Karnataka High Court
The Secretary Karntaka Baord Of Wakfs vs Sayyed Gouspeer S/O Dadapeer Peerzade on 28 February, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA R
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR.JUSTICE M.NAGAPRASANNA
REGULAR SECOND APPEAL NO.2076/2005
BETWEEN:
THE SECRETARY
KARNATAKA BOARD OF WAKFS
NOW RE-DESIGNATED AS
CHIEF EXECUTIVE OFFICER
KARNATAKA BOARD OF WAKFS
DARUL AKWAKF
CUNNINGHAM ROAD
BANGALORE-1
......APPELLANT
(BY SRI LIYAQAT FAREED USTAD., ADVOCATE)
AND:
1. SAYYED GOUSPEER
S/O DADAPEER PEERZADE
SINCE DECEASED BY HIS LRS. 1A TO 1E
2
1A. SAYYEDMUSTAFA KHADRI
SAYYED GOUSPEER PEERZADE
AGE: MAJOR OCC: JOB
R/O: KANKAL
NOW AT BIJAPUR.
1B. SMT. SHAHAJADBI
W/O ISUFPASHYA JAHAGIRDAR
AGE: MAJOR OCC: HOUSEHOLD WORK
R/O: SIGRATHALLI
TQ: JEVARGI DIST: GULBARGA.
1C. SMT. SAHEBJADI
W/O: NURUDINSAB INAMDAR
AGE: MAJOR OCC: HOUSEHOLD WORK
R/O: JARIYAL GALLI, BIJAPUR
1D. SMT. NOORJAHAN
W/O: SALIMPASHYA JAHAGIRDAR
AGE: MAJOR OCC: HOUSEHOLD WORK
R/O: KAKHANDAKI, NOW AT BIJAPUR
1E. SAYYED ARIPHULLA KHADRI @ GOREPEER
S/O SAYYEDGOUSPEER PEERZADE,
AGE: MAJOR OCC: AGRICULTURE
R/O: KANAKAL,
LAL-B. BAGEWADI
2. SAYYED NURSIDPEER
DADEPEER PEERZADE
3
3. SAYYED SAHEBPEER
DADEPEER PEERZADE
4. SAYYED ABDULKHADRI
DADEPEER PEERZADE
ALL MAJOR OCC: AGRICULTURE
R/O: KANAKAL, TQ: B. BAGEWADI
5. SAYYEDSHAHA
S/O: ABDUL HASAN KHADRI
SINCE DECEASED BY
HIS LRS.A TO C.
5A. AJIJBI
W/O SAYYEDSHAHA KHADRI PEERZADE
AGE: MAJOR OCC: HOUSEHOLD WORK
R/O: KANAKAL, TQ: B. BAGEWADI.
5B. JUMARPASHA W/O RAHIMUDDIN KHADRI
AGE: MAJOR OCC: HOUSEHOLD WORK
R/O: MUDAGAL, TQ: LINGASGUR
DIST: RAICHUR.
5C. KUMURUNABI W/O BASUPEERA JAHAGIRDAR
AGE: MAJOR OCC: HOUSEHOLD WORK
R/O: SAKAFROZA GALLI, BIJAPUR.
6. SAYYEDSHAHA SULTANAHMED KHADRI
PEERZADE,
AGE: MAJOR OCC: AGRICULTURE
R/O: KANAKAL, TQ: B. BAGEWADI.
4
7. JAGADESHRAO BHIMARAO KULKARNI
AGE: MAJOR OCC: AGRICULTURE
R/O: KANAKAL, TQ: B. BAGEWADI.
8. SMT. BIPASHA
W/O: MASTAN HUSENI
AGE: MAJOR OCC: HOUSEHOLD WORK
R/O: GUGI TQ: SHAHAPUR
DIST: GULBARGA. ...RESPONDENTS
(BY SRI RAJA VENKATAPPA NAIK AND
SRI ARUNKUMAR, ADVOCATES FOR R1 (A)
R1(B), (C) SERVED,
R2, 3, 4 AND 5(A) SERVED,
SRI VENKATESH MALLABADI., ADVOCATE
APPEARING FOR SRI AMEET KUMAR DESHPANDE,
ADVOCATE FOR R6.
R7, 8 SERVED
VIDE ORDER DATED 01.03.2010
APPEAL DISMISSED AGAINST
R1(A), (D), (E), R5(B) AND (C).
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE IN R.A.NO.154/2003 DATED
15.07.2005 PASSED BY THE CIVIL JUDGE (SR. DN)
B. BAGEWADI.
THIS APPEAL HAVING BEEN HEARD, RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING;
5
JUDGMENT
Aggrieved by the judgment and the decree dated 15.07.2005 passed in R.A.No.154/2003 by the Civil Judge (Sr. Dn.) Basavan Bagewadi and order dated 21.01.2002 passed in O.S.N.50/1990 by the Civil Judge (Jr. Dn) Basavan Bagewadi, the defendant No.4 Karnataka Wakf Board has filed the instant appeal.
02. The ranking of the parties will be as in the original suit for the sake of convenience.
03. The plaintiffs filed a suit in O.S.No.50/1990 against the 2nd and 3rd defendants initially for a bare injunction. The plaintiffs No.1 to 4 and defendant No.1 are brothers and all of them are residents of Kanakal village in Basavan Bagewadi Taluk. The defendant No.2 is the son of Defendant No.1. It is the claim of the plaintiffs that they and defendant No.1 are in actual possession and enjoyment of the suit Darga, which is situated in VPC.No.215 of Kanakal Village. The Darga is called 6 'Dastagirsa Darga' (hereinafter referred as 'suit Darga'). It is further claim of the plaintiffs and defendants that Darga is the ancestral property of the plaintiffs and defendant No.1 since from the time of the ancestors of plaintiffs and defendant No.1.
04. The suit Darga according to the plaintiffs is not a Wakf property, but a joint property of plaintiffs and defendant No.1, where annual festival i.e., 'Urus' is observed every year. It transpires that the great grand father of the plaintiffs had filed a suit in O.S.No.223/1894 in respect of the suit Darga and had obtained a decree of injunction in their favour. The suit schedule property mentioned in O.S.No.223/1894 was the suit schedule property was the same as the present suit. During the period of observance of 'Urus', the villagers and number of people from different villages visited the Darga at Kanakal village and take part in the festival. The ceremonies like "Ganda Urs Jiyarat" was also observed in the Darga on an annual basis.
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05. It transpires that the ancestors of the plaintiffs, against defendants have filed another suit in O.S.No.255/1918 seeking decree of injunction, which is also decreed in favour of the plaintiffs. As stated herein above during annual festival that used to take place in the Darga, the people who visited, used to offer alms and other offerings to the Darga. The alms and offerings so received from the people was being divided between the plaintiffs and defendants. This procedure went on from the time of the ancestors of the plaintiffs and the defendants till the present plaintiffs and defendants.
06. Things standing thus, defendant No.2 in collusion with defendant No.3 published a handbill inviting the people to annual festival in which defendant No.2 was shown as "Sajjada Nashin" and defendant No.3 was shown as the Chairman of the Darga Committee. In terms of the handbill which contained the invitation, defendant Nos.2 and 3 started calling 8 themselves as "Sajjada Nashin" and Chairman of the Darga Committee respectively. The plaintiffs protested to the said action of defendant Nos.2 and 3 that they are not entitled to call themselves as "Sajjada Nashin" or Chairman of Committee of the Darga and it was alleged that it was only to gain the illegal benefits of offerings that come from the people during the annual festivals that they had colluded. It is at that point of time, the plaintiffs filed the suit in O.S.No.50/1990 against the defendants for injunction to the effect that, the plaintiffs and defendant No.1 are the owners of the suit Darga and also to restrain the defendants from causing interference in the management of the Darga.
07. During the pendency of the suit there were plethora of correspondences between the Wakf Board and the Darga with regard to declaration of the Darga to be a Wakf Property. The plaintiffs and defendant No.1 had filed their objections that the Darga should not be 9 declared as a Wakf Property. In the suit the defendant No.2 filed his written statement contending that it was a Wakf Property and he was in-charge of the Darga. It is due to this contention that was taken by defendant No.2 in his written statement the Secretary of Karnataka Wakf Board, Bengalore, was impleaded in the suit as defendant No.4. After issuance of notice and appearance of the Wakf Board as defendant No.4, a contention was taken by the Board that, the Darga situated in Kanakal Village in VPC.No.215 measuring 300 x 300 was declared as Wakf Property. Registration Certificate to that effect was issued on 30.08.1994 and defendant No.2 was appointed as Mutwalli of the suit Darga. It was also the claim of the Board that it had constituted a Managing Committee of the suit Darga and nominated the Chairman, Vice- Chairman, Secretary and other Members on 30.03.1995 in terms of the Wakf Act.
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08. Parties were put on trial on the following issues:
01. Whether the plaintiffs prove that the plaintiffs along with defendants 1 (a) to (c) and 2 have right and interest over the suit property?
02. Whether the cause of action arose to file this suit?
03. Whether the suit of the plaintiff is not maintainable without the relief of declaration?
04. Whether the plaintiffs are entitled for the reliefs sought for?
05. What order or decree?
09. Based upon the pleading and the contentions the Trial Court framed certain additional issues as to whether the suit property was a Wakf property belonging to the Board or was the property of the plaintiffs and defendant No.1 and his legal heirs. Answering the 11 additional issue No.1, on the basis of evidence that was led in, declared that the suit schedule property was a Wakf Property and plaintiffs or the defendants had no right over the property and dismissed the suit.
10. Aggrieved by the dismissal of the suit, the plaintiffs preferred an appeal before First Appellate Court in R.A.No.154/2003. The First Appellate Court on hearing the parties was of the view that the Board has not placed any material on record with regard to the declaration of the property as Wakf Property in terms of Sections 4 and 5 of the Wakf Act by producing acceptable material and evidence, except producing the Gazette Notification dated 30.08.1994 and certain correspondences between defendant No.2 and Wakf Board. The First Appellate Court was of the opinion that the trial court had committed an error in declaring that the plaintiffs and defendant No.1 had no right over the suit property and it is a Wakf property on issuance of a Registration 12 Certificate. The First Appellate Court set aside the judgment and decree of the trial Court in O.S.No.50/1990 dated 21.01.2002 and decreed the suit and declared that the suit schedule property bearing VPC.No.215 of Kanakal village in Basavan Bagewadi Taluka is under the ownership of the plaintiffs and defendant Nos.1. Consequently the defendants or anybody were restrained by way of permanent injunction not to interfere with the suit property or causing obstruction to the plaintiffs in participating the Urus of the suit Darga every year.
11. The 2nd and 3rd Defendants challenged the judgment and decree of the First Appellate Court before this Court in RSA.No.2126/2005 strangely and shockingly without making the Wakf Board as a party respondent notwithstanding the fact that, before the Trial Court and First Appellate Court. A learned Single Judge, by his order dated 02.08.2012 dismissed the RSA.No.2126/2005 filed by the defendant No.2, 13 confirming the judgment and decree passed by the First Appellate Court, only answering the question pertaining to whether the original suit should have been transferred to the Wakf Tribunal, which has been constituted pursuant to the Wakf Act, 1995. The learned Single Judge held that Act came w.e.f., 01.01.1996 and it had no retrospective effect. Hence, it was within the jurisdiction of the Trial Court and the First Appellate Court to have decided the issue.
12. Challenging the judgment and decree of the First Appellate Court passed in R.A.No.154/2003, the Wakf Board has preferred the instant RSA.No.2126/2005. It transpires that the instant RSA.No.2076/2005 had been dismissed for non-prosecution by an order 26.11.2010. Thus, the learned Single Judge while dismissing RSA.No.2126/2005 took note factor of instant RSA.No.2076/2005 being dismissed. Thus, RSA.No.2126/2005 was decided without the Wakf Board 14 being a party in the proceedings. Defendant No.2 challenged the order passed by the learned Single Judge in RSA.No.2126/2005 before the Hon'ble Apex Court in SLP.No.38334/2012, which was dismissed by the Apex Court by its order dated 28.10.2013 refusing to grant leave. A Review Petition was also preferred against the order of dismissing the SLP.No.38334/2012 dated 28.10.2013 in R.P.No.4032/2015, which also came to be dismissed on 16.02.2016 both on merits of the review petition and on delay. In the interregnum this appeal is restored to file by an order dated 06.06.2014 condoning the delay of 1015 days in filing an application to recall the order dated 26.11.2010. The instant appeal was yet again dismissed for non-prosecution and the matter was again recalled in the year 2016.
13. After its restoration, this court has formulated the following substantial questions of law while admitting the appeal which are required to be considered:- 15
"01. Whether the First Appellate Court was justified in reversing the judgment of Trial Court?
02. Whether the suit of the plaintiff was bad for non issuing statutory notice under Section 56 of Wakf Act?
03. Whether the certificate of registration in respect of the suit property needs to be revoked or modified to grant relief to the plaintiff?
04. Whether the lower Appellate Court was not justified in granting relief without there being any pleading?"
14. Heard Sri Liyaqat Fareed Ustad the learned counsel for the appellant, Sri Raja Venkateppa Naik and Sri. Arunkumar, the learned counsels for the respondents No.1(A) and Sri Venkatesh Mallabadi the learned counsel for respondent No.6.
16
The contentions of the parties.
15. The contentions of the plaintiffs and defendant No.1 are in common. The plaintiffs and defendant No.1 contended that they are in actual possession and enjoyment of the suit schedule property. The Darga which is situated in VPC.No.215 of Kanakal village is known as 'Dastagiri Darga'. It was an ancestral property of the plaintiffs and defendant No.1 since times immemorial. It is the plaintiffs and defendant No.1 who would conduct the 'Urus' and also ceremonies like "Ganda Urs Jiyarat" on an annual basis. These festivals used to have large gathering of people from the village where it was situated as also from the neighboring villages and alms and offerings were liberally offered by all the people visiting to the Darga on the festivals. The alms and offerings were equally share between the plaintiffs and defendant No.1. This went on for ages from the days of the ancestors of the plaintiffs and defendant No.1. 17
16. The plaintiffs were constrained to file O.S.No.50/1990 before Civil Judge (Jr. Dn) and JMFC Court, B. Bagewadi when defendant No.2 declared himself to be "Sajjada Nashin" and defendant No.3 declared himself to be Chairman of the Darga Committee by publishing invitation/handbill at the time of annual festival. The suit filed by the plaintiffs were initially for bare injunction against defendants No.2 and 3 not to interfere with the affairs of the property/suit Darga. During the pendency of the suit Wakf Board came to be impleaded as a party respondent.
17. The plaintiffs further contend that the First Appellate Court after considering the entire material on record and hearing parties had rightly set aside the judgment and decree of the trial Court passed in O.S.NO.50/1990 dated 21.01.2002 and declared that nobody should obstruct the ceremonies that are performed in the suit Darga and it was the property of 18 the plaintiffs and defendant No.1. Both the plaintiffs and defendant No.1 submits that they were absolutely happy about the order passed by the First Appellate Court.
18. It is the further contention by defendant No.2 that he has filed RSA.No.2126/2005 challenging both the judgment and decree in O.S.No.50/1990 and R.A.No.154/2003 before this Court, as it had taken away the right of the defendant No.2 and along with it is the Wakf Board, who was defendant No.4 in both the proceedings before the trial Court and the First Appellate Court. Regular Second Appeal No.2126/2005 filed by defendant No.2 came to be dismissed by this Court by its order dated 26.11.2010. By then the instant appeal had been dismissed by its non-prosecution by order dated 26.11.2010. Noticing this fact Inter-alia and answering a particular issue with regard to jurisdiction the RSA.No.2126/2005 came to be dismissed by its order dated 26.11.2010. Defendant No.2 challenging the dismissal of the RSA.No.2126/2005 had approached the 19 Hon'ble Apex Court in SLP.No.38334/2012. The Hon'ble Apex Court also turned down the SLP. A review petition filed against the dismissal of SLP.No.38334/2012, is also dismissed.
19. The plaintiffs on the strength of aforementioned proceedings contended that the proceedings that arose in RSA.No.2126/2005 arose out of the same in R.A.No.154/2003 that having been attained finality by dismissal of the SLP and review petition by the Hon'ble Apex Court the instant RSA.No.2076/2005, arising out of very same proceedings of the trial court and the First Appellate Court has to be dismissed as it would operate as res-judicata and the dismissal of the SLP by the Hon'ble Apex Court would amount to affirmation of the order passed by the this Court in RSA.No.2126/2005. Hence, judicial proprietary requires the judgment of the Co-ordinate Bench is to be followed by this Court and as a consequence instant appeal filed by the Wakf Board has to be dismissed.
20
20. Per contra, the Board contends that the plaintiffs and defendant No.1 have come together colluded to knock off the property belonging to the Wakf Board. He would further submit that they were not parties in RSA.No.2126/2005 and the judgment and decree rendered by this Court in RSA.No.2126/2005 is not binding upon this Court. It would not operate as res- judicata it was open to the appellant to contend that the findings of the First Appellate Court are erroneous.
21. I have given my anxious consideration to the facts, pleadings and contentions advanced at the time of hearing of this appeal. On hearing the parties, apart from the substantial questions of law that are already framed, additional substantial questions of law are required to be considered. The following are the additional substantial questions of law that arise for my consideration apart from the substantial questions of law already framed and since the additional substantial questions of law touch upon the jurisdiction of this court 21 to consider the instant appeal. They are required to be answered at the outset before considering the substantial question of law framed. The additional substantial questions of law are:
ADDITIONAL SUBSTANTIAL QUESTIONS OF LAW.
01. Whether the order passed in RSA.No.2126/2005 would operate as res-judicata for the appellant to prosecute the present appeal?
02. Whether the dismissal of the SLP No.38334/2012 by the Hon'ble Apex Court would amount to merger of the judgment in RSA.No.2126/2005?
03. Whether the judgment passed in RSA.No.2126/2005 becomes a binding precedent to the instant appeal?
22. The learned counsels for the parties were heard on the aforementioned additional substantial questions of law as well, I now proceed to answer them. 22
23. Re. first additional substantial question of law, "Whether the order passed in RSA.No. 2126/2005 would operate as res-judicata for the appellant to prosecute the present appeal?"
24. In order to consider first additional substantial question, it is necessary to notice that against dismissal of suit O.S.No.50/1990 the plaintiffs have preferred the R.A.No.154/2003 before the First Appellate Court. The First Appellate Court set aside the judgment and order passed in O.S.No.50/1990 and declared that the property would belong to the plaintiffs and defendant No.1. In both the proceedings, the Wakf Board was a party. The defendant No.2 and Wakf Board both have preferred the appeals before this Court. Defendant No.2 preferred RSA.No.2126/2005 and Wakf Board have preferred the instant appeal. The instant appeal filed by the Wakf Board came to be dismissed for its non-prosecution on 23 26.11.2010. It is rather shocking that the Wakf Board, which was a party in both the proceedings i.e., before the Trial Court and the First Appellate Court was not made as a party in RSA.No.2126/2005 filed by defendant No.2 challenging the judgment and decree passed in R.A.No.154/2003. The Registry of this Court had raised an objection as to why the Wakf Board was not made a party. A note is written by the learned counsel for the defendant No.1 in the cause title of RSA.No.2126/2005, which reads thus, "Respondents No.4 and 5 are not made as parties before this Hon'ble Court as no relief is sought against them". Thus it was clear collusive effort on the part of the plaintiffs and defendant No.1 to keep the Wakf Board away from the proceedings.
25. RSA.No.2126/2005 came up for taking into consideration on 02.08.2012. The learned Single Judge of this Court formulated a particular question as found in Para No.5 of the order, which reads as follows:- 24
"On re-appreciation of the entire material on record, the first appellate court held that the trial Court committed illegality in dismissing the suit. The first appellate court held that the suit is maintainable and the suit property is the private property of plaintiffs, defendants 1 and 2. Accordingly, the first appellate court under the impugned judgment allowed the appeal, set aside the judgment of the trial Court and partly decreed the suit of the plaintiffs. Hence, this second appeal".
26. The substantial question of law formulated by this Court in RSA.No.2126/2005 on 08.09.2010 reads as follows:-
"Whether the law declared by this Court in case of Abdus Subhan Alias Subhansha and others Vs Karnataka Board of Wakf and Others, 2007 (1) AIR Kar Reporter 425, would apply to the case on hand, when the said decision has not taken into account Section 7 of the Wakf Act, 1995?"25
27. Since, this was the only question of law formulated, this Court answered and dismissed the RSA.No.2126/2005 by an order dated 02.08.2012 the relevant portion of which read thus:-
"10. It is not in dispute that plaintiffs filed O.S.No.50/1990 before the trial Court on 29.03.1990. The Wakf Act, 1995 came into force on 01.01.1996. Therefore, the Act, 1995 has no retrospective effect. Therefore, the suits filed prior to 01.01.1996 are to be continued before the competent civil courts and the Tribunal constituted under the Act will not get jurisdiction. In the instant case, admittedly, O.S.No.50/1990 was instituted much earlier to the Wakf Act, 1995 came into force. Therefore, the law declared by this Court in Abdus Subhan's case has no application to the facts on hand.
11. The fourth defendant contends that on 30.08.1994 they have notified declaring that the schedule darga as a wakf property. This aspect of the matter is considered by the 26 first appellate Court. Further it is brought to my notice that the appeal filed by the fourth defendant Wakf Board in RSA.No.2076/2005 came to be dismissed by this Court on 26.11.2010. For the reasons stated above, I answer the question of law framed above in negative holding that the law declared by this Court Abdus Subhan's case has no application to the facts on hand. Accordingly, the appeal is hereby dismissed.
12. It is manifest from the decree of the first appellate court that defendants shall not interfere with the plaintiffs' right to participate in the Urus and other activities in the schedule darge. It is made clear that defendants are also entitled to participate in the Urus and other activities of the darga situated in the schedule property."
28. In terms of the afore extracted order passed by this court, it is seen that this Court while dismissing the RSA.No.2126/2005 took into consideration dismissal of the instant appeal on 26.11.2010. Thus the only point 27 was considered was whether it was competent for the civil court to have continued with the suit or transferred to the Wakf Tribunal which had came into force on 01.01.1996, no other issues were decided.
29. For a proceeding to operate as a bar under Section 11 of the CPC i.e., as one being barred by res- judicata Section 11 is required to be considered, Section 11 of the CPC, 1908 reads thus:-
"Section 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 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."28
30. In terms of what is mandated under Section 11 of CPC, the former suit should be between the same parties litigating under the same title. The fact that defendant No.2 has not made the Wakf Board as a party before this court in RSA.No.2126/2005, assumes paramount significance, as the Wakf Board is not a party to the previous proceedings viz., RSA.No.2126/ 2005. It would not operate as a res-judicata against the appellant to prosecute the instant appeal and for consideration of the same by this Court.
31. The learned counsel for the plaintiffs seeks to place reliance on the judgment of Ajay Arjun Singh v. Sharadendu Tiwari, reported in (2016) 6 SCC 576 to buttress his submission that the judgment in RSA.2126/2005 would operate as res-judicata. Reliance is placed on the following paragraph.
29
41. The first submission of the returned candidate that the subsequent and conflicting finding is not legally tenable, if at all is based on any legal principle, it is based either on the doctrine of res judicata or some principle analogous to it based on public policy that there must be finality to the judicial orders. Even if the principle of res judicata is invoked (we only presume without examining the applicability of the same), what is barred under Section 11 CPC is the adjudication of an issue which was directly and substantially in issue in a former suit between the same parties and has been heard and finally decided.
32. The very paragraph relied upon by the learned counsel for the plaintiff in the afore-extracted judgment would clearly indicate that the former suit must be between the same parties.
33. As stated herein above RSA.No.2126/2005 was not between the same parties as the Wakf Board is not a respondent in the RSA.No.2126/2005. Thus, the 30 judgment relied upon by the learned counsel for the plaintiffs are not applicable to the fact situation.
34. For the aforementioned reasons and the law as declared by the Hon'ble Supreme Court, I have no hesitation to hold that the findings and judgment rendered in RSA.No.2126/2005 would not operate as res- judicata against the appellant to prosecute this appeal.
Hence, first additional substantial question of law is answered accordingly.
35. Re. Second additional substantial question of law, "Whether the dismissal of the SLP No.38334/2012 by the Hon'ble Apex Court would amount to merger of the judgment in RSA.No.2126/2005?"
31
36. The SLP filed by the defendants before the Hon'ble Apex Court came to be dismissed by the following order:-
"Heard the learned counsel for the petitioners. No reason to interfere. The special leave petition is dismissed."
37. A perusal of the order passed by the Hon'ble Apex Court would indicate that the SLP was dismissed in limine.
38. The Review Petition filed, was also dismissed both on delay in preferring the review petition and on merits by following order:-
"There is a delay of 670 days in filing the present review petition. The explanation offered in the application for condonation of delay is neither satisfactory nor reasonable. The application for condonation of delay is, therefore, rejected.32
Even otherwise we have gone through the review petition and the connected records. We do not find any merit therein. The review petition is, therefore, dismissed both on the ground of delay and merit."
39. The contention advanced by the learned counsel for the plaintiffs that dismissal of the SLP and Review Petition would be affirmation of the judgment in RSA.No.2126/2005 in its order dated 02.08.2012 is not acceptable for the reason that the Hon'ble Apex Court dismissed the SLP in limine and would not amount to affirmation of the order of the High Court. Doctrine of merger is inapplicable when the SLP is dismissed in limine without it being converted to a Civil Appeal. I am fortified by the judgments of the Hon'ble Apex Court in this regard. The Hon'ble Apex Court in the case of Batiarani Gramiya Bank v. Pallab Kumar and Others reported in (2004) 9 SCC 100, has held in Para No.27 which reads as under:-
33
"27. It was argued by the learned counsel for the respondents that the Bank has stated the aspect of financial crisis/constraints for the first time in the special leave petitions as the reasons mentioned by them in pruning down the indent. This statement is factually incorrect. The Division Bench, by its common order, in OJCs Nos.1866, 2981 and 5052 of 1991 while referring to the counter-affidavit filed by the Bank has clearly stated that on account of various factors including liquidity crisis, ban order on opening new branches and on account of financial burden incurred on account of implementation of Agricultural Rural Debt Relief Scheme and the award given by the National Industrial Tribunal, the authorities had decided not to fill up the posts though at the time of advertisement indent had been given. Thus, it is seen that in the counter- affidavit in all the writ petitions, the appellant Bank has raised the aspect of financial crisis. This submission of the respondents is, therefore, liable to be rejected. In regard to the submission made by the learned counsel for the respondents, though the appellant Bank 34 was bound to disclose the dismissal of its previous special leave petitions in an identical matter, we are of the opinion that the same need not be disclosed in the present special leave petitions since the previous special leave petition was dismissed at the special leave petition stage (Annexure R-1). Thus Court in a catena of decisions has held that the dismissal of special leave petition by a non-speaking order which does not contain the reasons for dismissal does not amount to acceptance of the correctness of the decision sought to be appealed against. Such an order does not constitute the law laid down by the Supreme Court for the purpose of Article 141. In this context, we may refer to a recent decision of this Court in Kunhayammed v. State of Kerala (three Judges)".
40. In terms of the law declared by the Apex Court in the aforesaid judgment, it becomes clear that dismissal of SLP in limine would not amount its merger such an order need not even be disclosed in subsequent proceedings.
35
41. A Three Judge Bench of the Hon'ble Apex Court in the case of reported in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376 while considering the entire spectrum of law on the issue has held as follows :
23. After elaborate discourse on almost all the aspects, the Court gave its conclusions and also summed up the legal position from paras 39 to 44. We reproduce the same hereunder: (Kunh ayammed case [Kunhayammed v. State of Kerala, (2000) 6 SCC 359], SCC pp. 382-84) "39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two-Judge Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the Constitution, (ii) doctrine of merger, (iii) res judicata, and (iv) rule of discipline flowing from this Court being the highest court of the land.36
40. A petition seeking grant of special leave to appeal may be rejected for several reasons.
For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the court,
(v) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expressions often employed by this Court while disposing of such petitions are -- "heard and dismissed", "dismissed", "dismissed as barred by time" and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the 37 special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 CPC or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 CPC act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of a special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract 38 applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.
41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant 39 leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68.)
43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the 40 order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.
44. To sum up, our conclusions are:
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages.
The first stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject- 41 matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment, decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of the petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 42 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 Rule 1 CPC."
43
24. Having noted the aforesaid two judgments and particularly the fact that the earlier judgment in Abbai Maligai Partnership Firm [Abbai Maligai Partnership Firm v. K. Santhakumaran, (1998) 7 SCC 386] is duly taken cognizance of and explained in the latter judgment, we are of the view that there is no conflict insofar as ratio of the two cases is concerned. Moreover, Abbai Maligai Partnership Firm [Abbai Maligai Partnership Firm v. K. Santhakumaran, (1998) 7 SCC 386] was decided on its peculiar facts, with no discussion on any principle of law, whereas Kunhayammed [Kunhayammed v. State of Kerala, (2000) 6 SCC 359] is an elaborate discourse based on well-accepted propositions of law which are applicable for such an issue. We are, therefore, of the view that detailed judgment in Kunhayammed [Kunhayammed v. State of Kerala, (2000) 6 SCC 359] lays down the correct law and there is no need to refer the cases to larger Bench, as was contended by the counsel for the appellant.
25. While taking this view, we may also point out that even in K. Rajamouli [K. Rajamouli v. A.V.K.N. Swamy, (2001) 5 SCC 37] this Court took note of both these judgments and explained the principle of res judicata in the following manner: (SCC p. 41, para 4) 44 "4. Following the decision in Kunhayammed [Kunhayammed v. State of Kerala, (2000) 6 SCC 359] we are of the view that the dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm [Abbai Maligai Partnership Firm v. K. Santhakumaran, (1998) 7 SCC 386] that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the 45 preliminary objection of the counsel for the respondent and hold that this appeal arising out of the special leave petition is maintainable."
26. From a cumulative reading of the various judgments, we sum up the legal position as under:
26.1. The conclusions rendered by the three-
Judge Bench of this Court in Kunhayammed [Kunhayammed v. State of Kerala, (2000) 6 SCC 359] and summed up in para 44 are affirmed and reiterated.
26.2. We reiterate the conclusions relevant for these cases as under: (Kunhayammed case [Kunhayammed v. State of Kerala, (2000) 6 SCC 359], SCC p. 384) "(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by 46 the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 Rule 1 CPC."
47
26.3. Once we hold that the law laid down in Kunhayammed [Kunhayammed v. State of Kerala, (2000) 6 SCC 359] is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case [Kunhayammed v. State of Kerala, (2000) 6 SCC 359] .
42. In terms of the law declared by the Hon'ble Apex Court, in the aforesaid extracted cases, it becomes unmistakably clear that the judgment in RSA.No.2126/ 2005 was not affirmed by the Hon'ble Apex Court. In the circumstances it is always open for this Court to independently consider the instant appeal, on its merits.
Hence, second additional substantial question of law is answered accordingly.
48
43. Re. third additional substantial question of law, "Whether the judgment passed in RSA.No.2126/2005 becomes a binding precedent to the instant appeal?"
44. As stated herein above the RSA.No.2126/2005 filed by the defendant was without making Wakf Board a party. The plaintiffs and defendant colluded to keep the Wakf Board away and it was a fraud played by them on this Court for not making the Wakf Board as a respondent. Secondly, it is not brought to the notice of this court that the instant appeal was dismissed for its default. Both these factors would clearly indicate that RSA.No.2126/2005 was a collusive effort on the part the plaintiffs and the defendants and they had played fraud on this Court. Judgment and decree obtained by playing fraud on Court cannot be a binding precedent. Thus, it is open for this court to consider the instant appeal on its merits. It is 49 useful to refer the judgment of the Hon'ble Apex Court in the case of S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 at paragraphs 5 and 6 which read as follows:
5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-
grabbers, tax-evaders, bank-loan-dodgers and 50 other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased 51 the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex. B-15 and non- suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.
45. Hence, in terms of the law declared by the Hon'ble Supreme Court and for the reasons that I have assigned in the additional substantial questions of law, I hold that the judgment in RSA.No.2126/2005 does not operate as a binding precedent.
Hence, third additional substantial question of law is answered accordingly.
52
46. In the light of the answer to the additional substantial questions of law, on the submissions of the plaintiffs being held against the plaintiffs, I now proceed to answer the substantial questions of law that is framed by this court, which is already extracted hereinabove.
47. The plaintiffs filed suit in O.S.No.50/1990 when the defendant No.2 declared himself as to be Sajjade Nashin, defendant No.3 to be Chairman of the Committee. Plethora of correspondences had taken place between the suit Darga and the Wakf Board for declaration of the said property as Wakf property all of which were produced as Exhibit 'D' series before the Trial Court.
48. It is necessary to notice Ex.D-Series documents. The correspondences between the parties and Wakf Board are right from the year 1971, which were produced before the Trial Court as Exs.D.4 to 25. 53
49. Ex.D.2 is the proceedings of the Wakf Board declaring the suit Darga to be a Wakf property on 30.03.1995. This was declared in terms of the Wakf Act, 1954. Ex.D.4 is the authorization issued to Wakf Inspector to tender his evidence in the instant original suit. Ex.D.5 onwards communications between the plaintiff and Mysore State Wakf Board, which went on with regard to declaration of the property as Wakf property. Ex.D.19 is dated 15.07.1978 a communication from the Secretary Wakf Board to the plaintiff. This was with regard to registration of the suit Darga as Wakf property. Ex.D.20 is dated 05.07.1991 a communication to the Secretary of Wakf Board from the District of Wakf Committee, Bijapur communicating the detailed report of the Wakf Inspector- cum-Auditor dated 19.06.1991 directing to issuance of necessary notices to calling for objections to declare to be a Wakf property. Enclosure was Ex.D.21 report of the Inspector-cum-Auditor District Wakf Committee. Ex.D.22 is the application prescribed format filled up by defendant 54 No.1 and communicating the same to the Wakf Board which records that Mutawalli is functioning honorably. Ex.D.23 is dated 11.09.1991 which is public notice issued under Sections 25 and 26 of the Wakf Act, 1954 for calling for objections from General Public prior to declaration/ registration of the suit Darga as Wakf property. Ex.D.24 is the certificate of registration dated 30.08.1994 declaring the suit Darga to be a Wakf property.
50. Thus, the aforementioned plethora of correspondences between the defendants and the Wakf Board, were taken into consideration by the Trial Court is also the evidence of parties and on consideration of thorough analysis of the same, the Trial Court came to conclusion that all the procedure that was required to be followed and was in fact followed prior to declaration of the suit Darga as a Wakf property. The plaintiffs have also produced 11 documents in their favour as Exs.P.1 to
11. None of these documents would indicate that it is a 55 joint property of the plaintiffs and defendants. On the contrary there is copious evidence in favour of the Board that is a Wakf Property.
51. It is further necessary to notice that, when the plaintiffs had filed a suit, it was only for a bare injunction. But when apprehension of the plaintiffs came about that, suit property would be declared to be a Wakf property. Even before its actual declaration sought to amend the prayer in the plaint by seeking decree in the nature of declaration that the suit property is a joint property of the plaintiffs and defendant No.1 in the year 1993. When the actual declaration was made on 30.08.1994 the Wakf Board was impleaded as defendant No.4 in suit O.S.No.50/1990. The Trial Court on the basis of evidence held that the documents with regard to the suit property to be a Wakf had came into force in the year 1971. The public notice itself was issued in the year 1991 and an inquiry was conducted and thereafter the 56 suit Darga was declared to be a Wakf Property. On an analyses of the exhibits produced, the Trial court concluded that the plaintiffs did not prove that the suit property was still under the ownership of the plaintiffs and defendant No.1, as it was declared to be a Wakf Property with issuance Registration Certificate in the year 1994.
52. It becomes imperative to notice that the plaintiffs have challenged the declaration that the property was a Wakf Property which was made by the Wakf Board on 30.08.1994, before this Court in W.P.No.33595/1995 (GM-WAKF) wherein the plaintiffs sought the following prayer:-
"To quash the order bearing No.KBW/REG/16/BJP, dated 30.08.1994, vide Annexure-"A", issued by R1, etc.,"
57
53. The challenged was to the order dated 30.08.1994 declaration of the suit Darga to be a Wakf property. The said writ petition was dismissed for non- prosecution by order dated 01.12.1999. Thus, the challenge made by the plaintiffs to the Gazette Notification dated 30.08.1994 declaring the suit Darga to be a Wakf property, became final, as even after lapse of 20 years there are no steps taken to get the order recalled and even as on date the declaration of the property to be a Wakf property remains.
54. The dismissal of the writ petition though was not brought to the notice of the trial Court. The trial Court independently held that once there was a declaration of the suit Darga to be a Wakf Property, as a matter of fact, the Chairman of the District Wakf Committee had recommended the names of the plaintiffs to include them as Mutawalli along with the defendant No.1, would clearly indicate the fact that it is a Wakf 58 property and cannot be a joint property of plaintiffs and defendant No.1. It is here it can be said that, once a WAKF is always a WAKF.
55. It is further contended that under Section 100 of the CPC, scope of interference by this Court in the present appeal is limited and would place reliance on the judgment of the Apex Court the judgment in the case of Damodar Lal .v. Sohan Devi and Others reported in (2016) 3 SCC 78, to contend that even if the finding of fact is wrong that by itself would not constitute a question of law on the principle that the Appellate Court cannot interfere with the judgment and decree of the first appellate court unless it is perverse. This judgment also would not be applicable to the facts situation as in terms of my discussion hereinabove. There is copious evidence in favour of the Wakf Board to declare to be a Wakf property and not a joint property of plaintiffs and defendants. The judgment of the Hon'ble Apex Court 59 would indicate that, if there is some evidence which his acceptable, in the instant case there is no evidence that is acceptable to conclude that the suit Darga is a joint property of plaintiffs and defendants and the judgment and decree of the First Appellate Court is perverse. The First Appellate Court in terms of Section 96 of the Code of Civil Procedure 1908 is required to assign its own reasons if it has to reverse finding of fact of the Trial Court. As perusal of the judgment of the First Appellate Court does not contain separate reasons to reverse the finding of the Trial Court which has extensively dealt with oral and documentary evidence. The First Appellate Court in a very cryptic manner reversed the finding of the Trial Court which was based upon oral and documentary evidence with regard to the property viz., suit Darga a Wakf Property.
60
56. It is useful to refer to the judgment of the Hon'ble Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari (deceased) by LRs. reported in (2001) 3 SCC 179, wherein the Hon'ble Supreme Court has laid down the principles of consideration of evidence by the First Appellate Court, paragraph 15 of the aforesaid judgment of the Hon'ble Supreme Court reads as follows:-
15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as 61 alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v.
Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general 62 agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the 63 decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [AIR 1951 SC 120] ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second 64 appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.
57. In terms of the law declared by the Hon'ble Supreme Court as extracted hereinabove, it becomes unmistakably clear that the order of the First Appellate Court is completely contrary to Section 96 of the Code of Civil Procedure, as well as law laid down by the Hon'ble Supreme Court.
58. In view of the above, the substantial questions of law arisen for consideration in this second appeal, is answered by holding that the first appellate court was not justified in reversing the judgment of the Trial Court which was 65 based upon clear evidence and judgment of the First Appellate Court does not indicate cogent and coherent reasons more so in the light of the fact that there was no evidence to grant relief to the defendants by the First Appellate Court and I hold that the certificate of registration of the suit property declaring it to be a Wakf Property need not be revoked or modified, as the plaintiffs are not entitled to any relief.
59. As a consequence and for the afore- mentioned reasons, I pass the following:
ORDER
(i) This second appeal is allowed with costs throughout.
(ii) The judgment and decree dated 15.07.2005 on the file of the Civil Judge (Sr. Dn) Basavan Bagewadi, in RA.No.154/2003 is set-aside.66
(iii) R.A.No.154/2003 is dismissed.
(iv) The judgment and decree dated 21.01.2002 passed in O.S.No.50/1990 by the Court of Civil Judge (Jr. Dn) Basavan Bagewadi, is restored.
Sd/-
JUDGE KJJ