Karnataka High Court
The Jamia Masjid vs Sri K V Rudrappa S/O Sri Veerabhadrappa on 23 January, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
-3- THIs RSA Is FILED U/S 100 OF CPC AOAIN's*If THE JUDGEMENT AND DECREE DT.o2.o7.2oo7 PASS:lE.D*--_ IN RA.NO.l25/2006 ON THE FILE OF THE III ADDL.I)IsfFI2I'eT_'_JILIDGE, TUMKUR, DISMISSING THE APPEAL AND cONFIRMI'NfG- JUDGEMENT AND DECREE DATED o3.o2.2rIQ_e$.VvI>A:ssED IN OS.NO.l49/1998 ON THE FILE OF 'l'hlE"'PRI,ICl'--957lL_JU'DGE v{sR.D.N.)' ; AND CJM., TUMKUR. THIS RSA HAVING BEEN: "AND ,FEsEIiVED"'IFOI2' JUDGMENT ON 3.1 1.2011 AND COMING ON" EOR_PRONQUl\IC'EMENT, THIS DAY THE COURT DELIVERED 'l"'I:lEFOLLO'NlNG.:-I ' This is plaintiffs?t'see:on'd_?».appe.al7'a'questioning the Correctness and decree passed by the in RA NO.l25/ 2006 dated appeal filed by the plaintiff came to bed' judgment and decree passed by ---the Judvg.e...v(Sr.Dn.) & CJM, Tumkur, in OS 3.2.2006 dismissing the suit came to be affii if AA Court by order dated 6.9.2011 has admitted --.t'1'"I'€i"€iDOV€ appeal to Consider the following substantial ' 'questions of law: (1) Whether the trial court was justified in dismissing the suit on the ground of 4%/ - 4 _ resjudicata by taking into consideration the earlier suits namely (1 ) OS:92/50-51,'e'(2) OS:748/1 968 and (3) os.-1 00/1 983.? q (2) Whether the Lower Appellate it correct in affirming the judgmetit 'arid decree.? T --« * 3. Heard Sri C.S. Prasan_na appearing for appellant,' Sri counsel appearing for respondeinitiil Shanrnugappa, learned counsels. appear'ing": No.1/caveator, Sri A.V. appearing for R5 were reported to be dead brought on record as R6, R7, R8, R9, Rl'(3_RleV end R6(b) is also reported to be V _:4.-- suit in question namely OS:149/1998 (Old No.96'/84,~.rei1umbered as os No.l62/89) was filed by "~«3§'i;j'~,_a'ppellant.wherein seeking relief of declaration to declare that ppiitate. _Wakf Board is the owner in possession of the suit -property which is bearing survey No.2, Gubbi, Kasaba Hobli, it '"'n1easuring 2 acres and 4 guntas as described in the plaint schedule and for further relief of permanent injunction to W - 6 A 3.2.2006 answered issue No.5 in the affirmative an_d issue No.6 in the negative and consequently dismissed the 6. Aggrieved by order of dismissal of Atrial Court, plaintiff preferred an is Addl. District Judge, Tuml«:u_r. arguments of learned Court by Judgment dated 2.7 affirmed the order of trial court. C 7. order» passed by the Lower AppellateV..Cuourt_l,x 'preferred; appeal to this court in RSA No.2.l89/ appeal). After considering the arguments advlanced bysthe learned advocates appearing for courtiby order dated 2.7.2008 allowed the .'appeal,._ the judgment of the court below and remanded gltllieriiatter back to the trial court for disposal in la.ccordanc'e;. with law. Aggrieved by the said order of remand, this court defendant Nos.2. 3 and 4 as the legal of deceased 1" defendant filed SLP in Cvl. '»»._4l4:.No.26O47/2008 before the Hon'ble Apex Court. Leave came to be granted and it was converted into Civil Appeal We - 7 - No.7240/2010. Defendants 3 & 4 had filed IA No.1/2008 in this appeal (RSA 2189/2007) seeking recall of tliecjudigmeiit and decree passed on 2.7.2008 on the ground W__e1'e not heard. This court by order datedb'25.09'.'2'0l0_8 the said application. Aggrieved by the A SLP No.29786/2008 and leay'e._vwas'v-granted converted into CA No.724l came to be considered by and by order dated 30.8.20l0_:both yvere allowed by setting aside::.tlil'e by this court on and remanded the matter ""lre~hearing. At the time of remanding thellrn atter).Hor1"ble Apex Court has observed that ..~.wl1erj;'"two'judgment.s_._iof concurrent findings are set aside respondents should have been issued and as
Court remanded the matter back to this court for consideration. As such present appeal is before this court for reconsideration/rehearing. Now, all the parties lfithis appeal are represented by respective learned __.adVocates who have addressed arguments in extenso and V -8- elaborately and it is also agreed by all the learned a that all the parties are duly represen'ted..i '
8. Sri Prasanna the plaintiff would contend is the property of Jamia Masj'idV_fi aiidl'ldecllaVra_tionlavndfpossession was sought for by the principles of resjudicata. the as affirmed by the lower contend that OS:92/50- 51 was bylldlevotees of plaintiff ~ Jamia Masjid, Capacity and in the said suit what has" been .fadj'ud'i':eated and decided is as envisaged ._(a) to"(h) of section 92 and the said suit was fil_eld__foVr a scheme and even otherwise a liberty has 2 been=.g_ive_n~inj..*the said suit itself to the trustees to file a suit appropriate relief after new trustees are appointed and the observations made therein would constitute =r.e.sjludicata and as such present suit filed by Jamia Masjid 9' seeking declaration of title cannot be held to be barred by res-judicata. He would contend that what is to be examined is as to whether the findings in OS No.92/50~5l which came ¢/
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contend that it is not a conclusive decision on.'.fneri_ts-lofthe» 4_ claim over the title to suit schedule__proper'ty;:'_':.'HeV"woul'd»_ submit that in order to invoke the doct'rine of . ingredients referred to thereinare recmilred tolje satislfied full, namely, the issue in suits"should:V}haVe been same and adjudicated and both the courts should be the same and admittedly the§.c'o:tl§1; OS No.92 /5051 did not have? adjt1.--dicate the title relating to the was a scheme suit. He would also in these two suits namely OS No.92/ vandf'.th'e."~~'l'present suit OS:l49/98 are not ....same.;«.{.InlA'the ea'rli.er____suit i.e., 92/50-51 it was filed by the present suit is filed by the Jamia Masjid and power of suits to be tried u/s.92 of CPC "'and-._'.the° power of the court to try suits of ordinary V"---original jurisdiction u / s.9 of CPC are different and operate in rydiffferent spheres, and as such, he contends that only when .;s.p1V_i__blsequeI1t suit is also a scheme suit then it would operate ~ c has resjudicata and not otherwise. ¢}(/ -12- 8.3. He would contend that defendants.§lare"I=llilteiy._.to take protection under explanation of and contend that suit is barrediaaby I provision would not come to ti"i€__ aid issue framed in the present sL1ilt'Vi'12jaInely /98 is not the same issue and adjudication in OS No.92 He_.w'ould'_fL1rther elaborate his submission_s.--::by_ 'exren otherwise the present suitgis since cause of action pleaded stii-tsiare"different. He would contend that afte:r._th.e' the suit in OS No.92/ 50-51 Mr. Kazi Abdul the suit schedule property to _ V the board in way of declaration in the year 1963 and InA'-I_prop.ertiesTmanaged by him has been published in Gazette 10.7.1965 and same is not challenged I it wouldwgo {to show the title has Vested with the Wakf Board. , He would submit that OS No.748/1968 which was by the present plaintiff came to be compromised and haflccordingly it was reported by filing a petition u / o.23 Rule 1 and even if it operates as a bar under order XXIII Rule 4(b) said plea cannot be construed as resjudicata since issue has 'V _ _ to be framed, adjudicated and answered separately and same cannot be a ground to dismiss the suit on the of resjudicata at the threshold. He would submit a marked difference between sec. l 1_ and Order K2 ~ to of Code of Civil Procedure . If orde'i7&ll1d_R'ulle contended then an issue has'»to"'bVe framed,_Vadjudicated and answered independently and th.eur:'ep..'cé1f1_nOf1§5«,3.,ove;1apping of these two provisions. abandonment, relinquishment" of the parties which can only after a full fledged t_ri--al- at and not otherwise. He contends''' in os No.92/5051 or os No.748/68 disclose that there is adjudication with
-"'.regar_ii§?toE right"o£..Kazi Abdul Kuddus as the owner of the V'pro.perty'iq'ue'stion or his relinquishment of the claim and as prineiplzes of resjudicata is not applicable. He would vCF,,_'submit OS:lOO/1988 even if it were to be held that 'prc>visi'or1 under Order ll Rule 2 of Civil Procedure Code is ,.._flattracted suit in question cannot be dismissed by extending _.:.the said principle to resjudicata. He would summarise his contentions as under:
é'/may ,14- (1) Suit OS:92/50~51 is a suit filed, adj-u'dic.ate9d"1 1' and decided u/s.92 of the C.P.C. b_y..a_ of limited jurisdiction wherein"decglaifationiof the].
property belonging to Abdul Kuddua' _wasF.r1o_t f adjhdicated. 9' '~. «. "
(2) Parties in OS:92/50~5].__and "parties i1i"present V suit OS:149/98 ar-e"d._ifferent. ' 1 (3) Cause of action in O'Sy:'92/50¥'51p'andg the cause of action in «..the1:'pre's_ent suit 149/ 1998 are V(1ifff3r€I1t and" ~--dist1r1ct.
(4) The court which la-dju'di_ca-tedbband decided OS:92/50:51 has _ no - j1.1ri'sdictiVo'n to grant declar_at1'on'~and its _powerd_jtoV grant the prayer is cir_c:um.s'crib.r:d by the iprovilsion (a) to (h) of (5) Any firidiing giyeniiln .(__)S:9§2/50-51 would not the (op"em1;1) as uifesjudyiicata {dos 149/98.
8.5. 'In szivpportllof higsllsubmission, he has relied upon fol.l§oVVing judgrnieritsiz 1 (.1) ».__"Al'R:l"i952 so 143 " 'llllfraggdasji Guru Bhagwandasji VS. 9 T2) .l3lXf1E€IafE1él}.l§(i:l\}aL12fibhai and others 1' Ram Baran Prasad vs. Ram Mohit: Hazra and others "(-3) A1R1974 so 2141 Swami Parmatmanand Saraswati and another Vs. Rarnji Tripathi and another (4) AIR 1928 PC 16 Abdur Rahim and others Vs. Syed Abu Mahorned Barkat Ali Shah and others Ck/,),9 -15- (5) AIR 201 l SC 9 Alka Gupta V. Narenderizliuniaiflv " 1 V (6) AIR 1989 Patna 321 V _ is 1 Haldhar Prasad _Girid'ih«_l\/Iunieipality and others (7) AIR 1963 so ' Mysore' te:lEléetriC.i'ty_VBloa'rd Vs. Bangalore V\/;ooll_e.n;*~ C'otto._Ii~__a1~2.d "Silk Mills Ltd and others (8) " lA1'R§ :10 1 o§sc:l:8»1:j8 Sonavane (dead) by L.Rs.
ovthersty/."Vi'_i;wh11 Hira Mahar (dead) by L.Rs. 'V "AIR 3272 It Panchayat of Village Naulakha Vs. Ujagar "1 _ " "and others __'("io) _ .AiR'1994 Madras 43 E ;.N;Anandan Vs. Ayyanna Gounder and others V. ILR 1997 KAR 1127 Srnt.P.Vasanthi Vs. Smt. Virnala Martin and Another
9. Per Contra, Sri PD. Surana, learned Counsel appearing on behalf of respondents 2 <3: 3 would support the orders of the court below and has brought to the notice of *(/ -15- this court all the earlier proceedings and conten._dsv that is no infirmity in the orders of the courts below as"suc'h, 7 he prays for answering the substa_nti_al qu'e_--stiori.s"
formulated herein above againstvwjlgtlae ap."pe__llan_ts_: for dismissal of the appeal. lie wQlu«lel."gsub.mit th'at:....Javl§llia Masjid which is the plaintiff virtually the plaintiff in all ot_h'er_h the court to consider the earlier suit which was for declaringl as the property of Janlia l\/l,vasjid_ alid .i_ts_p_'ossession as also paragraphs 2 & 3 of ll,l1_€4'pl€tl11.tlv(fjS:_l'§'--é/'ll984 renumbered as 149/1998 and later renu_rrlbere_d as 1.62 of 1989).
V submit that Jamia Masjid by itself is not a legal entity_ as such the declaration that has been 'sought to declare the suit schedule property to be the "i.'~al"proper_ty of the Wakf Board. He would further contend that ifpiurlderfsection 92 (c) and (cc) of Code of Civil Procedure, 'ipmver is available to the court to order for vesting a property if ~ "in a trust or directing it to be delivered to any other person who is entitled for such possession and court can go into the W, _ -
question of title to deliver or vest the property' possession. As such, he contends that the trappings of the Civil Court suit.
9.2. He would draw court to paragraphs 7 and 10 of 50-51 to contend that alleged to take such steps as relate to the terms of the grant contends that said inam according to the Trial Court liberty trhatlhasyybeenf'vvould not mean and include to file a fresh suit at" all the plaintiff is aggrieved by said to seek review of said judgment since said judgmlent clecifee has been accepted by it without being it cha11eiiged_;' ' .Y A. 9:3. "He would further elaborate his submission to that in the plaint no where it is stated that Kazi Khuddus dedicated the property to Jamia Masjid as llfilhlll/losque property. He would submit that defendants have purchased the suit schedule property from the Legal %/ -18- Representatives of Kazi Abdul Khuddus deeds dated 20.4.1983 and at this point of ' plaintiff nor the legal heirs of Kazi:A'b'dul 9 j around and contend that No.92/50~51 is not bindingllo.n:'~V..thern'. ffirtherf submit that the suit was-_file§d by two persons who claimed -the affairs of the Mosque representing wherein the present plaintiff thefpresent suit is filed by the its President and as such, the issue which has been adjudicated"!and" was relating to the ownerséhlip,/titlela-ndlsaid issue having been settled, it cannot would be barred by resjudicata.
if would further contend that one more suit OS '.No.7él8,{ was filed by the Mysore State Board of Wakfs »p_*rede"c.essor in title of present plaintiff seeking declaration to that suit property constitute Wakf, for possession if for past and future mesne profits and contends that said plaint had been presented by its Secretary and Kazi Abdul Khuddus had been arrayed as 18' defendant in the said suit, K -19- which ended in a compromise gwheretindeyrl""prayer lT()I'I:' declaration has been abandoned and as --.sL1.ch:V_.sa»i.d compromise also operates as _r'esjudicvata.ar1Id --*Board.I' cannot be now permitted to once_liagain_» seek «de_clar*ation that it is the owner of the lsuit _schedulefjprolperty by filing the present suit through_.th.e:fpr~esen'tf".h}jlai.ntiff. He would contend that thle-plrolV'ision of law contained in Order XXIlI..VI{ul;ep4(b),aplpellantliislllprecluded from filing a fresh suit. that under Order XXIII Rule 3A "or Code ofZfliyil._IP.ro-cedure no suit will lie to set aside a declree on the Ilgrvound that compromise on which ..decre_e-sips' is 11o_t_'l.awful.
would contend that subsequently, Karnataka Boardlof Wa_kifsIlfiled one more suit OS No.lOO/1983 against .¢Abdul"l\z/Iasoob S/o. Abdul Khuddus and defendants I to 4 seeking relief of perpetual injunction which was on 22.1 1.1984 and as such, two suits cannot be V.m_aintained for same cause of action and it is hit by Order II ~ il.l'Rule 2 Civil Procedure Code. As such, he contends that conclusion arrived at by the courts below that suit of the -20- plaintiff is barred by resjudicata be s1,1stained'lllai'il€l':v be dismissed.
9.6. He would also contenld-that plaintilffr in thelpresentll suit seeks for declaration" not in"'its¢A1'f in favour of Wakf Board. He would draw tlie"atte}'1tlLvion =:l(_)'fVf'['l1.ViS Court to the records of the TI'lal'.COLlI'l,--'+L'C» .c:ont;eridlthat"' was issued on Wakf Board a'lsc;,and 3'-theire"fwas_:a'-'representation through their Advocate for impleading IA No.VIl waslla'lseoi1v?fi1eldf'}Vbefore the_ll"l'rial Court on 26.8.2003, which came to order dated 15.9.2003 and same was no't.._4challeng'ed' as such, Jamia Masjid cannot _,now for any"-Vre_l_i_ef in favour of Wakf Board in the ipresient would contend that foundation for all the based on 1990 suit and at no point of time, .l:So'ard has sought to get itself impleaded. He "luv."wou1d__submit that whatever the reliefs that parties wanted 4l_'l1_asV_lbcen granted and it has been accepted in OS No.92 / 50--
Sland also in OS No.748/1968. He would submit that a consent decree remains Valid unless set aside and would be binding on all the parties and as such, consent decree drawn in OS No. 100/ 1993 would also operate as resjudicata.
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He would submit that filing of the suit OS No. / 4_ was suppressed in the present suit, 9.7. Replying to the arg'u.ments._'advanecved: llégrarneds counsel appearing for plaintiffV:..V't'he that judgment reported in by larger bench and as such, this will hold vtlieljudgments relied upon by the appe1lan--t/ hast'ltobeilgfignored. He would submit in is relied upon by the learned it for~~-- appellant, the issue of resjudicata wasVnotV'»u:nd4e'i<':_c'ons'ideration and matter went to the High Court onvltheljissuje of cross examination of witness _.._and .there~ is only apassing reference made regarding such said judgment is inapplicable to the facts 5 V In support of his submission, he has relied upon following judgments:
(.1) AIR 1990 so 444 R. Venugopala Naidu and others vs. Venkatarayulu Naidu Charities and others CV/e -22- AIR 1996 SC 1211 Singhai Lal Chand sdainé 2 Rashtriya Swayam SewakTSjangh,_'Pan.nva_ V 2. 2 ?x'f'1E' ?§>%%'%c 375 Mohammad Ghotrse-._V. .
Muhammad KuthL1bt1.di'n Sahib anadiothéers AIR 1954 so _ 1' A Shankar Sitar.am'=. another VS.
Balakriohna iSita,ra.m-Sovntakkte and others 1'Sai.1e7ndré§.;"Narayan "Bhanja Deo VS. The State vi;f«.O'1*irssa " -
9 9 AIR 19917 so 1Peéitonji"".Gariwa1a VS. Union Bank of _ _ Ind'iaan.d1-- others '«.(1§3924) 2 sec 14 * .1"-.._ASL11*o.c}.1ana Amma Vs. Narayan Nair ' --Sruljoehana Amma VS. Narayanannair 112006) 10 sec 782 T ulsan vs. Pyare Lal and others
-9.) (10) AIR 1978 ALLAHABAD 485 Gokul Chand VS. Jagdish Chandra and another AIR 1989 P & H 324 Gurudev Kaur and another VS. Mehar Singh and others dc/9 Sahjh Var1d1v{other5s -23- (11) A1R1974PATNA 91 Sri. Narain Singh and others Vs. Ba1esh_W'a.i*.c.
Singh and others "
(12) AIR 1974 AP 303 _--
(13) AIR 1981 SC 2198;' Gulam Abbas a1ide»fiothei's of UP. and
10. Sri Shanmugapfparp appearing for respondent No. 13.. Court the order passed by the Viiiifiiereuiiclei' the judgment dt. 27.9.3008' é5;9":d2oo8 of this court came to be setzasided to be remanded for rec hearingand b'r*ii_igs.dto )'the""notice of this court that prayer Vfxrnadpe the presentflapipeal is only seeking a remand. He legal heirs of 13' respondents Vendor i.e., 9' responden_t~ 4'_i(4jsince deceased), 51" defendant (5th respondent '*ti3f"he're1n deceased), and defendants 7 to 9 (i.e..
"rldespondients 10 to 12) had filed the written statement before the..'1'ria1 Court at the first instance on 17.10.1985 raising the issue of resjudicata Vide para 11 and 14 of the said written statement and as such, respondents 4, 5, 7 (A) to (D), ix'
- _ 8 to 12 who are legal heirs of Kazi Abdul Khuddus____cannot now contend that present suit is not barred by re_'sju_'d_ic--ata.
He would submit that against judgment and in os 92/50-51, no appeal or Cross»tQbjec'§tioij"{ijas"filed'i'.by'.
the legal heirs of Kazi Abdul explanation (iV)(V) and (vi) ll and contends that when a decree refusivngihe prayer sought for than explanation He would elaborate his co.nteD1i.tion;;slVlto' Vf)S.92/5O--5l, the board has of Abdul Khuddus and as a subsequent suit and even otherwisle the suit OS No. 100/ 1983 was got dismissed on"--22;v]. as such present suit is barred ul"He--«"would submit that in the suit ::written statement had been filed by '4'» defeI:d'antsl.A:'1.to}; 5 contending the said suit was barred by and the deceased Kazi Abdul Khuddus had also _ written statement contending that the plaintiff '~-.ll3oa7rd cannot set up title once again in itself which goes to show that plea of resjudicata had already been raised and as such defendants in the present suit cannot be permitted to air"-25-
raise the plea that principles of resjudicata is inapplilcable. He would also contend that records of the clearly go to show that suit schedule ownership of Abdul Khuddus "Pitrarjitha" (Ancestors). would that present suit is barredby construcitive resjudicat,a. In support of his Sl1bIT1iS$'fIOl1S the following judgments:
"L01 (1) AIR 1.20190' (2) AIR 1 Q' (3) 11977) p 1 (4) Aiii so ._f(E) (29015) é"s'cc.44166 ' jtei A11; 454 if A 202 (f3)" (i:2:OOV6) 142 PLR 734 ILR 1999 KAR 1264 (10) AIR 1995 so 1795
11. In reply Sri C.S. Prasanna Kumar learned Counsel for plaintiff would contend that while considering the issue of A' i7e::5Ǥ -26- resjudicata, no other issue either Order XXIII Order 11 Rule 2 can be gone into-'since saineds: alifinio C Section 11 of Code of Civil Procedure.' three suits referred to by the ci'e_fe._ridar1ts has n;oltVV,:cu.lniinatedb:C' in final adjudication vis--a--vis. title: interest of the Wakf Board with _to'l.fisuit.sciieduple property and a suit which has been riot constitute resjudicata. O11'lyg:.gVp:pZin the; issue is framed, adjudicated it would constitute as resjudicataandiriotllciitliejrwise. Coinlpromise recorded can be termed part and it does not declare anyone to begthe ow_nAe._r' in the said decree there is no
--ie;;press'.:.refiisal of 'a.d_ec.i"ee in favour of Kazi Abdul Khuddus 'eA:2¥ip1_anation (V) is not all applicable. On these grounds he lfs»e_el~§s'Vfor answering the substantial questions of law inl.llavour"of the appellant. if r Having heard the learned Advocates appearing for
--flthelgiparties and on perusal of the lower Court records, and ll".,,_l_l4judgments cited at the bar I proceed to answer the substantial question of law formulated in the following IYIBHHBI' . é§(/ -27- BRIEF BACKGROUND OF THE CASE:
13. The suit in question i.e., OS 149/98_.uh:as by "The Jamia Masjid" initially on the file ' 9.
Tumkur, which came to be nurnberedv Thereafter, it was transferred» A.Co__urt_lof 'Mt1'i1'si:ff and JMFC, Gubbi and it up/as 62/ 1989.
Subsequently. it was of Civil Judge (Sr. Dn.) T 149/ 1998 i.e., present nun1l)'er:_<«._V has been sought for is as 11nldC--rA::"j;
a) The 'state is the owner with posselggilon of-v.the,_ item as stated in the body the plaiiitiand. thus the plaintiff is the owner pos.session as representative of the wakf 1' the defendants to deliver vacant llposscession of the plaint schedule property to the ~ :.__plai'ntiff.
aaa) For the future mense profits by directing an enquiry as to such mense profits under order 20 Rule 12 of CPC.
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(b) Restrain the defendants from interfering with the plaintiffs peaceful possession enjoyment of the suit item by means of:
permanent injunction and
c) For costs and such otherfrelief f Court deems fit to grant to the"--plainti.ff'Aun'der the circumstances of the-'case.
The suit schedule:~..p:Ioperty: the plaint is as follows: A 'l V' V Sy. Hobli, measuring 2 Acres for non--agricultural purposes in the suit land bounded . the land of late Papanna and sons
- Fgvésllt .1 the land of B.K. Abdul Aziz : B.H.Road and 2 'South by : Madanakatte waste-- weir halla, masonry drain
14. In the said suit i.e., O.S.No.l49/98 defendants 1 to 4 filed the written statement on 19.11.1984 and defendant M, -29- Nos.5 to 9 Le. wife and children of late Khaji AbduljKh'uid--dus had filed their written statement on defendants have specifically barred by principles of resjudicataliin and decree passed in OS 'confirine'd' No.5 10/ 1954 and judgment-"" passed in OS:748/1968, and soughtliforl present suit on the said their additional written state:nentdii'l'e3d_ reiterated their earlier contentiem of suit on the ground of resjudicalta. it V it H V i l De'fen'dantsi'2,Siand 4 filed written statement on the lltrlansferred to Civil Judge (Sr. Dn.), \liVhe'ifeu'nde.r_l the.plea with regard to resjudicata was raised in par..algrarp~h_ and 22 of their written statement. It reads as _. .. .fj;-f.u'nder:
"6f It is submitted that the suit schedule property was the subject~matter of the O.S.No.92/50-51 filed by the members of the mosque known as 'Jamayat Masjid' in which the Vendor of these defendants was also a party. In the said suit, it was declared that the suit schedule property is the personal property of 3"/r
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referred to supra filed one more written '3s_taten1lent= 3.1 1.2003 by completely taking a frorn T. one earlier taken and supported of also sought for possession of froin the plaintiff on his behalf of' defendants 5 to8. 4 3 V 2
17. On the parties. Trial Court has herein below:
(1)W'h"e't-,he;r the ''plaintiff proves that suit property is wakf'pro.perty;,?"'~.,.._ -- I (2) VVhether. thedefendants 1 to 4 prove that suit property 'wa"s.l'the'*-personal property of Khazi Abdul. Kliu u's?l ' "
(I3)Wrhethe1'A.the plaintiff proves his lawful 1:3_Qssvession'o*vc~r the suit property? =._V(4)VVhether the plaintiff proves that interference " _ s. byptlae defendants?
.(_5) Wh'et_her the defendants 1 to 4 prove that tiiefisuit is hit by the principles of resjudicata?
(6)"'W_11iether the defendants 1 to 4 prove that , I 4_ suit is barred by limitation'? v __(7,') Whether the defendants l to 4 prove that court 'A fee paid is not proper?
(8) Whether the plaintiff is entitled to declaration and injunction?
(9) Alternatively whether the plaintiff is entitled for possession'? / AV,
432. Issue Nos?) 8: 6 was ordered to be treated pHr'el_i'min'ary issues and accordingly same was taken up fo_r":eonlsid'>erja7tigori by the Trial Court. After cor_1s1d__e4ring.l"tl'ief;.arguments_ advanced by the respective learned 2 parties and also consideririgV:vp""t.he record as also the provision l 1 of Civil Procedure Code trial Colurt ownership and title regarding suit 'subject matter of consideration subject matter of adjtidicatiori and it held that a finding in these judgments by holding that suitschedule does not belong to the Masjid and belongs' Abdul Khuddus and as such, ownership of suit schedule property has be_en__gp.fii'ially__ settled by this Court in RA:5lO/1954 and . cons'equ'ently answered issue No.5 in the Affirmative and ,d1sm_.issed the suit. The Trial Court also considered as to g.iwhe;thler the judgment passed in OS No.92/50--5l as affirmed T ..in;RA:5lO/ l954 which was a Scheme suit where the present if defendants were not a party (legal heirs of Kazi Abdul Khuddus) would be binding on the plaintiff or not and held 6%,, -33- the same would be binding on the present of explanation IV to Section ll to C().C;l,€3,s()_f Court also noticed that suit against Khaji Abdul Khuddus by' favour plaintiff is seeking said suit plaintiff had relinquished schedule property. It also found No. 100/ 1983 had been filed C seeking perpetual injunction Khudtis and said suit also came tollble of a memo filed by the it held that present suit was barred by ata; S * Tl1elLowe_rA«Appellate Court on re--appreciation of after considering the rival contentions held a.::'1"'epresentatiVe suit filed under Section 92 of .V Codelflof vCiV'ilfPrc)cedure it would be binding on all those who u;i_ntelr'"ested in the suit and accordingly held that earlier rendered by the District; Court in OS No.92 / 50«5l would be binding on the present plaintiff and it would "lloperate as resjudicata. Contention raised by the plaintiffs that ownership was not directly and substantially in issue in k/, _ _ the earlier suit between the same parties was also negatived by the Lower Appellate Court and findings Trial Court came to be affirmed and appe.al*~ be dismissed. ~
19. In order to adjudicate questions of law formulat/ecigherein be necessary to extract S€=')j['lO11'~A"l:"l".'l(:)f of "Civil Procedure which reads as under:
''11, Resjuclicatafi' --.N'o1jCVo.urt shall try any suit or, issue .;in. which the 'Inatfter directly and subst2inti.a*ll.y'V'"in, has» -been directly and substaritivavliynv in _.issue* in ajforrner suit between the sain.e5.parifies,"orbetween parties under whom they or Vany'=-_yo'fr _tlier'n--._ claim, litigating under the same «title, competent to try such subs"equent"suit orjthe suit in which such issue has subseqiiently raised, and has been ..«.{heard and finally decided by such Court.
E.x13l_anation I - The expression "former suit" shall A"'--..rdenot;e._ afsuit which has been decided prior to the suit question whether or not it was instituted C' prior thereto.
it '*~._Explai'1ation 11 ~ For the purposes of this section, _,-the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation Ill « The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. 4(//"
-35"
Explanation IV ~ Any matter which might andv.o_u.gl:.t to have been made ground defence or at_ta.ckV._ such former suit shall be deemed to have matter directly and substantially in issue inV"=suCh--f suit. ' '" " " ' Explanation V -- Any relief clairned. in ''the_ which is not expressly granted.by_ the decree, ..sl1.a'll,7 for the purposes of this,section,'.be' deemed to have been refused. ' V' ' " S Explanation Vl -- Where pers-one-..'Vlitiga'te_bonafide in respect of a public 'riglit or of private rightivclaimed in common for themselv-esi.ya;t1d'*--others, all persons interested in such right sha:l1,,~fo"r purposes of this sectiongbe dee'med.,"to"cl'a,_in1 'under the persons so litigating."g,.__Z" "
[Exp1anatioi:V'Vll.. Q"-The"pitoyisions of this section shall ap1i>'.1,37"to_a pr'oc'eeding for the execution of a decree' reffereii'ees in _th'iVs section to any suit. issue .'orVV'forrner shall be construed as references, --resApec't.iyle»ly,-~ to a proceeding for the execution of"'t_he decree, question arising in such pr.oVceedi'ng_" and °.a" former proceeding for the execution of V-that decree.
Explanration VIII ~ An issue heard and finally "dec'ided_'by' a court of limited jurisdiction, competent de:'ci.de.,lsvu"ch issue, shall operate as res judicata 'A in a subsequent suit, notwithstanding that such "c-ou:.ft.of"'limited jurisdiction was not competent to _ try such subsequent suit or the suit in which such as has been subsequently raised].
20. In the book "RES JUDICATA" (Second Edition) by V V uVSpencer--Bower and Turner it has been held as under:
&r/E
-35i
1. In English jurisprudence as res judicata;
that is to say a final judicial decision pron'o.unc'ed' . by a judicial tribunal having. zco:rnp.et_ent""
jurisdiction over the cause or "mat't§er'in'»lit'i~gation';..j and over the parties thereto, disposes once" and; for all of the matters decidedyy, so that they C~§iI'1£10lE:
afterwards be raised for reditigation~.be'tw*eeri' the same parties or their privi,e.s._A"'The_, effect: of jsvuch a decision is two~fold'__."a, . _ _ Parties estopped from javerring contrary
2. In the first place,...th'e j'udipci'al'.decision estops or precludes 'any; party' t,o"5the ' litigation from disputi11g,:-. any. other =party'"thereto, in any later liitigai;i.ori','7-._the--jj*-correcth,es--s of the earlier decision'iVi,n"---law and=fa"ct; _lThey:§same issue cannot be 'between them, and this principle ext,'v:j:r1d_s- to *all».. _llTi?1l'l,'€3'I'nSv-. of law and fact which the judgment, -- pr order necessarily establisjhed as .-- the legal foundation or ju_stiiication of ti'1e""conc1usion reached by the Court. V '- T1'ansit»vi.iAn rem' judicatam _ 3.. irrthe second place, by virtue of the decision
-.i'th'e~..rightfor~"cause of action set up in the suit is 'extinguished, merging in the judgment which is "'pron'oun'ced. Transit in rem judicatam. The _ result is that no further claim may be made upon a' .. _the'~same cause of action in any subsequent V "proceedings between the same parties or their privies.
21. Any party who is desirous of setting up plea of res '-yr..,__4l4;'judicata by way of estoppel, whether he is relying on such plea of res judicata as a bar to his opponent's claim, or as Q/, -37- the foundation of his own, and who has tal':¥ei'i,. the preliminary steps required in order to qualify that purpose, must establish all the constituent"__eleiI1ents estoppel of this description, as liincliclatedglin the 7 general proposition that is to say, t'h_ei"burdenv_rA is on of establishing (except as to ar1vv:l"'*rof Hrnay expressly or inipliedly,'adniitt'e'd)n.:'each_ and""ev'ery of the following:
(i)
(ii)
(iv), Iif) thatl«_,t;,he5a1legedljudicial decision was what in law is?dee'n1ed5such*;._vp V " _ , ' that '*th'ejipart'ict1}ar, judicial decision relied upon in fa'?:t'pr'onoL111ced, as alleged; (111)) t.hatl"71';h.e"'< judicial f tribunal pronouncing the y,decision.":_*had,__l"*c,ompetent jurisdiction in that behralfj' A V i that the judicial decision was final "that the judicial decision was, or involved, a determination of the same question as that _, wsought to be controverted in the litigation in _"»..,wh"ieh_j.the estoppel is raised;
gthat; the parties to the judicial decision, or their .- ~p_r'i.--vies, were the same persons as the parties to the proceeding in which the estoppel is raised, or f v _. "their privies, or that the decision was conclusive
22. in rern.
The principle of Resjudicata is founded on public «policy to prevent multifariousness of legal proceedings M
-38_ between the same parties. This doctrine is :_tw.Q factors namely;
(1) Judicial decisions has to reach finality end in conclusiveness f"resulting' termination of disputes, and') . ° i
(ii) A citizen, an individ__"'al or a litigant should:
not be driven to undergo mu'ltiplicatican of litigation.
23. Thus, it woul'd.4_._n«ot the cause of the justice but would also prevent 'ifijorn re--opening the matters which ;h'éi$;r:v1.1"eac.he::l~fin'alitvI=»_Kleeping in mind the above def'ii1it5i.(_)11fiqrtit of the judgments of 1 i Shankar.Sitara1:nSontakke and another vs. a ' 'V Bala'lr.rishnaV'Sitaram Sontakke and others 93- _The obvious effect of this finding is that '«the_"~-plaintiff is barred by the principle of if»--.jresju_dicata' from regitating the question in 'thegpresent suit. It is well settled that a ~c_oi.1sent decree is binding upon the H parties thereto as a decree passed by 'inviturri. The compromise having been found to be Vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata'.
2 (1994)2SCC14 Sulochana Amma vs. Narayanannair 4/ <39"
The Law Commission in its report recommended to remove the anomaly andh bring within its fold the conclusiveness"--of--«_j'F_' an issue in a former suit decided S _,_ court, be it either of limited pecuniary' jurisdiction of of special jurisdjc.ti_o'r1,V'l.il§e_ insolvency court, probate.' court,"H.land[';
acquisition court, Rent Cont.roj,ler_. .Reven.ur~;
Tribunal, etc. No doubt'--.main'"bo'dVV«.
Section 11 was not arrien'ded,a,»'yet.__the'; expression "the '-v.,_"court. of, limited jurisdiction" in Explanation Vlllvis wide enough tO, ~.,inclL:d'e" f?i "gcourt whose jurisdiction subjec't.._'»..,to,_ pecuniary limitation and other7'cogn"atc,expressions analogous thereto} The-relfore,"Section 11 is to be*r_e'a.d in cornb«in'ation and harmony wit_h3_ E:'_><'p1_vanat,ion \/_IIIf.--j' 'l'he result that wf*)ulg,i.I"Vilo'\'/'vi bis'-{ft-hat..Vlian-order or an issue __p_wh'ich*l'1ad ariselri directly and substantially between '7fthe_ 'pjartiesvllor their privies and decided"=-filnally by' a competent court or E'-.tri.bunal,*':_'~thoug»h..--~ of limited or special ju_risdic'ti_on, = includes pecuniary jurisd1ct.ion,*.wi'1l operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such court of =lim_ited or special jurisdiction was not a t'_i*-..con1fpe,itent court to try the subsequent ' sf'u.it;:'=' AIR 1981 SC 2198 Gulam Abbas and others vs. State of UP. and others "Now the rule of res judicata as indicated in S.1l of the Code of Civil Procedure has no doubt some technical aspects, for instance, the rule of constructive res judicata may be said to be technical; but the basis on which 4/ _4Q_ the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that finalityb.
should attach to the binding pronounced by Courts of corré_pet'enjt. -5 "
jurisdiction, and it is also in the.__pujb~1ic interest that individuals gshou'ld'v'--nfot 'bej vexed twice over withflthel"-s»aIr.1e -;'l:i_r'1d_ of'' litigation.'' Reference 'in jthis conrn_ecti'o:n._ was made by the. Court to the_jfa'mous--4 decision in the"_'leadinAg- Di1c'hes1s«--v...Hof Kingston's case (2""s;h.ith 18"
Edn. 644-645). '*.Laws5 of England (3rd 1_Edyn.Vo1._1b--~par"a_357 at p. 185) and Corpus '*Juris_ "p._743). In Gulabchand Ch'otal.al :Parikh"_<v_'; State of Bombay {nowllGt1jvaraty}«,:'e»(1965) SCR 547 ;
(AIRS 19.65 SCZ i"ll53)_V'the......t]uestion was wh'et'h_eii_..'after_,__th_e disrnissal of a writ petition on" m_erits_ afterlgfull contest by the 'E:/':£)1.~1<l_I'1.:"_.VV{lhd€.F'~....1Krt. 226 of the Cons't.itt1tiori-.a'-subsequent suit raising the same »e.clai_rning discharge from the 'liabyility same ground was en.tertain_abl_e not and this Court held ' 'V _ that _ "on ' general principles of I__g'rrespondentjudicata the decision of the High Court on the Writ Petition operated as _ xjudicata barring the subsequent suit :°bVetw_'ee"n the same parties with respect to th"_e_?'same matter. On a review of entire f case law on the subject, including Privy V ";Council decisions, this Court (at page 574 Of SCR) : (at p.1l67 Of AIR 1965 SC 1153), observed thus:--
"As a result of the above discussion, we are of opinion that the provisions of Section 11, C.P.C are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general I _42_ substantially in issue. It may or may be.. It is possible that it was "directl.y*a_ri--d""._ substantially" in issue and it may*"als'e. is ' possible that it was only collate'ral.ly' '=oi' _ V' incidentally in issue, depending facts of the case. The'"q--uest;ionVarises as .. to what is the test for decidjjing i"n_to--_which., f category a case falls'? Gne testis. ,that_if_. the issue was ,"'necess'ary" to 'decidegd it for adjudicating--._o'n the Vprinpcipal, issue and was decidedfiit would have Vgto be treated as .j'dire.c'tl'y. and-v_substantially" in issue and-._if-- it is c--lea"r.__t»hatt the judgment was in fact jbasewdg' upo~r1f,that decision, then it would "be--.re.s judicata in a latter case (-Mulla,:p';.lO-4)';7_j©nehas to examine _the;f'p1jaint., the _written"'staternent, the issues'and--.t§he'judgivnenlt to find out if the niatter was directly and substantially inn .is,sue'i:'{lsh'Vvei' Singh iv. Sarwan Singh (AIR 1965_fsc-..948)-- -and Syed Mohd. Salie 1 ._ La-bba':_i._V;«..__M.ohd. Hanifa (1976) 4 sec *7v80": l9;76 SC 1569. We are of the *v_i'ew_tha't the above summary in Mulla is a aat$'§1E'e'le° d'h2§dlrEe'1yt to another "principle of caution referred to by Mulla (p;--.105):
fV7"'lt is not to be, assumed that matter in I 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." a'/ -43- 5 AIR 2011 SC 9 Alka Gupta V. Narend.er»VKumarH
9. This Court Bhoora Lal(A1R 1964 so 'l__8li.(_)) held-; = 4 "In order that a "-'plea Hof bar .=L11"4l..C.l§3l'.9 O.2,R.2(3), Civil Proczeldure 'C_odef.= should succeed the defendantwho raises_t_he_5plea must make ou't._(l) that thesecond suit was in respect of l"'the..s*an*l,e} caulsellof action as that on which th-e_pr'eV=Ifou~s_suit was based; (2) that in respect of A.t"n_at cause of action the plaintiff was entitle'd--."to____rrlore than one re_}i~cf:.4(E3)V._'_fh21t;' bei.ng--.."t;h'us entitled to more than {one reli,4e"f.l.'iVt.hle**plaintiff without leave ..l.obtairne'd:;,froinllthe C--o.urt'l omitted to sue for the*relief'i.for "w_hich-- the second suit had been filefdill this analysis it would be "seen 'thatjrthe.__ defendant would have to e's«tab,lish._ pijin1a.i'ily and to start with, the _preci.se*cause of action upon which the _ 'previous.s_uiii was filed for unless there is :7°iden_tity between the cause of action on 'vv._l'wbhich--. the earlier suit was filed and that on if :"whic'h.-v'the claim in the latter suit is based there would be no scope for the application of the bar."
V Unless the defendant pleads the bar under Order 2, Rule 2 of the Code and an issue is framed focussing the parties on that bar to the suit, obviously the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based Vs -44- on a different cause of action. In this ca,gse,.g the respondent did not contend that the was barred by Order 2, Rule 2 of the.._C_od'elj; No issue was framed as to Wh€th€lT"l'.h€'A'S1.ll'llE. -- was barred by Order 2, Rule 2 of the 'Code. C But the High Court (both the' trial 'bench anldg appellate bench) have erroneously"assurned that a plea of res jiidicataiwouldriricludel_"'a_':is plea of bar under;C)rder;*~y2;'-- Rulev7?2, of the Code. Res judicata__r'el_ates"to the '-,pl'J1lfl'l£~il'lTS duty to put forth all tl1.el'groL1nd-spof 'attach in support of his claim-,--------wher"eas Order Rule 2 of the Code "requires th__ev._p'l«aintiff to claim all reliefs flowing from' thelfisame cause of action in a single--,su_it..g '*l'he*~V.'two pleas are different V-and§_'one".will include the other. The i__disl£n'issallyof_ the 'suit bywthe High Court Ll}'lltll€l1_"'--.V.C"Jl1"Cl._(_"I' '~2;«.._Vru1e'*_2._:of_ the Code. in the absence of anyllp.leal by the defendant and in "the.A"absence'"of*-ari 'issue in that behalf, is u I] sliyistainacbleyy. ~ V 'II. Thel;c2ii1sa_e'"ofaction for the second suit being completely different from the cause of action for the first suit, the bar under Order lg Rule-V2__of the Code was not attracted. V
-l Resjudicata means a thing _"'«._adjlu.di'eated' that is an issue that is finally "~.§e:t1e'd by judicial decision. The Code deals V. .witlil resjudicata in section 11, relevant "pportion of which is extracted below a {excluding Explanations I to VH1):
"11. Resjudicata--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 av/.-46-
be deemed to have been a matter directly and substantially in issue in such suit.
principle of constructive resjudicata eniergefs, from Explanation IV when reacd""'witah" _ Explanation 111 both of which explainacthel = concept of "matter directly and Sub-stfanltially in issue".
15. Explanation III 'lthlat is directly and substantially in issue--; vvheri it is alleged by one-._"party "and lder1..i_ed~~ or admitted (expressly _impliedly)' by the other. Explanationl---*lV. " 'provides l 'th--a.t..--vvhere any matter which 5_mighlt"..an_d«.ought to have been made a ground, detei'1ce--or attack in the former su.it.,._even if it"gWa's_--- not actually set u_p~as--~a gjfound: of attack or defence, shall be_Vdeei51'1ed.Vanc1_reg_ar.ded'"'as having been const_ructiv_ely-.;j--.._in__ _ directly and subVst~y~ai'i_tially '--in"CtheV"ear:E§ier suit. Therefore, "evAenii.tho:i~1ghl"afparticular ground of defence or I actually taken in the earlier s«u'it,°if i't_w'.as capable of being taken in the "earlier. s'u.it, it became a bar in regard _ to"~the said Visstie being taken in the second _. V rsuit l'1I1"Vl€WVOf the principle of constructive re--sjL1dicat'a';' Constructive resjudicata deals _V uwith, grounds of attach and defence which have been raised, but not raised, "Whereas Order 2, Rule 2 of the Code relates .~ ~t_oj.1"e1iefs which ought to have been claimed . on the same cause of action but not claimed.
"The principle underlying Explanation IV to Section 11 becomes clear from Greenhalgh v. Mallard (1947 (2) All ER 257) thus:
"....it would be accurate to say that resjudicata for this purpose is not confined to the issues which the court is actually asked to decide. but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could 4/ -47- have been raised that it would be an ;
of the process of the court to allow proceeding to be started in respect ;.
(Emphasis supplied) In Direct Recruit Class~-lI ., Officers' Association V. Sytateof;lviahalrasiitvra f (1990 (2) sec 715) : [AIR '1.9'90 so --1_,6o7 1991 AIR sow 22251, a constitution; Bench of this Court reite-rated the 'p._ri'nci'ple"' of constructive resjudicata .after'"r._efe'rrin}g to Forward ConVs'trxuctio"n' Co'; v} Prabhatle Mandal (1986 (1) scc--9..1'joo) : (AIR "1.986~SC 391) thus:
"an adjudicationisvcof1cl--'t1sivejand final not only as to. the actual_r'nfatter determined but as to" evieiry .other'"'n1att.er 'which the parties m1jghf ~_ar1.d1;Voug_ht" to 'have litigated and have had, decided.'as'~.1'n_cidiental to or essentially «""ConAn'ecte'd.; with. subject matter of the litiga1l:ioVn.V_ and«._e'very matter coming into the :V"~_pleg_itimate""purview of the original action both in l('€Sp€Ctjl'0_f matters of claim and defence,'''._ ' ' "
In this case the High Court has not stated ifiwhapt waslthe ground of attack that plaintiff- 'ap=p_e'l1ant ought to have raised in the first ' had failed to raise, which she raised 'infjthe second suit, to attract the principle of _ v constructive resjudicata.
IV. A suit cannot be dismissed without trial H merely because the court feels dissatisfied with the conduct of the plaintiff.
16. Code of Civil Procedure is nothing but an exhaustive compilation--cum~enu... one line is missing in xerox copy submitted by advocate here with reference to a proceeding in a court of law. The entire object of the Code is to ensure that an adjudication V -48- court of opportunities at is conducted by a appropriate stages.
law vvith appropriate A civil proceeding governed..__by."th.e' Code will have to be proceeded__-with"..a--n:d"»..._ll. decided in accordance with law"-._anld'r. thef provisions of the Code, an.d_not_--on'"t:h.e.xvhiins of the court. There are no_lshvort--e'ut__s:'--in__the_ ll trial of suits, unless theypaiteprovided by A civil suit has to; be decided afi:e,rAframi.ngr issues and trial permitting the pai'tie'sj'to...lead evidence on the issues, "except~i_n"c-ases: where the Code or any other law 'makes 'anyeyxeeption or provides any'~.exe_mption_.
24. The p.ray:er_ suits namely OS No.92 /5o~51,_ .743 /51968 lan1d__1OQ,'ij1,983'are as under:
os:92.t/50-5.1 y _osl;'743/ 1968 management of _ tn e.
_ Jamia. .l1§./plaszid, Gubbi X_managem_en.t ,o'f~, its and I33T0I'5'?1."U€53°'»--.V - '
(b) 'A yprirecuyngp the .defend'ant=[ to 'V render proper accounts in _ "respect of " andother funds that income ahe'_has'l received for ..__l['the E institution and by ,_4'fr~om its properties;
_ "and
(c) Granting such further or other reliefs as the court A OS2100/1983
(a) Settlinga s-cheme" Fqrl" declaring that (a) Fgr a per- fOY the "»plrlOp€Il . the . Emit PF0P€TlY manent injunction '-- constitute Wakf;
""(b")'lFor possession of the suit property;
(c) For past and future mesne profits to be enquired under Order XX Rule 12 Code of Civil Procedure:
(d) Granting costs of the suit; and
(e) for such other reliefs as the Hon'b1e Court deems fit in the circumstances of the case.
restraining the defendants, their agents, servants or anybody on their behalf from interfering with the plaintiffs peaceful possession and enjoyment of the schedule land and from alienating the scheduled land to any person either by sale, mortgage etc., and;
(b) for costs and such other reliefs 4/ 449- as th€j:"1'10fIji~'bIe: com deems' fit. to" .gi~:;ri:: in the V "- inte're_s 'I: ' "
may deem fit to grant.
J'_ust1'c'ee.TjV » It is to be noted that inptwo suiteslabove 92 /50-51 and 748/68 KhaZi'e«e:.:AbdtiVl '*«Ktidrfi.us"r_has been arrayed as the first defendppaiityandl 109 1/'8'3"his son has been arrayed as 18' 50-51 has been filed for settling in respect of Jamia / 1968 has been filed by through its secretary and of the District Wakf Committee '*--:7Qr* rellief lot' permanent injunction in respect of _ same_property."%. l\:'o.100/1983 has been filed by the of llllakfs. The property involved in all the three su£tfs,_dVis;.Al.i'-same i.e., Survey No.2 of Gubbi, Kasaba measiuring' acres 4 guntas which is also the property plaint: schedule in OS No.149/1998. It is to be 1' that in os No.92 /5051 and os No.748/1968, Khazi Kuddus has filed the written statement contending _l:."that it is his individual property and Masjid has no right, title or interest over the same. In OS 92/ 50-51 for settling Gk -51- issue would be barred by res judicata and if in the negative there cannot be any bar to pi'o_:cee_d. C' subsequent suit. Now let me exa'm»ine«th«e if judgments relied upon by learned for'pllaintiffz-lbw.alll* 1 AIR 1952 SC 143 t V V' ' t Pragdasji Guru "vs. Ishwarlalbhai l\larsibli'a1'a11d"others '
10. A suit und-e_rjS_.9_2,;_C.ivi1_'l?.Cl _ is a suit of a special nature 'wh-ich' __pres.up_poses the existence of a-'public=tr.ust7_of'"'religious or charit.ab].e"_'character. suit can proceed onlvon t:he._V_al.legation__th'at there is a breach of such _'t.i*ustl'*or 4thfa,t"'directions from the Court are "r1Ve'ce'é:»saryx 'for the__ administration thereof, andtAitv5.mu§{tpraylfor one/for other of the reliefs that are.'specifically'mentioned in the section. It is only"when_"these conditions are fulfilled that" the _ s11it.pl'has got to be brought in conformity with" the provision of S. 92,Civil PC. A's..was_observed by the Privy Council in ' §»-.''A.bdi1r Rahillv. Md. Barkat Ali 55 Ind. App. 96 _ suit for a declaration that certain ' .._prope~rty appertains to a religious trust may lie un:aer the general law but is outside the scope V_vo'f.S~'.92, Civil PC. In the case before us, the , " prayers made in the plaint are undoubteldy '»appropriate to the terms of 8.92 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 4/ -54- was dismissed by High Court. In this the Hon'ble Apex Court held that relief praying that properties in suit are trust p'rop'erties d;oes"b.not'--Vcon1e under any of the clauses (a) to (h) enumerated' under S;e'c.tbion 92 of CPC and accordingly modifiyed the declreel":.of"'the trial' court as affirmed by the lligh Co.iirt., the said suit, a declaration ofqtltle for which is impermissible under clau'se:..[a) 92 of C.P.C.
However in such relief of declaration defence set-up by Kazi Abdul property it was declared by' Court that suit schedule property _vdoes"~n_ot.Vbelonglto Masjid and it belongs to Kazi Alln"t-hat view of the matter, said judgment llwould the aid of plaintiff.
AIR 'V1967 so 1044 2 ff Bishwanath and another vs. Sri. Thakur Radha Ballabhji and others
7. It is settled law that to invoke S. 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court. is necessary A/C -55- in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditiontswisi not satisfied, the suit falls outside the scope o--f'thlje, said section. A suit by an idol for a declaratio'n'V'-of _ its title to property and for possession of the - 2 from the defendant, who is in possessionlithereof under a void alienation, is not oneto-f the "relie'fs«' found in S.92 of the Code of C'ivil:_Pr.c§cedurel."' a suit for declaration that a property belongs to wak ' trust is held to fall outside the scope of 89792 'of the Code of civil Procedure. That"a suitfor'"declaration that a property belongs to____a"»vvtru_tst is held to fall outside the scope.'of_ S92 lofjth"e._Codel'iof Civil Procedure by the Privy .Couricf.l infAbdeur Rahim V. Abu Mohamed Barkat'7 A1;",'*55 .'I~n.d'>.:VVAp~p 96: (AIR 1928 PC 16)._'and by"th:.sf Court in .Pr»agdasji Guru Bhagwanda"sji1;3}'. lshvvarlalbha.i'=Narsibhai, 1952 SCR 513t:~ut1R'li._1952,99 =..143],wl.lOIl the ground that a relief for Cl,etalarationffist' not} one of the reliefs enL1r_ne.ra_ted_ in7§..92»._of__t'nle'R-Code of Civil Procedure. So too, for"thepsame're_ason a suit for a declaration that7-certain propleertliees"'belong to a trust and for possession thereof f1"o__n"i* the alienee has also been held to be not ctovererjfby the provisions of S92 of the ~ Code of" Civil Procedure: See Mukhda l\_2'lanr1_ud.as Baira_gi«'v. Chagan Kisan Bhawasar, ILR ,(i'957)f Beth 809: (AIR 1959 bom 491). Other A ' decisvioiisa have reached the same result on a . 'd_iffe1*e:rtt ground, namely that such a suit is one for enforcement of a private right. It was held that a"=--su-__it' by an idol as a juristic person against persons who interfered unlawfully with the he property of the idol was a suit for enforcement of its , private right and was, therefore not a suit to which 5.92 of the Code of Civil Pro edure applied: See (Darshan Lal v. Shibji Maharaj Birajman, ILR 45 All 2 215: (AIR 1923 All 120); and Mahavrao Anand rao v. Shri Omkareshvar Ghat, 31 Born LR 192: (AIR 1929 Bom 153). The present suit is filed by the idol for possession of its property from the person who is in illegal possession thereof and, therefore, (9 -55- it is a suit by the idol to enforce its private right. The suit also is for a declaration of the plainti.ff__s title and for possession thereof and is, therefor_e;_ not a suit for one of the reliefs mentioned in S';92- the said Code and, therefore, the said secti_Ci'n"'i's..'_not' a bar to its maintainability. A H
26. In this matter suit by an iclol..i'orte.a 'declaratioxi of ' its title to property and for defendant who was in ;possesysVi:o:n:__uI}C1ef'~gt:alienation was sought for and as such prayer is alien to section __of was held that there is 119 :f\«"toVg\l:"y:ubsequent suit for declarati,on--.» previous suit namely o.s.92/t5o--5 residents of Gubbi on behalf of the "Ma'sjid in a representative capacity ~"'~agairis5t. Abdu.1.._.Khuddus as the sole defendant. The :filed for settling the scheme and for proper managementlof Jamia Masjid, and its properties. The sole 'd,efendanit':.therein i.e., Khazi Abdul Khuddus raised a plea suit properties are his self acquired properties and as the trial court based on the rival contentions framed as «Tmany as eight issues and for purposes of considering and answering the substantial question of law formulated in this We
-57f appeal, issue No.1 framed therein would be sufficiefn<tg."and same reads as under: V "1. Do the schedule properties belonglA"t.o'J;amia"'f Mosque at Gubbi as alleged inethep pl._aint'E"'i e' V * and said issue came to be adjudicated a11d"ansyv'éi1=eti1vfby the said court as under:
"7. The suit schedule first' item wet land bearing survey No..4.l9 mc'as.u'r-in'g..5 acres. 3Vguntas situate in Gubbi Am'anil§ere.v. i~n'».cross--examination the defendant says: _e_"'l's-have _not. produced the Governmentgrant o.f..s_uvit'item The suit first item, I do, not-.cla§;im._, -belongs to the mosque".
Incidentially;1thj.s,admissi_on-Valso'"'p1'oVes that the defendants d--0eS'3:1ot'---(:lai'1n 'lj_h"e_ mosque as his. The defenda.1t"'-s'fi:ears_ that the Government gave him survey 'Nos.2 (schedule items 2 and 3) to as -Kh'a.zi._V4and'vi.that' the mosque has nothing to do with .these He then says that the suit fourthfl item' purchased by him from Governmentbut that he has sold this land to one Céubbi Chandrappa about eight years ago. He says . "t.h'at._'-the site ofthe shops (suit fifth item) belongs to W.,him a,nd"~that his father got the shops construct _ is._t'he original inam title deed granted in r A "favourfof 'Gulam Mohammad, is the grandfather of
-the .-defendant. This shows that a dry land Ineasuring 3 acres and 26 guntas was granted as A inamto the Khazi. Ext..'\/ll is the certified copy of A 'the inam Register. This confirms the grant of the "--..inlam under Ext.IV. The plaintiffs have not produced anything to show that the suit items 2 and 3 were granted or acquired for the mosque. It must therefore be held that these two items are Khazi inam granted personally to the ancestors of the defendant and that they do not form part of properties of the mosque. With regard to the suit fourth item the evidence of the -58- defendant is that he purchased it from Government and that he has sold that land to "
Chandrappa about 8 years ago.
examination he says that the GoverninenvtdhaveT7 if taken over the suit first time their pos--se.ss.io'n: and u that the suit fourth item wavsnoit.gi'*Ien.toVhim--fin lieu of acquired land. The suit fifthi:tem'c.onsists_ 5 or 6 shops are also claimed by the defendant. if contention is that the site of the f'shop'V'b'el.Q_;1ggs_V§ to him and that his father b'u.il'tv--ithe sh-ops, :';Ad'mittedly the site of the shops belongs to the «mosquie. No satisfactoiy eViden"ce_ is produfcede-.by the"de'fendant to show that the sho.ps were Abyghis father. In cross~eXamination he. states' father built these shopsvout of"'ti1e:'boi'roowedv_ money. There is no tangible"eyiden=ee _as.~'to~.thef-persons from whom the money' 'borrowed pr that the debt was dischar3ged:;4"'_e. The the side of the plain1;iffs"V.that;,__the._4'shops.._were built out of public funds is'~:nore7';reliab.le. The defendant admits that he has 'In.ortgaged there-e'of the shops to one Gubbi Chandr'app'a.._ "Bfut'ithe"n1ain question in the present case is ewhether thesefshops belonged to the mosque or to the defendant personally. In as much as the gd'efend_ar1t haSV.___fta.i1€d to establish that his father V "built"th"e_shops out of his private funds and since adm_itte'dlyv the site belongs to the mosque, it must that these shops are the property of the 'mosque:
and 9,jX)QQQQ<x>Q(x}Q<xX
10. in his written statement the defendant claimed is .«__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. These two items cannot therefore be considered as belonging to the mosque. It shall however be open for the trustees to be appointed to take such steps as they may deem fit if they consider that in respect of those two items (items 2 and 3) the defendant has not satisfied the terms of V/, -59- the grant. In the Code of 1877 section W539"~tl1e"-« words used were '21 direct interest'. In the code it is sufficient if the suit is filed by 'atleastll twoj persons having an interest in the tI.lL'1S't.;"v lI1"24l~./, Calcutta 418 persons entitled "t:oy_ wor;shi"p._ in"'a temple were found to possess._su:fc'h..an'»i_ntelrest.:"'~--..lni(_' 50 Madras 721 it is obserVed'.__tha_t if th;el'pe'rsonst V suing have an interest 'in the. ti'ust'j_ not necessaiy that they shouvlidlhave been.?pei=sonally effected by an act done by__thev_person sues. It must therefore be held that plaintiffs have an interest in bringing the suit". _ _ (Emphasis "supplied
27. Thu_s,'Wis'sue:=._ rega;rd'i'n:gil':.l'th.e_.l:ownership of the property has? court and after that Abdul Khuddus is the absolute' said property as extracted hereinabove. ln.fa'ct7this Judgment and Decree which was appeal this court in R.A.510/1954 also and it was held as follows:
result is that this appeal is allowed in " In substitution of the decree made by the Court below. we direct that the learned District Judge will now settle a scheme for the due administration of the mosque and of its properties which are items 1 and 5. The suit in regard to items 2, 3 and 4 stands dismissed."
(Emphasis supplied by me) aka/A, -60-
28. The Hon'ble Supreme Court in the_4vfol-lolxving judgment has held that plaintiffs being representativffi public at large which is interested "in the"'t'1ustgwoulVd considered in the eye of law as an 'interesltedigpersoris-._to'<:he suit bigi all R. Venugcpal.a Naidu grid others vs. Venkatarayulu' l\laidu_lClv1aritiesl and others
9. The_'l'egal p'olsi'tio¥n emerges is that a suit o'f"the"'Codev.isV-- a suit of special , 'riat¢ur.e_g.';for ti1eV'pro'-tecltion» of Public rights in the V__Pu'.bl,ic Trusts} and 'charities. The suit is
-------- .'fu.ndaimen'!;ally o'n----vb.ehalf of the entire body of _ persons whovare interested in the trust. It is C' ' for_l'tlie vindilcation of public rights. The _ ' beneficiari_es._>of''the trust, which may consist of "'~.public__ at 'large, may choose two or more persons amongst themselves for the purpose of filin-gua' suit under S92 of the Code and the A _ suit--title in that event would show only their _'p,4'"n_ames as plaintiffs. Can we say that the persons whose names are on the suit~title are yllfthe only parties to the suit? The answer 'V "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 law to be parties to the suit. A suit under S92 of the Code is thus a representative suit and as such binds not only the parties named in the suit--title but all those who are interested in the trust. It is for that reason that explanation VI to Section 1 l of the Code constructively bars by resjudicata the suit and judgment binds not only lthee.
- 63 _ case, question of title having been in issue in earlierfhsuit as discussed hereinabove it has to be answere.d_'v.._in.j' ,the affirmative and as such it has to be held 'suit C question is barred by resjudicata.
30. Learned counsel._:ap_pearing V Prasanna Kumar would tyhlelljudgnient of the trial court which decidedlthe: at paragraph 10, it was l1eld.::p:th_at right was established and it is only a Section 11 Code of Civil Pro:c'edii_re . He contends that question of title could not have'v-.bAe--esn'decided in the said suit. When a :3-uii~l. is filed"**fo'r the maintenance of the property of before ordering for the scheme being settled aifrivejslat a satisfaction or conclusion as to whether K"-'~.__li:»he property referred to therein belongs to the trust or T 'anyone else is having a claim over the said property. Under clause (c) and (cc) of Section 92 of Code of Civil Procedure, " V power is available to court to order for vesting any property in a Trustee or directing a Trustee or a person who has been Q/i _ _ removed as a Trustee to deliver possession of any property in his possession to the person entitled to the poss'e_ss'ion of such property and as such the court adjudi(:'atinlg:' issue would delve upon the title set»~u.p' ~ _ While adjudicating Such a claim in c_o1irt--:Qf competent jurisdiction has comeyto a"co1iclu.sion"'~that Kazi' Abdul Khuddus is the owner and title vests with him as supra. This judgment and of to be affirmed by this court whereunder the Judgment" be modified and held that item' _.schedule property is also not establishedlto be_the7._pro'pert4y of the Mosque. Thus, the ll"Claim:'ll"of:_--theAJamia~~---~Masjid over items 2, 3, and 4 stood District Judge was directed by this Court to settle Vthelsczhenie for due administration of the Mosque and of itsAl3p1'operties which are items 1 & 5 only. It is this p:.l1te1ne_l§?o.2 which came to be adjudicated and decided by the District Judge and by this court and which is the suit " V schedule property in the present suit in question. $6', 5551
31. The Judgment and decree passed in by this court on 14.8.1959 has reached rightly obseived by the Lower Appe,llate..4yCfou--rt{,'that 9 would also bind the plaintiff even if flitglwere judgment (AIR 1996 SC judgmentllirieported in AIR 1974 SC 2141 learned counsel appearing for plaintiff to u/s.92 is a suit of special n jLidgm'en.t_:rende1'ed in the said suit would riot th:e'V~present suit is liable to be rejectf3d'it)'rl»l.1.lf1e in the said suit, it has been held» of Code of Civil Procedure to remedy infringementfiolfiLiindividual right or to vindicate .-v..privateiriVg1itis the scope of Sec.92 of Code of Civil ":Pro:cedure.<.lnfthe instant case the proposition is in converse nlamely; of Gubbi have filed a scheme suit for settling scheme in favour of the Masjid and its properties not claiming any right unto themselves and as such, the e.sa'i_d'judgme1it would not come to the rescue of appellants.
32. It was next contended by Sri Prasanna Kumar that in the year 1965 Khaji Abdul Khudus has dedicated the disputed land in the year 1965 and same having been W, -66- notified as Wakf property by the Wakf Boa1"d',:---- suit was not barred by resjudicata,_ .sin_ce t_'nel1*e" no contest» by by the defendants about; the d.edi,ca~tion».._ 1 contention examined with r'eg'aJ:d to the pleadlingshavailable' on record, it would emerge in the year 1965 there is no as to why plaintiff was silent till clearly goes to show that t1'1e_\§l al§;1f:113oa;i*d "aware of the fact about the earlier 'settlement of the Trust 5 only, Wakf Board did not pL1rsu'eJit.--sclaimA:_j(;x}e'1'.:Ar(:<rri'aining property which includes suit schedtxlel ._pr'op'erty, obviously being aware of earlier Ifl'j'uClgInen-i--..in'~QS Noe;e92/50,51 affirmed in R.A.No.510/1954 effect on the Board. No where in the plaint it is stated Khuddus dedicated the property to it-Juamia as Mosque property. In fact, the legal heirs of have sold the suit schedule property to the _V under three sale deeds dated 20.4.1983 and after it 'V.co:itending in the written statement filed on 17.10.1985 that «suit in question is barred by resjudicata they cannot now withdraw the said plea.
-67-
33. The Hon'ble Supreme Court; in the Ghouse Sayab and Others Vs. Mohd.
and Others reported in AIR it decree passed in the suit u / s.;92 Code of Civj1--"-Procedurei in 1961 liaving not been qtiestioned' by all these years defendants CaHf1i)t':«. of the decree, whereunder had been over ruled in_ would be also of benefit to Apex Court in the case of _N.arayana Nayar, (1994) 2 SCC 14 whereunder of explanation VIII to Sec.l1 of Code" of Civiljl Procedure came to be considered and C 1. answveredf held asfollows:
' V _ "T_h'e words xxx xxx xxx explanation VIII " to«c*Lill'~out its scope and ambit it must; be read ' .__alon.g "wjth sec. 11, to find the purpose it seeks to "serve. " "The Law commission in its report recommended to remove the anomaly and bring 9' within its fold the conclusiveness of an issue in a * former suit decided by any court, be it either of limited pecuniary jurisdiction or of special jurisdiction, like insolvency court, probate court, land acquisition court, Rent Controller, Revenue Tribunal, etc. No doubt main body of Section 11 was not amended, yet the expression "the court of limited jurisdiction" in Explanation VIII is wide enough to include a court whose jurisdiction is #68.
subject to pecuniary limitation and other cognate expressions analogous thereto. Therefore", Section ll is to be read in combination ajldgi, harmony with Explanation VIII. The resultmthatifl would flow is that an order or an issue.lwhich._ -1- had arisen directly and substantially between i the parties or their privies ayn;l»deci.d'ed-finally' _ by a competent court or t:ribui1al,'*4.th:o11gh_ of" . limited or special jurisdiction. 1Which».inclt1de's-..A pecuniary jurisdiction,_ will operate" "as; resjudicata in a 's_ubsequ'er1t . 01*' proceeding, notwithstafiditig the 'fact flthat such court of limited or _spee_ial juri.sdiction was not a competent _ vc"ourt'~-_to try the subsequent suit." ' * I In conclusion.1'iVg_'«it;1ii~~:iii';%é% if the scope of Explanaptioni order and decree of the court the scope of enlarging explanationiikflll wC~_L1l'd_iib~eiiV defeated and the decree of civil ll'eourvtslofp-.].:im.ited xpe'cu1c1iary jurisdiction shall stand excluded °a_n'dsuch._ai<toma]ous situation must be avoided. Thus, to keeipuathe 'litigation unending successive suits can be filed in courtnof limited jurisdiction and later on in a court of g l1.ighr_e_r.--' jurisdiction. litigating over the same issue which is the purpose of Sec.ll of Code of Civil Procedure. Thus " V Explanation VIII is to be read harmoniously and to clear any ambiguity surrounding it. In the instant case, it cannot be ck/t -59- held or construed that the suit OS adjudicated and decided was not by a COLl..I7l[.V_'l':G~fVv jurisdiction.
34. One another factor ret1"u:i_res_to_:Abevnoticed blyil this court is that the Wa-kf.Boa1'd 3,.:;;uit in OS No.748/1968 for declaring constitute Wakf and for IV suit ended in a compromise the parties which comp1*or;iise Order 23 Rule 1 Code of Civil Pro'cefd:11;e.~ .-advocates appearing for the respondentslS!7.l§"t:.t;l1sA'*P.lI):. Surana and Shanniughappa in chorlu--sl'w.ould._contelndla consent decree passed would act as upon the judgment of the Apex Court r€pbI"t_€d_'l-1'1 1991 SC 2234 paragraph 44. Order XXIII 1 of Civil Procedure refers to withdrawal of suit or ._lab_andlonn1ent of part of claim. Under sub rule 4(b) Code of C.'-vlil Procedure .if the plaintiff withdraws from a suit or part If of claim without permission referred to under sub rule (3), he would be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
The learned advocates for the respondents would contend V _ _ that in View of compromise petition filed under Order XXIII Rule I Code of Civil Procedure and withdrawing.jthe«f_cl--aim without: seeking leave to institute fresh suit it to abandonment of the claim and assuch the vprc;sent._lsui't._Vis ' C. I barred by resjudicata. Mr. Prasaniia 'Kumar'--hAa-s_c.or:t'ended that waiver, relinquishment. abaiidonment .or".Withd'r"awal or all acts of the parties which can' expplainledv-only after full fledged trial and in he has relied upon the jtidgmentf of "Court reported in AIR 201 1 held as under:
a.cI;?hisi?-;c'oui"tin Gluibux Singh xxx XXX by both«V._partie_s'.'..._The plaintiff should have an l'opportL1nit_V.Vtoceieiplain or demonstrate that the second suit"Was."'based on a different cause of action. V111 this 'case, the respondent did not .,c_3:pont.end that the suit was barred by Order 2 . V-Ruie. pf the""'Code. But the High Court (both the ntriai-, bench and appellate bench) have err_on_e<:>usly.. assumed that a plea of resjudicata "-would"_~inc:lude a plea of bar under Order 2 Rule 2 A._of the resjudicata relates to the plaintiffs duty to put forth all the grounds of attack in support of his claim, whereas Order 2, Rule 2 of It the Code requires the plaintiff to claim all reliefs * fiowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable." , iv"
.71.
In the above judgment it was noticed by _t-lie.
court that two suits had been for ' recovery of balance price agreed underan agreeniveiit; 'ofsalep and the second suit was for-.Vidffriendition accounts in pursuance of the dissolution «c.;f"'thn_e:'~fiVi'»:1.1 andit was noticed that dismissal of the suit 2 of the code in the absence of anyplea d'e.fendantTa;nd in the absence of an issue be un--sustainable and it has __be}__en plaintiff should have an oppoi'tii1:iityVfvto that second suit was based onza action. Applying the principles laid in the s"a.id" to the facts on hand when the ~"'Writtcjnastafternentxfiled.in the present suit (OS No. 149/1998) noticed that defendants 2, 3 and 4 have plea in paragraphs 6 and 22 that suit is hit of resjudicata as observed herein above. It also tovhbe noticed that defendants 5 to 9 filed written on l7. l0. l985 and have specifically raised a plea regard to resjudicata at paragraph 14 which reads as " -«funder:-72-
"14. The suit is barred by the resjudicata in View of the is No.748/68 on the file of , V No.92/50~5l on the file of Dist.
and RA Ne.5io/54 on the fi1e=.ot'*the t:ht;:nfH'tgh-i"r~ l' Court of Mysore, Bangalor.:e:I'*..yln fact? filed a suit on the file:y.otl"Mt:nsift,' for injunction and the suit This would go had been raised with regard pleagodf bar of subsequent suit under ndtldllpvleaded and as such, the Cluestitinvzof Or demonstrating that second suit was maintainaVblcA'--does not arise in the instant case. It tov_"lie inoticed "tha.t____plaintiff in the instant suit is seeking V"--_declarativori~tand decree that State Wakf Board is the owner the suit schedule property and in OS V t No.7218 /iV:<_9.68";fi1ed by the "The Mysore State Board of Wakf"
it 'has sought for declaration that suit property constitute for possession of the suit property. Said suit OS T --:'_4:"Noi748/l968 came to be compromised and relief of " declaration and possession sought for has been abandoned and/or not pursued. The said decree has remained un- V, -73- challenged and it is not the case of the plai'ntfiff decree was obtained by fraud, coercion, f_nisre"presentation'j and etc., In fact, the Hon'ble Supreme[Court_unyder"s'iInilar circumstances in the case Ofl._lB~§..frani"- 'v'..T' Union Bank of India reported 2234 has held as under: VA V _ .
"The consent 18.6.1984 remained Nonequestioned it. The appellant any doubtmas to its validity or geyn1v1ii1.ene;s§,_ it that the decree was rnisrepresentation or his couizslel. to enter into a compro:nis,eonlhisbehalf. Nevertheless, after he its Validity by means of This was an unsuccessful reason of delay, estoppel or and was rightly so held by the High Court.
'"-l«3fj;-v'~___Thus, it .w'o1.1ld clearly go to show a judgment obtained by i(':o_r1vs,en,t is intended to end the litigation between the parties as it would end by way of judgment resulting from the TV"..,___decision of the court which would be a Valid decree and constitute as resjudicata.
474-
35. In conclusion it has to be held that on corrlpa1*ison of the pleadings in the three suits it would issue raised in the present suit was_directly-andfsub'sta.nti.ally. _ in issue in those suits though the reliefs .s'ough't for"'njay*y'_ary in degree. One of the tests to is whether the principal issue and if so it has to be treated substantially" in issue. Whe1'i suchV.exerc_ise:.is= the plaints, written adjudicated and prayers sought re/jec:ted or abandoned from the earlier suit, it would emerge that the issue in the pr.es"ent_ lsuitllas also the prayer sought for in the present "directly and substantially" considered suits lllll H and not collaterally or incidentally.
Teclinicall"asVpeot}~1ike pecuniary jurisdiction or subject wise pconip-etenceislolllthe earlier forum to adjudicate the subject a grant appropriate reliefs in the suits filed :.st1bselc1'ue11tly would recede to back ground and it has to way for the application of general principles of " resjudicata. No individual can be vexed twice over the same kind of litigation and the general doctrine of resjudicata has 4'/.