of Defendants
1-4;
(iii)
 The suit schedule property was leased to one H.S Gururaja
Raoby Abdul Khuddus and not by the then Muzrai officer
3 “the first suit”
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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as contended by the plaintiff. From 1995, a lease was
granted in favour of Sri K.V Rudrappa who was running a
theatre in the name of ‘Channabasaveswara Talkies’. After
the death of Rudrappa, defendants 1-4 are running the
theatre after obtaining a licence from the District Magistrate;
(iv)
OS 748/19684  was instituted by the Mysore Board of Wakf
against Abdul Khuddus seeking a declaration that the suit
property is a wakf and for possession of the suit property.
However, the suit was decreed in terms of the compromise
petition filed by the parties and therefore, the Wakf Board
gave up its claim in respect of the suit schedule property.
The subsequent suit is hit by the principle of res judicata;
and
(v)
OS 100/19835 was instituted by the Karnataka Board of
Wakf seeking an injunction restraining the defendants (the
heirs of Abdul Khuddus) from interfering in the peaceful
possession of the suit property. This suit was withdrawn by
the plaintiff.
B. Proceedings before the Courts
5. The Trial Court took up two issues – issues 5 and 6 – relating to
res judicata and limitation as preliminary issues. By its judgment dated
3 February 2006, the trial court held that the suit was not barred by
limitation. However, the court held that the suit was barred by res judicata
by virtue of the decisions in the suits instituted earlier:
(i)
O.S 92/1950-51 was filed by the members of the public of
Gubbi in their representative capacity
by virtue of Section
92 CPC. Abdul Khuddus contended that the suit schedule
property was his personal property. The first issue framed
in the suit was whether ‘the schedule properties belong
to the Jamia Mosque, Gubbi as alleged in the plaint’.
The plaintiff was held to have 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
4 ‘the second suit”
5 “the third suit”
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appeal6 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
Abdul Khuddus. However, the suit was dismissed on 22
November 1984 after a memo of withdrawal was filed by
the plaintiff’s counsel. Thus the Wakf Board has relinquished
rights over the suit property.
6. An appeal against the decree of the Trial Court was dismissed
by the 3rd
Additional District Judge at Tumkur on 2 July 2007 for the
following reasons:
(i)
The finding in O.S 92/1950 and by the High Court on appeal
was not challenged by Abdul Khuddus. It was also not
contested that the title of a property cannot be determined
in a representative suit filed under section 92 CPC;
(ii)
A representative suit filed under section 92 CPC binds not
only the parties named in the suit but also those who are
interested in the suit. Therefore, a decision in a previous
6 R.A. 510/1954
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representative suit will bind all interested parties even if
they were not impleaded as a party to the suit;
(iii)
The submission that the trial court had only prima facie
found Abdul Khuddus to possess title to the suit property
and that hence, it was not conclusively held that he had
absolute title, is erroneous. To determine if a scheme should
be framed for the maintenance of a trust, the court will
have to satisfy itself whether the property is owned by the
trust;
(iv)
The plaintiff has not specified when Abdul Khuddus made
the declaration for notifying the suit property as wakf
property. If the notification was made in 1963, there was
no reason for the Wakf Board to file the suit, as late as in
1983;
(v)
O.S. 748/1968 filed by the Wakf Board against Abdul
Khuddus for a declaration that the suit property belongs to
the Wakf Board ended in a compromise. The Wakf Board
has waived its right over the suit property and such a
compromise creates an estoppel (based on the decisions in
Provash Chandra Daluj v. Biswanath Banerhee7;
Byram Pestonji Gariwala v. Union Bank of India8); and
(vi)
O.S No. 100/1983 was filed by the Wakf Board for seeking
an injunction against the defendants. The suit was dismissed
by filing a Memo without seeking leave to file the instant
suit. The decision in Sarguja Transport Service v.
S.T.A.T Gwalior9 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.
7 AIR 1989 SC 1834
8 AIR 1991 SC 2234
9 AIR 1987 SC 88
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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)
The nature of the relief sought in the instant proceeding is
different from the relief sought in OS 92/1950-51. Jamia
Masjid was not the plaintiff in O.S No. 92/1950-51 and O.S
No. 748/1968.
C. Proceedings before the High Court
8. A Special Leave Petition10 was instituted before this Court by
Defendants 1 to 4. By a judgment dated 30 August 2010, this Court
remanded the proceedings back to the High Court on the ground that the
High Court had heard only one of the defendant – caveators and that all
the defendants were not represented before the High Court. After remand,
the High Court by its judgment dated 23 January 2012 dismissed the
appeal for
the following reasons:
(i)
The ownership of the suit schedule property has been
conclusively decided in OS 92/1050-51 in favour of Abdul
Khuddus;
(ii)
The judgment in a representative suit under Section 92 CPC
binds the parties to the suit and those who are interested in
the Trust (R Venugopala Naidu v. Venkatarayulu Naidu
Charities11);
10 SLP (C) No. 26047 of 2008
11 AIR 1990 SC 444
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(iii)
When a suit is filed for determination of a scheme for
administration of a Trust, the court must primarily be satisfied
that the property belongs to the Trust. The court has the
power under Section 92(e) and (cc) of the CPC to order
delivery of possession of the property to any person who is
entitled to possession;
(iv)
If a declaration was made by Khazi Abdul Khuddus
declaring the suit property as a Wakf property in 1965, there
is no explanation as to why the plaintiff was silent till the
filing of OS 100/1983; and
(v)
An issue that was substantially decided by a competent
court of limited jurisdiction will operate as res judicata,
though such court in view of its limited jurisdiction would
not be competent to try the subsequent suit (Sulochana
Amma v. Narayanan Nair12).
9. The judgment obtained through a consent decree in OS 748/
1968 was intended to put the litigation to an end. It would thus operate
as res judicata in the subsequent suits.
10. Leave was granted by this Court on 8 December 2014.
D. Submissions of the Parties
11. We have 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;
12 (1994) 2 SCC 14
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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 handover
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 compromise decree neither concedes title of the
suit property to defendants nor does it create any new
right in their favour; and
o
The suit proceeded on the basis that Abdul Khuddus
was only entitled to the usufruct and the decree based
on the compromise deed protected possession without
any adjudication of title.
(iii)
OS 100/1983
o
The suit was instituted by the Karnataka Wakf Board
for a permanent injunction, apprehending a sale at the
instance of the heirs of the Abdul Khuddus to defendants
1-4;
o
The appellant was not a party to the suit;
o
The suit was dismissed without costs after the plaintiff
filed a memo for dismissal; and
o
Before the dismissal of the suit, the present suit which
is a
comprehensive suit seeking declaration and
possession had been instituted.
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
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In view of the above position, it was urged that the ingredients for
the application of the doctrine of res judicata have not been fulfilled. In
summation, it was urged that:
(i)
The issue of title to the suit schedule property has not been
decided in any of the three prior suits;
(ii)
In view of notification No. MWB 19(11) dated 6 July 1965
the suit property was notified as wakf property;
(iii)
A collateral finding does not demonstrate an adjudication
of title;
(iv)
In the absence of a prior adjudication, the doctrine of res
judicata would not be attracted;
(v)
The notification of the suit schedule property as a wakfwas
pursuant to a declaration dated 28 April 1963 executed by
Abdul Khuddus for the general benefit of the community;
(vi)
Once the property is constituted as a wakf, it would remain
so in that character and no objection to the notification was
filed either by Abdul Khuddus or by any person claiming
through him; and
(vii)
Without prejudice to the above submissions, the issue of
res judicata raises mixed questions of law and fact and, in
any event, ought to have been decided as a comprehensive
issue pursuant to a full-fledged trial.
13. Opposing the above submissions, Mr Basava Prabhu Patil,
learned Senior Counsel submitted that:
(i)
In the first suit - 92/1950-51 - there was a specific finding
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
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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. 149/199813 -
which was instituted by Jamia Masjid is barred by the principles of res
judicata. In order to analyse whether the doctrine of res judicatais
attracted, it is necessary that we decide on the plea with respect to the
three prior suits:
(i)
OS 92/1950-51;
(ii)
OS 748/1968 and;
(iii)
OS 100/1983.
16. Before analysing the three suits specifically, it is necessary
that we visit the jurisprudence on res judicata. Section 11 CPC states
as follows:
“11. Res Judicata: No Court shall try any suit or issue in which
the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
[…]
Explanation
IV.— Any matter which might and ought to have
been made ground of defence or attack in such former suit shall
be deemed to have been a matter directly and substantially in
issue in such suit.
13 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.
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Explanation V.— Any relief claimed in the plaint, which is not
expressly granted by the decree, shall for the purposes of this
section, be deemed to have been refused. Explanation VI.—
Where persons litigate bona fide in respect of a public right or of
a private right claimed in common for themselves and others, all
persons interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so litigating .
[…]
Explanation VIII.— An issue heard and finally decided by a Court
of limited jurisdiction, competent to decide such issue, shall operate
as res judicata in a subsequent suit, notwithstanding that such
Court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been
subsequently raised.]”
17. In order to attract the principles of res judicata, the following
ingredients must be fulfilled:
(i)
The matter must have been directly and substantially in issue
in the former suit;
(ii)
The matter must be heard and finally decided by the Court
in the former suit;
(iii)
The former suit must be between the same parties or
between parties under whom they or any of them claim,
litigating 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.Rsv. Mohd.
Hanifa (dead) by
L.Rs14, 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;
14 (1976) 4 SCC 780
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(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 the public
character of the mosque or the mode and manner or the
effect of the dedication of the site for the purpose of the
mosque or the graveyard.
E.1 Res Judicata as a Preliminary issue
19. Before we undertake an analysis on the applicability of the
principles of res judicata vis-à-vis the three suits that were initiated
with regard to the suit property it is necessary to discuss the submission
of counsel for the appellant that res judicata, being a mixed question of
law and facts ought not to have been decided as a preliminary issue by
the trial court. It was contended that any determination of the
application
of the principle of res judicata can only be made after evidence is
adduced pursuant to a full-fledged trial. For this purpose, reliance was
placed on the decision of a two judge bench of this court in Alka Gupta
v. Narender Kumar Gupta15 (“Alka Gupta”) authored by Justice RV
Raveendran. In Alka Gupta, the trial court had dismissed the subsequent
suit on various preliminary grounds, one of which was that the filing of
the subsequent suit stood barred by res judicata. However, on
appeal,thetwo judge bench of this court held that the second suit was not
barred by res judicata:
15 (2010) 10 SCC 141
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“19. The learned Trial Bench passed the order on 13-3-2009 on
the preliminary issue (Issue 1) relating to res judicata. But there
is absolutely no discussion in the order of the learned Single
Judge in regard to the bar of res judicata except the following
observation at the end of the order: “Of course it cannot be said
that the present suit is barred by res judicata inasmuch as the said
claims were not decided in that case. But the principle of
constructive res judicata is applicable.” This was not interfered
by the Appellate Bench. Both proceeded on the basis that the suit
was not barred by res judicata, but barred by principle of
constructive res judicata without assigning any reasons.
20. Plea of res judicata is a restraint on the right of a plaintiff to
have an adjudication of his claim. The plea must be clearly
established, more particularly where the bar sought is on
the basis 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
law alone if it relates to the following:
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“(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 determination of whetherres
judicata is attracted raises a mixed question of law and facts. In
Madhukar D. Shende16 and Ram Harakh17, it was held that the plea
of res judicata was a mixed question of law and facts. In both the
cases, the plea of res judicata was taken for the first time before this
Court. Justice K. Ramaswamy writing for a three judge bench of this
court in Sushil Kumar Mehta v. Gobind Ram Bohra18 held that the
principle of res judicata cannot be fit into the pigeon hole of ‘mixed
question of law and facts’ in every case. Rather, the plea of res judicata
would be a question of law or fact or a mixed question of both depending
on the issue that is claimed to have been previously decided. The court
while determining the applicability of the plea of res judicata would
determine if there has been any material alteration in the facts and law
applicable:
“26. The doctrine of res judicata under Section 11 CPC is founded
on public policy. An issue of fact or law or mixed question of fact
and law, which are in issue in an earlier suit or might and ought to
be raised between the same parties or persons claiming under
them and was adjudicated or allowed uncontested becomes final
and binds the parties or persons claiming under them. Thus, the
decision
of a competent court over the matter in issue may operate
as res judicata in subsequent suit or proceedings or in other
proceedings between the same parties and those claiming under
them. But the question relating to the interpretation of a statute
touching the jurisdiction of a court unrelated to questions of fact
or law or mixed questions does not operate as res judicata even
between the parties or persons claiming under them. The reason
is obvious; a pure question of law unrelated to facts which are the
basis or foundation of a right, cannot be deemed to be a matter in
issue. The principle of res judicata is a facet of procedure but not
16 Madhukar D Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85
17 Ram Harakh v. Hamid Ahmed Khan& Ors., (1998) 7 SCC 484
18 (1990) 1 SCC 193
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of substantive law. The decision on an issue of law founded on
fact in issue would operate 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
Jeejeebhoy19, 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 1947was
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 the Bombay High Court
which held that the statute would be applicable to leased land, the plaintiff
filed a fresh proceeding in the Court of Small Causes. The Trial Court
and the High Court held that the subsequent suit was barred by res
judicata. However, Justice J C Shah writing for a 3-judge bench held
that the subsequent suit was not barred by res judicata:
“5. But the doctrine of res judicata belongs to the domain of
procedure: it cannot be exalted to the status of a legislative direction
between the parties so as to determine the question relating to the
interpretation of enactment affecting the jurisdiction of a Court
finally between them, even though no question of fact or mixed
question of law and fact and relating to the right in dispute between
the parties has been determined thereby. A decision of a competent
Court on a matter in issue may be res judicata in another proceeding
19 (1970) 1 SCC 613
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between the same parties: the “matter in issue” may be an
issue of fact, an issue of law, or one of mixed law and fact.
An issue of fact or an issue of mixed law and fact decided
by a competent Court is finally determined between the
parties and cannot be re-opened between them in another
proceeding. The previous decision on a matter in issue alone is
res judicata: the reasons for the decision are not res judicata.
[…]
11. The matter in issue, if it is one purely of fact, decided in
the earlier proceeding by a competent Court must in a
subsequent litigation between the same parties be regarded
as finally decided and cannot be reopened. A mixed question
of law and fact determined in the earlier proceeding between
the same parties may not, for the same reason, be questioned
in a subsequent proceeding between the same parties. But,
where the decision is on a question of law i.e. the interpretation of
a statute, it will be res judicata in a subsequent proceeding between
the same parties where the cause of action is the same, for the
expression “the matter in issue” in Section 11 of the Code of Civil
Procedure means the right litigated between the parties i.e. the
facts on which the right is claimed or denied and the law 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
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
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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 High Court (the second following upon
an order of remand by this court on the ground that all parties were not
heard). All the documentary material necessary to decide the issue is
before the court and arguments have been addressed by the contesting
sides fully on that basis.
E.2 The Plea of Res Judicata and the three previous suits
24. We will now refer to the proceedings in the three suits to
decide if the bar of res judicata would be applicable in view of judgments
in any of the previous suits.
I. OS 92/1950-51/ The first suit
25. OS 92/1950-51was instituted by five residents of Gubbi town
against the Abdul Khuddus who was managing the mosque. The suit
was instituted under the provisions of Section 92 CPC to settle a scheme
for the management of the mosque since Abdul Khuddus was alleged to
be misappropriating the funds accruing to the mosque and was trying to
set up his own title to the property of the mosque. The reliefs which
were sought in the suit were for
a.
Settling a scheme for the administration of Jamia Masjid
situated
in Gubbi and the management of its properties; and
b.
Directing the defendant to render accounts in respect of
the income and other funds.
The schedule to the plaint contained six properties of which serial
No. 2 (which corresponds to the suit schedule property) is described
thus:
“2. Dry land bearing Survey No.2, measuring 2Acre 4 guntas,
assessed at Rs.4 /- and situated in Gubbi Village.”
26. The issues which were framed by the Trial Court were as
follows:
“(1) In the schedule properties being to the Jamia Masjid
at Gubbi as alleged in the plaint?
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(2) Is the said Mosque a public religious institution as alleged by
the plaintiff?
(3) Is it a private institution belonging to the defendant’s family?
(4) Are the schedule shops built out of defendants private funds?
(5) Are plaintiffs persons interested in the Masjid and is! the suit
maintainable?.
(6) Is the defendant entitled to continue in management of the
mosque in question?
(7) Is the court-fee is sufficient?
(8) To what relief is the plaintiff entitled?”
(emphasis supplied)
27. The 1st Additional 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 suit
items 2 and 3 were granted or acquired for the mosque. It must
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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. Significantly, after the above observation, the District Judge
entered the following finding in paragraph 10:
“10. In his written statement the defendant claimed all the suit
schedule immoveable as his own. But as observed before the
evidence discloses his prima facie right to only suit schedule
items 2 and 3. Those two items therefore be considered as
belonging to the mosque. It shall however be open for the trustees
to be appointed to take such steps as may deems fit if they consider
that in respect of those two items (Items 2 and 3) the defendant
has not satisfied the terms of the grant.”
(emphasis supplied)
30. An appeal was filed by Abdul Khuddus before the High Court20
assailing the finding of the District Judge that items 1, 4 and 5 belonged
to the mosque. In a judgment dated 14 August 1989, the appeal was
partly allowed with respect to items 1 and 5 with the following finding:
“The result is that this appeal is allowed in part. In substitution of
the decree made by Court below, we direct that the learned District
Judge will now settle a scheme for the due administration of the
mosque and its properties which are items 1 and 5.”
31. OS 92/1950-51 was a representative suit filed under section
92 CPC, specifically under clause (g), for
settling the scheme of
administration of the mosque. It has been consistently contended by
Abdul Khuddus that item 2 of the suit schedule property was granted to
him as a Khazi inam, and is thus not a mosque property. In order to
adjudicate on the applicability of the plea of res judicata vis-à-vis the
first suit, it is necessary that we decide on the following three issues:
A.
The scope of the first suit which was instituted under Section
92 of the CPC;
B.
Whether the parties in the first suit and the instant
proceedings are the same; and
C.
Whether the issue of title over the suit property was
conclusively decided in the first suit.
20 Regular Appeal No. 510 of 1954
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E.2.1
Determination of title in a Representative suit
32. In Mahant Pragdasji Guru Bhagwandasji v. Patel
Ishwarlalbhai Narsibhai21, a three judge Bench of this Court explained
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 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 alleged to be the trustee in respect of a public
trust, was guilty of breach of trust. The defendant denied the
existence of the trust and denied further that he was guilty
of misconduct or breach of trust. The denial could not
certainly oust the jurisdiction of the court, but when the
courts found concurrently, on the evidence adduced by the
parties, that the allegations of breach of trust were not made
out, and as it was not the case of the plaintiffs, that any
direction of the court was necessary for proper
administration of the trust, the very foundation of a suit
under Section 92 of the Civil Procedure Code became
wanting and the plaintiffs had absolutely no cause of action
21 AIR 1952 SC 143
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for the suit they instituted. In these circumstances, the
finding of the High Court about the existence of a public
trust was wholly inconsequential and as it was unconnected
with the grounds upon which the case was actually disposed
of, it could not be made a part of the decree or the final
order in the shape of a declaratory relief in favour of the
plaintiffs. It has been argued by the learned Counsel for the
respondents that even if the plaintiffs failed to prove the other
allegations made in the plaint, they did succeed in proving that the
properties were public and charitable trust properties — a fact
which the defendant denied. In these circumstances, there was
nothing wrong for the court to give the plaintiffs a lesser relief
than what they actually claimed. The reply to this is, that in a
suit framed under Section 92 of the Civil Procedure Code
the only reliefs which the plaintiff can claim and the court
can grant are those enumerated specifically in the different
clauses of the section. A relief praying for a declaration that
the properties in suit are trust properties does not come
under any of these clauses. When the defendant denies the
existence of a trust, a declaration that the trust does exist
might be made as ancillary to the main relief claimed under
the section if the plaintiff is held entitled to it; but when the
case of the plaintiff fails for want of a cause of action, there is no
warrant for
giving him a declaratory 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;
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(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 determination of a scheme of management of the mosque.
A determination of the title of the suit property with respect to the mosque
was ancillary to the main relief, under Section 92 of the CPC.
E.2.2 Representative Suit and Res judicata
34. We next advert to identifying if the parties in the instant
proceedings (OS 149/1998) are the same as the first suit (OS 92/1950-
51). The first suit was a representative suit filed by interested parties of
the Mosque-Jamia Masjid while the instant suit was filed by the President
of the Jamia Masjid in his representative capacity. In Raje Anandrao v.
Shamrao22, ChiefJustice PB Gajendragadkar (as he then was) speaking
for a two judge Bench of this Court said:
“13…a suit under Section 92 is a representative suit and binds not
only the parties thereto but all those who are
interested in the
trust.”
35. In Ahmad Adam Sait v. M E Makhri23, Chief Justice PB
Gajendragadkar (as he then was) speaking for a three judge Bench
held:
“16…when a suit is brought under Section 92, it is brought by two
or more persons interested in the trust who have taken upon
themselves the responsibility of representing all the beneficiaries
of the Trust. In such a suit, though all the beneficiaries may not be
expressly impleaded, the action is instituted on their behalf and
22 (1961) 3 SCR 930
23 (1964) 2 SCR 647
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relief is claimed in a representative character. This position
immediately attracts the provisions of Explanation VI to Section
11 of the Code. Explanation VI provides that where persons litigate
bona fide in respect of a public right or of a private right claimed
in common for themselves and others, all persons interested in
such right shall, for the purposes of this section, be deemed to
claim under the persons so litigating. It is clear that Section 11
read with its Explanation VI leads to the result that a decree passed
in suit instituted by persons to which Explanation VI applies will
bar further claims by persons interested in the same right in respect
of which the prior suit had been instituted. Explanation VI thus
illustrates one aspect of constructive res judicata. Where 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 reiteratedin R. Venugopala Naidu(supra).
In a two judge Bench decision in Shiromani Gurdwara Parbhandhak
Committee v. Mahant Harnam Singh C. (Dead) M.N. Singh24, 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 at large which is interested in the trust, all such interested
persons would be considered in the eyes of the law to be parties
24 AIR 2003 SC 3349
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to the suit. A suit under Section 92 CPC is thus a representative
suit and as such binds not only the parties named in the suit-title
but all those who share common interest and are interested in the
trust. It is for that reason that Explanation VI to Section 11 CPC
constructively bars by res judicata the entire body of interested
persons from reagitating the matters directly and substantially in
issue in an earlier suit under Section 92 CPC.”
On a perusal of the above authorities it is evident that a
representative suit is binding on all the interested parties. Therefore, the
judgment of the court in the first suit would be binding on Jamia Masjid
and would preclude it from instituting another suit on the same issue if it
has been conclusively decided. It is now to be analysed if the substantive
issue in the instant suit was conclusively decided in the first suit.
E.2.3 Conclusive decision and Res Judicata
36. The locus classicus on the point of determining if an issue
was ‘directly and substantially’ decided in the previous suit is the decision
of Justice M Jagannadha Rao (writing for a two judge bench) in
Sajjadanashin Syed MD B.E. Edr. (D) by Lrs. v. Musa Dadabhai
Ummer.25. During the course of the judgment, the Court analysed the
expression “directly and substantially in issue” in Section 11 and laid
down the twin test of essentiality and necessity:
“12. It will be noticed that the words used in Section 11 CPC are
“directly and substantially in
issue”. If the matter was in issue
directly and substantially in a prior litigation and decided against a
party then the decision would be res judicata in a subsequent
proceeding. Judicial decisions have however held that if a matter
was only “collaterally or incidentally” in issue and decided in an
earlier proceeding, the finding therein would not ordinarily be res
judicata in a latter proceeding where the matter is directly and
substantially in issue.”
[…]
18. In India, Mulla has referred to similar tests (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
25 (2000) 3 SCC 350
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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 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 in respect of which issues
have been framed are all of them directly and substantially in
issue. Nor is there any special significance to be attached to the
fact that a particular issue is the first in the
list of issues. Which of
the matters are directly in issue and which collaterally or
incidentally, must be determined on the facts of each case. A
material test to be applied is whether the court considers the
adjudication of the issue material and essential for its decision.”
(emphasis supplied)
37. Adverting to the decision in Mahant Pragdasji Guru
Bhagwandasji (supra)and two earlier decisions26, the Court held that
these were instances where inspite of adverse findings in an earlier suit,
the finding on that specific issue was not treated as res judicata as it
was purely incidental, auxiliary or collateral to the main issue in each of
these cases and not necessary in the earlier case.
26 Run Bahadur Singh v. Lucho Koer,ILR (1885) 11 Cal 301 ; Asrar Ahmed v. Durgah
Committee, AIR 1947 PC 1.
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38. In another decision in Gram Panchayat of Village Naulakha
v. Ujagar Singh27, it has been held that the decision in an earlier suit for
an injunction, where no question of title was adjudicated upon will not be
binding on the question of title:
“10. We may also add one other important reason which frequently
arises under Section 11 CPC. The earlier suit by the respondent
against the Panchayat was only a suit for injunction and not one
on title. No question of title was gone into or decided. The said
decision cannot, therefore, be binding on the question of title. See
in this connection Sajjadanashin Sayed v. Musa Dadabhai
Ummer [(2000) 3 SCC 350] where this Court, on a detailed
consideration of law in India and elsewhere held, that even if, in
an earlier suit for injunction, there is an incidental finding on title,
the same will not be binding in a later suit or proceeding where
title is directly in question, unless it is established that it was
“necessary” in the earlier suit to decide the question of title for
granting or refusing injunction and that the relief for injunction
was founded or 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
Vanagiri28 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
27 (2000) 7 SCC 543
28 Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari,
AIR 1965 Mad 355
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Representatives29,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 ordinarily be res
judicata in a later proceeding where the matter is directly and
substantially in issue. Justice Hemant Gupta (writing for a two judge
bench) noted that the material test to be applied is whether the
adjudication of the issue is material and essential for the decision. In
Nand Ram, the land leased by the plaintiffs to the defendants was
acquired under the Land Acquisition Act, 1894. A dispute arose on the
apportionment of the compensation. The suit was decided against the
defendant on the ground that defendant did not pay the lease rent for
more than 12 months and thus according to the lease agreement, the
lease had come to an end. It was thus held that the defendant would not
be entitled to the compensation. Subsequently, the plaintiff filed an eviction
suit asserting that the defendant was in possession of the land that was
not included in the lease deed. The High Court in the second appeal held
that the subsequent suit was barred by res judicata since the former
suit had conclusively decided on the title of the suit property. On appeal,
this court set aside the judgment of the High Court on the ground that
the issue of title was not conclusively decided in the former suit.
40. In view of the
authorities cited above, the twin test that is
used for the identification of whether an issue has been conclusively
decided in the previous suit is:
 A.
Whether the adjudication of the issue was ‘necessary’ for
deciding on the principle issue (‘the necessity test’); and
B.
Whether the judgment in the suit is based upon the decision
on that issue (‘the essentiality test’).
On applying the necessity test to the case at hand, we will have to
identify if the decision on the principle issue of framing a scheme for the
administration of the Mosque could not have been arrived at without
adjudication of the title of the suit. The plaint contains two distinct
allegations against the defendant, Abdul Khuddus: (i) that he was
misappropriating the funds of the mosque; and (ii) that he was setting up
his own title to the suit property. The defendant contested that the suit
property belonged to him. Therefore, since the title was contested, it
was necessary that the court in the first suit determine if the suit property
29 (2020) 9 SCC 393
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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 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 wakf property. In the first suit, it was held that the suit
property was ‘prima facie’ the property of Abdul Khuddus; that it was
given to
his forefathers as a service inam, for his functions as a khazi.
The cause of action in the subsequent suit arose because the successors
of Abdul Khuddus alienated the suit property. The matters were
adjudicated upon in the former suit are not the same as those in the
subsequent suit for two reasons: Firstly, there was a changed
circumstance resulting from the notification declaring the suit property
as a wakf property which was issued after the first suit was decreed;
secondly, in the first suit, which was essentially a suit for administration,
the suit property was observed to prima facie belong to Abdul Khuddus
as akhazi inam.
42. The adjudication on the suit property was focussed around
whether it belonged to the mosque. Though the suit property was prima
facie declared to not belong to the mosque, it would not as a corollary
mean that it was the personal property of Khazi Abdul Khuddus over
which he possessed an absolute or inalienable right, particularly in view
of his deposition that the property was given as an inam to his forefathers
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for their services a Khazi. There was no discussion on whether the suit
property was a personal inam or an inam attached to the office; there
was no adjudication in the earlier suit on the terms of the grant. Thus, no
adjudication on the absolute title over the suit property was rendered in
the former suit. On reading together, the findings which have been arrived
at in paragraph 7 and paragraph 10 of the judgment of the trial court in
the first suit, it is evident that the District Judge did not enter a conclusive
finding that item 2 of the schedule to that suit (which corresponds to the
suit schedule property in the present case) was the personal property of
Abdul Khuddus. In fact, the use of the expression “prima facie right” in
paragraph 10 extracted above clearly indicates that there was no
conclusive finding in the judgment of the District Judge. The District
Judge also noted it would be open to the trust to take steps as they 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. 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
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as a Khazi Inam, coupled with the observation of the court
that he had a ‘prima facie’ right over the property. Therefore,
the alleged claim of title of Abdul Khuddus was not
adjudicated. Thus, the matters which were in issue before
the court in the first suit and the instant proceedings are
distinct.
II OS 748 of 1968: the second suit
44. The suit was instituted by the Mysore State Board of Wakf.
Abdul Khuddus and H.S. Gururajarao were impleaded as the first and
second defendants to the suit. The plaint contained the following
averments:
(i)
The suit property is a wakf property dedicated as a ‘Khazi
Service Inam’. People who perform the service of a Khazi
are entitled to remain in possession of the service inam and
to realise the usufruct after paying the wakf fund;
(ii)
Abdul Khuddus was entitled to remain in possession by virtue
of his office as Khazi, apart from which he had no right,
title or interest;
(iii)
The suit property had been notified as a wakf pursuant to
enquiry. A Gazette notification had been issued on 10 July
1965 notifying the suit property as a wakf property;
(iv)
The cause of action arose on 10 July 1965 when the illegal
and forcible occupation of the suit property by the second
defendant came to the knowledge of the plaintiff; and
(v)
The reliefs sought were:
a.
A declaration that the property constitutes a wakf;
b.
A decree for possession of the suit property.
45. The second defendant filed a written statement stating that he
was
prepared to pay rent in the event that the property was held to be
wakf property. A compromise petition was filed by the parties under
Order 23 Rule 1 CPC on 27 October 1969 which envisaged that the
second defendant shall continue to be the lessee of the suit property till
the expiry of the period of lease (end of May 1971)for which the lease
amount shall to paid to first defendant. In the alternative, if he desired to
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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extend his lease thereafter, he could enter into a fresh agreement of
lease with the first defendant, failing which he would vacate after
demolition of the building. The suit was decreed on 27 October 1969 in
terms of the compromise petition. The basis and foundation in the second
suit was that:
(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 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 contended by the counsel for the appellant that since a
compromise deed was arrived at between the Mysore State Board of
Wakf, Abdul Khuddus and the lessee with regard to the possession of
the suit property, the other reliefs have been abandoned. It was thus
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contended that in view of the compromise deed, the claim of title to the
suit property has been abandoned and cannot be raised in the subsequent
suit. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao30
and Sunderabai v. Devaji Shankar Deshpande31, this Court held that
since a compromise decree is not a decision of the court, the principle of
res judicata cannot be made applicable. However, it was held that the
compromise decree may in effect create estoppel by conduct between
the parties, and the parties by estoppel will be prevented from initiating a
subsequent suit. Chief Justice Bhagwati (as he was then) writing for a
three judge bench in Sunderabai observed:
“12. The bar of res judicata however, may not in terms be
applicable in the present case, as the decree passed in Suit No.
291 of 1937 was a decree in terms of the compromise. The terms
of Section 11 of the CPC would not be strictly applicable to the
same but the underlying principle of estoppel would still apply.
Vide: the commentary of Sir Dinshaw Mulla on Section 11 of the
CPC at p. 84 of the 11th Edn. under the caption Consent decree
and estoppel:
“The present section does not apply in terms to consent decrees;
for it cannot be said in the cases of such decrees that the matters
in issue between the parties ‘have been heard and finally decided’
within the meaning of this section. A consent decree, however,
has to all intents and purposes the same effect as res judicata as
a decree
passed in invitum. It raises an estoppel as much as a
decree passed in invitum.”
Since it is the principle of estoppel by conduct that will bar the
institution of the subsequent suit, it is pertinent that we refer to the
compromise decree to determine if any compromise was arrived at
between the parties on the title to the suit property. On a perusal of the
compromise deed, it is 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
30 AIR 1967 SC 591
31 AIR 1954 SC 82
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 the possession of the plaintiff –
Karnataka Board of Wakfs. The suit was instituted on 4 August 1983.
Significantly, the suit out of which the present dispute arises was instituted
on 5 November 1984 for seeking declaration and possession. It was
only thereafter on 22 November 1984 that OS 100 of 1983 was
withdrawn. OS 100 of 1983 was a suit for a bare injunction and no
declaration was claimed. In any event there was no adjudication on
merits.
49. The third
suit of 1983 instituted by the Karnataka Board of
Wakfs was a suit for injunction simpliciter. No question of title was raised
and none was adjudicated upon. As a matter of fact, the suit was instituted
on the apprehension that the property was likely to be alienated by the
legal representatives of Abdul Khuddus. Before the suit of 1983 was
withdrawn, the suit out of which these proceedings arise was instituted
for seeking comprehensive reliefs in terms of a declaration of title and a
permanent injunction. Therefore, the decision in the third suit does not
bar the initiation of the suit out of which the instant proceeding arises.
50. The High Court dismissed the second appeal holding that the
courts conclusively decided on the title to the suit property in the first
suit (OS 92/1950-51) and that any subsequent suit on the same issue of
title would be barred by the principles of res judicata. In view of the
discussion above, this finding arrived at by the High Court is erroneous.
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While holding that the judgment in the first suit has conclusively decided
that the title over the suit property belongs to Abdul Khuddus, the High
Court has lost sight of the observations in paragraph 7 and 10 of the
judgment of the trial court. It has been specifically held there that the
suit property was a Khazi service Inam and that Abdul Khuddus has a
prima facie right to the suit property. There was no adjudication to the
effect that Abdul Khuddus had an absolute title to the suit property.
Additionally, the decision of the courts in the first suit was delivered
before the suit property was notified as a wakf property in view of
Notification No. MWB 19(11) dated 6 July 1965. 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 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 to be
proved. However, the plea of res judicata may in an
appropriate case be determined as a preliminary issue when
neither a disputed question of fact nor a mixed question of
law or fact has to be adjudicated for resolving it;
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(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 judicatafrom 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
issue in OS 92 of 1950-51, which was a suit for
administration and management of trust properties and for
accounts, are distinct from the issues in the suit out of which
the instant proceedings arise. Therefore, OS 149 of 1998 is
not barred by res judicata in view of the decision in the
first
suit;
(vi)
While a compromise decree in a prior suit will not bar a
subsequent suit by virtue of res judicata, the subsequent
suit could be barred by estoppel by conduct. However,
neither the compromise petition dated 27 October 1969 nor
the final decree in the second suit dated 27 October 1969
indicate that a compromise on the title to the suit property
was arrived at. The compromise was restricted to the issue
of the erstwhile lessee handing over possession of the suit
property at the end of the lease; and
(vii)
The third suit (OS 100/1983) was a suit for an injunction
simpliciter. The third suit was withdrawn after the suit out
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of which the instant proceeding arises was filed for seeking
a substantive declaration and an injunction. No adjudication
on the rights of the parties was made in the third suit.
53. For the above reasons, we allow the appeal and set aside the
impugned judgment and order of the High Court of Karnataka dated 23
January 2012 in RSA 2189 of 2007. OS 149 of 1998 is restored to the
file of the Principal Civil Judge (Senior Division) Tumkur for trial. Having
regard to the fact that the suit was instituted in1998, the Trial Judge is
requested to dispose of the suit and to complete trial within a period of
one year from the date of the receipt of the certified copy of this judgment.
There shall be no order as to costs.
54. Pending application(s), if any, shall stand disposed of.
Ankit Gyan
Appeal allowed.
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]