THE JAMIA MASJID versus SRI K V RUDRAPPA (SINCE DEAD) BY LRS. & ORS. on 23 September 2021

SUPREME COURT REPORTS

[2021] 11 S.C.R.

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THE JAMIA MASJID

v.

SRI K V RUDRAPPA (SINCE DEAD) BY LRS. & ORS.

(Civil Appeal No. 10946 of 2014)

B

SEPTEMBER 23, 2021

[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATHAND HIMA KOHLI, JJ.]

Code of Civil Procedure, 1908 – s.11 – Res judicata –Appellant-Jama Masjid Gubbi instituted a suit through its presidentCseeking, inter alia, declaration that the State Wakf Board is theowner in possession of the suit property – The defendants (Nos. 2-4) raised the defence that the suit is barred by res judicata by virtueof decisions in three prior suits – It was stated in their writtenstatement that suit property was a personal property of ‘AK’,Dpredecessor of defendants (Nos. 5-9) and the claim of title of ‘AK’was adjudicated in the earlier suits – The trial Court framed theissue of res judicata as a preliminary issue and held that the suitwas barred by res judicata by virtue of suits instituted earlier –Appeal against the decree of the trial Court was dismissed by theDistrict Court – The High Court held that the suit was not barred byEres judicata and remanded the matter to the trial Court – In the SLPagainst the said judgment, the Supreme Court remanded the matterto the High Court – After remand, the High Court dismissed theappeal and held that the suit was barred by res judicata – On appeal,held: The first suit was instituted u/s.92 of CPC by five residents ofFthe town against ‘AK’, who was managing the mosque – The reliefsought, inter alia, was settling a scheme for administration andmanagement of properties of the said mosque – There was noadjudication on whether ‘AK’ had absolute title to the suit propertyand the matter in issue in the first suit was distinct from issues in theinstant suit – In the second suit the relief sought was a declarationGthat the property constitutes a wakf and a decree of possession ofthe suit property – The said suit was decreed on the basis of acompromised petition – The compromise was restricted to the issueof the erstwhile lessee handling over the possession of the suitproperty at the end of lease – The alleged claim of title of ‘AK’ wasHnot adjudicated – The third suit was instituted by the Karnataka Board of wakfs for injunction simpliciter – It was withdrawn afterthe suit out of which the instant proceeding arises was filed forseeking a substantive declaration and an injunction – Noadjudication on the rights of the parties was made in the third suit– The High Court committed error in applying the principle of resjudicata – Therefore, the judgment and order of the High Court isset aside.

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Allowing the appeal, the Court

HELD: 1. In order to attract the principles of res judicata,the following ingredients must be fulfilled:

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(i) The matter must have been directly and substantiallyin issue in the former suit;

(ii) The matter must be heard and finally decided by theCourt in the former suit;

(iii) The former suit must be between the same parties orbetween parties under whom they or any of themclaim, litigating under the same title; and D

(iv) The Court in which the former suit was instituted iscompetent to try the subsequent suit or the suit inwhich such issue has been subsequently raised. [ParaE17][694-D-F]

Res Judicata as a Preliminary issue

2. It was contended that any determination of the applicationof the principle of res judicata can only be made after evidence isadduced pursuant to a full-fledged trial. The court whileundertaking an analysis of the applicability of the plea of resjudicata determines first, if the requirements of section 11 CPCare fulfilled; and if this is answered in the affirmative, it will haveto be determined if there has been any material alteration in lawor facts since the first suit was decreed as a result of which theprinciple of res judicata would be inapplicable. This Court unableto accept the submission of the appellants that res judicata cannever be decided as a preliminary issue. In certain cases,particularly when a mixed question of law or fact is raised, theissue should await a full-fledged trial after evidence is adduced.

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AIn the present case, a determination of the components of resjudicata turns on the pleadings and judgments in the earlier suitswhich have been brought on the record. The issue has beenargued on that basis before the Trial court and the first appellatecourt; followed by two rounds of proceedings before the HighCourt (the second following upon an order of remand by this courtBon the ground that all parties were not heard). All the documentarymaterial necessary to decide the issue is before the court andarguments have been addressed by the contesting sides fully onthat basis. [Para 23][699-G-H; 700-A-C]

The Plea of Res judicata and the three previous suitsC

I. First Suit /OS 92/1950-51

3. OS 92/1950-51 was instituted by five residents of Gubbitown against the ‘AK’ who was managing the mosque. The suitwas instituted under the provisions of Section 92 CPC to settle aDscheme for the management of the mosque since ‘AK’ was allegedto be misappropriating the funds accruing to the mosque and wastrying to set up his own title to the property of the mosque.[Para 25][700-D-E]

4. Bhagwandasji lays down the following principles on theEambit of a representative suit under section 92 CPC:

(i) The plaintiff can only seek reliefs that fall under any ofthe clauses in section 92 CPC. A declaration that the suit propertybelongs to the trust, does not fall under the scope of any of thereliefs enumerated in section 92 CPC and is outside the scope ofFthe provision; (ii) Merely because the defendant denies the titleof the trust over the suit property, the jurisdiction of the courtcannot be ousted; (iii) When the title of the trust is contested, adetermination of the title of the suit property is necessary for thepurpose of adjudication on the final relief, and thus it can be madeancillary to the main relief if the plaintiff is entitled to the reliefGsought under Section 92 CPC; and (iv) If the plaintiff is not entitledto the relief sought, then in that case no determination onthe title of the suit property can be made since it wouldbe inconsequential to the final decision in the suit. [Para 33][704-F-H; 705-A-B]

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4.1 On applying the principles evolved in Bhagwandasji tothe facts of the case, the relief sought in the first suit under section92 CPC was for determination of a scheme of management of themosque. A determination of the title of the suit property withrespect to the mosque was ancillary to the main relief, underSection 92 of the CPC. [Para 33][705-C-D]

5. The twin test that is used for the identification of whetheran issue has been conclusively decided in the previous suit is:

A. Whether the adjudication of the issue was ‘necessary’for deciding on the principle issue (‘the necessity test’); and

B. Whether the judgment in the suit is based upon thedecision on that issue (‘the essentiality test’).

On applying the necessity test to the case at hand, it has tobe identified if the decision on the principle issue of framing ascheme for the administration of the Mosque could not have beenarrived at without adjudication of the title of the suit. The plaintcontains two distinct allegations against the defendant, ‘AK’: (i)that he was misappropriating the funds of the mosque; and (ii)that he was setting up his own title to the suit property. Thedefendant contested that the suit property belonged to him.Therefore, since the title was contested, it was necessary thatthe court in the first suit determine if the suit property belongedto the mosque to adjudicate on the scheme of administration ofthe mosque. The contention that the trial court could not haveadjudicated on the title of the suit property in a representativesuit has already been addressed in the preceding section relyingon the case of Bhagwandasji. On applying the essentiality test tothe judgment in the first suit, it has to be identified if the finaldecision rendered by the court in that case would be altered ifthe issue on title was determined otherwise. Whether the schemefor the administration of the mosque would also cover the suitproperty was necessary for adjudication in the former suit. In thenext section we shall explore what precisely was the nature andimport of the adjudication in the former suit. [Para 40][710-E-H;711-A-C]

6. The adjudication on the suit property was focussedaround whether it belonged to the mosque. Though the suit A

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Aproperty was prima facie declared to not belong to the mosque, itwould not as a corollary mean that it was the personal property ofKhazi ‘AK’ over which he possessed an absolute or inalienableright, particularly in view of his deposition that the property wasgiven as an inam to his forefathers for their services a Khazi.There was no discussion on whether the suit property was aBpersonal inam or an inam attached to the office; there was noadjudication in the earlier suit on the terms of the grant. Thus,no adjudication on the absolute title over the suit property wasrendered in the former suit. On reading together, the findingswhich have been arrived at in paragraph 7 and paragraph 10 ofCthe judgment of the trial court in the first suit, it is evident thatthe District Judge did not enter a conclusive finding that item 2of the schedule to that suit (which corresponds to the suit scheduleproperty in the present case) was the personal property of ‘AK’.In fact, the use of the expression “prima facie right” in paragraph10 extracted above clearly indicates that there was no conclusiveDfinding in the judgment of the District Judge. The District Judgealso noted it would be open to the trust to take steps as theydeem fit in respect of item 2 and item 3 of the Schedule in thatsuit, if the defendant had not fulfilled the terms specified in thegrant. Thus the finding on issue No 1 that schedule items 1, 4Eand 15 belong to the mosque must specifically be read in thecontext of what has been stated above. From the above analysis,it becomes clear that there was no adjudication in the earliersuit that ‘AK’ had an absolute title to the suit property.[Para 42][711-G-H; 712-A-D]

F7. Thus, the suit that gives rise to the instant proceedingsis not barred by the first suit for the following reasons:

(i) The court in the first suit was not ousted from determiningif the suit property belonged to the mosque while settling ascheme for administration in a suit under Section 92 CPC; (ii)GThe suit under Section 92 is of a representative character andthe decree would bind all persons interested in the Trust property;(iii) There was a ‘prima facie’ finding in the former suit that thesuit property belonged to ‘AK’; and (iv) In the context of a suitfor settling a scheme of administration, the issue in the first suitwas whether the suit property belonged to Jamia Masjid. ThereH

was no adjudication or finding that Khazi ‘AK’ had absolute titleover the property, particularly in view of the deposition of ‘AK’that the property was given as a Khazi Inam, coupled with theobservation of the court that he had a ‘prima facie’ right over theproperty. Therefore, the alleged claim of title of ‘AK’ notadjudicated. Thus, the matters which were in issue before thecourt in the first suit and the instant proceedings are distinct.[Para 43][712-E-H; 713-A-B]

II. Second Suit/OS 748 of 1968

8. The suit was instituted by the Mysore State Board ofWakf. ‘AK’ and HSG were impleaded as the first and seconddefendants to the suit. The plaint contained the followingaverments: (i) The suit property is a wakf property dedicated asa ‘Khazi Service Inam’. People who perform the service of a Khaziare entitled to remain in possession of the service inam and torealise the usufruct after paying the wakf fund; (ii) ‘AK’ wasentitled to remain in possession by virtue of his office as Khazi,apart from which he had no right, title or interest;(iii) The suitproperty had been notified as a wakf pursuant to enquiry. AGazette notification had been issued on 10 July 1965 notifyingthe suit property as a wakf property; (iv) The cause of actionarose on 10 July 1965 when the illegal and forcible occupation ofthe suit property by the second defendant came to the knowledgeof the plaintiff; and (v) The reliefs sought were: A declarationthat the property constitutes a wakf and a decree for possessionof the suit property. [Para 44][713-B-G]

9. In Pulavarthi Venkata Subba Rao v. Valluri JagannadhaRao and Sunderabai v. Devaji Shankar Deshpande, this Court heldthat since a compromise decree is not a decision of the court, theprinciple of res judicata cannot be made applicable. However, itwas held that the compromise decree may in effect create estoppelby conduct between the parties, and the parties by estoppel willbe prevented from initiating a subsequent suit. Since it is theprinciple of estoppel by conduct that will bar the institution of thesubsequent suit, it is pertinent that we refer to the compromisedecree to determine if any compromise was arrived at betweenthe parties on the title to the suit property. On a perusal of the AB

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Acompromise deed, it is evident that a compromise was reachedonly on the issue of possession and lease. When no compromisewas arrived at between the parties on the title to the suit property,then no estoppel by conduct could also be inferred. Additionally,the counsel for the respondent referred to Order 23 Rule 3A tocontend that a subsequent suit is barred when the previous suitBis dismissed through a compromise decree. However, theprovision would not be applicable to the case at hand since itonly bars the challenge to a compromise decree on the groundthat it is unlawful. Therefore, the disposal of the second suit inview of the compromise would not bar the filing of the suit out ofCwhich the instant proceedings arise. [Para 46][715-A-B, F-H;716-A]

III. Third Suit/OS 100 of 1983

III. Third Suit/OS 100 of 1983

10. The third suit of 1983 instituted by the Karnataka Boardof Wakfs was a suit for injunction simpliciter. No question of titleDwas raised and none was adjudicated upon. As a matter of fact,the suit was instituted on the apprehension that the property waslikely to be alienated by the legal representatives of ‘AK’. Beforethe suit of 1983 was withdrawn, the suit out of which theseproceedings arise was instituted for seeking comprehensiveEreliefs in terms of a declaration of title and a permanent injunction.Therefore, the decision in the third suit does not bar the initiationof the suit out of which the instant proceeding arises. [Para49][716-E-G]

11. The High Court dismissed the second appeal holdingFthat the courts conclusively decided on the title to the suit propertyin the first suit (OS 92/1950-51) and that any subsequent suit onthe same issue of title would be barred by the principles of resjudicata. In view of the discussion above, this finding arrived atby the High Court is erroneous. While holding that the judgmentin the first suit has conclusively decided that the title over theGsuit property belongs to ‘AK’, the High Court has lost sight ofthe observations in paragraph 7 and 10 of the judgment of thetrial court. It has been specifically held there that the suit propertywas a Khazi service Inam and that ‘AK’ has a prima facie right tothe suit property. There was no adjudication to the effect thatH

‘AK’ had an absolute title to the suit property. Additionally, thedecision of the courts in the first suit was delivered before thesuit property was notified as a wakf property in view of NotificationNo. MWB 19(11) dated 6 July 1965. The principle of res judicatacan thus not be applied without taking into consideration thischanged circumstance. [Para 50][716-G-H; 717-A-C]

12. The High Court has committed an error in applying theprinciple of res judicata based on the judgment in the secondsuit. It was observed by the High Court that the second suit thatwas decreed in terms of the compromise was intended to put thelitigation to an end and would thus bar any subsequent suit onthe title to the suit property by virtue of the principle of resjudicata. For this purpose, reliance was placed on a two judgebench decision of this court in Byram Pestonji Gariwala where itwas held that a challenge to a consent decree six years later wasvitiated by reason of delay, estoppel, and res judicata. However,the High Court lost sight of the fact that the compromise deedwas entered into specifically with regard to the handing over ofpossession of the suit property by the lessee at the end of thelease and no compromise on the title to the suit property wasarrived at. [Para 51][717-C-E]

13. In view of the discussion, findings are summarisedbelow:

(i) Issues that arise in a subsequent suit may either bequestions of fact or of law or mixed questions of law and fact. Analteration in the circumstances after the decision in the first suit,will require a trial for the determination of the plea of res judicataif there arises a new fact which has to be proved. However, theplea of res judicata may in an appropriate case be determined asa preliminary issue when neither a disputed question of fact nor amixed question of law or fact has to be adjudicated for resolvingit;

(ii) While deciding on a scheme for administration in arepresentative suit filed under Section 92 of the CPC the courtmay, if the title is contested, have to decide if the property inrespect of which the scheme for administration and managementis sought belongs to the Trust; AB

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(iii) A suit under section 92 CPC is of a representativecharacter and all persons interested in the Trust would be boundby the judgment in the suit, and persons interested would bebarred by the principle of res judicata from instituting a subsequentsuit on the same or substantially the same issue; B

(iv) Since the first suit (OS 92 of 1950-51) was filed bymembers interested in the Jamia Masjid and the suit out of whichthe instant proceedings arise (OS 149 of 1998) was filed by thePresident of Jamia Masjid, the formulation in (iii) above issatisfied; C

(v) There was no adjudication in the first suit (OS 92 of1950-51) on whether ‘AK’ had absolute title to the suit property.There was only a prima facie determination that Items 2 and 3 ofthe schedule of properties to the first suit belonged to ‘AK’. Thematters substantially in issue in OS 92 of 1950-51, which was aDsuit for administration and management of trust properties andfor accounts, are distinct from the issues in the suit out of whichthe instant proceedings arise. Therefore, OS 149 of 1998 is notbarred by res judicata in view of the decision in the first suit;

(vi) While a compromise decree in a prior suit will not barEa subsequent suit by virtue of res judicata, the subsequent suitcould be barred by estoppel by conduct. However, neither thecompromise petition dated 27 October 1969 nor the final decreein the second suit dated 27 October 1969 indicate that acompromise on the title to the suit property was arrived at. Thecompromise was restricted to the issue of the erstwhile lesseeFhanding over possession of the suit property at the end of thelease; and

(vii) The third suit (OS 100/1983) was a suit for an injunctionsimpliciter. The third suit was withdrawn after the suit out ofwhich the instant proceeding arises was filed for seeking aGsubstantive declaration and an injunction. No adjudication on therights of the parties was made in the third suit. [Para 52][717-F-H; 718-A-H; 719-A]

Mathura Prasad Bajoo Jaiswal v. Dossibai N.BJeejeebhoy (1970) 1 SCC 613 : [1970] 3 SCR 830;Mahant Pragdasji Guru Bhagwandasji v. PatelIshwarlalbhai Narsibhai AIR 1952 SC 143 : [1952]SCR 513; Raje Anandrao v. Shamrao (1961) 3 SCR930; Ahmad Adam Sait v. M E Makhri (1964) 2 SCR647; Shiromani Gurdwara Parbhandhak Committee v.Mahant Harnam Singh C. (Dead) M.N. Singh AIR 2003SC 3349; Sajjadanashin Syed MD B.E. Edr. (D) by Lrs.v. Musa Dadabhai Ummer (2000) 3 SCC 350 : [2000]1 SCR 1095; Sunderabai v. Devaji Shankar DeshpandeAIR 1954 SC 82 – relied on.

Provash Chandra Daluj v. Biswanath Banerhee AIR1989 SC 1834; Byram Pestonji Gariwala v. Union Bankof India AIR 1991 SC 2234; Sarguja Transport Servicev. S.T.A.T Gwalior AIR 1987 SC 88; R VenugopalaNaidu v. Venkatarayulu Naidu Charities AIR 1990 SC444; Sulochana Amma v. Narayanan Nair (1994) 2 SCC14:[1993] 2 Suppl. SCR 520; Syed Mohd. Salie Labbai(dead) by L.Rs v. Mohd. Hanifa (dead) by L.Rs. (1976)4 SCC 780 : [1976] 3 SCR 721; Alka Gupta v. NarenderKumar Gupta (2010) 10 SCC 141 : [2010] 11 SCR 756;Madhukar D Shende v. Tarabai Aba Shedage (2002) 2SCC 85 : [2002] 1 SCR 132; Ram Harakh v. HamidAhmed Khan & Ors., (1998) 7 SCC 484 : 1998 (9) JT227; Sushil Kumar Mehta v. Gobind Ram Bohra (1990)1 SCC 193 : [1989] 2 Suppl. SCR 149; Run BahadurSingh v. Lucho Koer, ILR (1885) 11 Cal 301; AsrarAhmed v. Durgah Committee AIR 1947 PC 1; GramPanchayat of Village Naulakha v. Ujagar Singh (2000)7 SCC 543:[2000] 3 Suppl.SCR 457; Vanagiri SriSelliamman Ayyanar Uthirasomasundareswarar Templev. Rajanga Asari AIR 1965 Mad 355; Nand Ram (Dead)Through Legal Representatives v. Jagdish Prasad(Dead) Through Legal Representatives (2020) 9 SCC393 : 2020 (4) JT 91; Pulavarthi Venkata Subba Raov. Valluri Jagannadha Rao AIR 1967 SC 591:[1964]SCR 310 – referred to.

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ACase Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No.10946of 2014.

From the Judgment and Order dated 23.01.2012 of the High Courtof Karnataka at Bangalore in R.S.A. No.2189 of 2007

EMs. V. Mohana, Sr. Adv., Gopal Singh, Abhishek Kaushik, RKothwal, M. Yogesh Kanna, Raja Rajeshwaran S., Advs. for theAppellant.

Basava Prabhu Patil, Sr. Adv., Balaji Srinivasan, Shanmukhappa,Ms. Shwetha Shanmukhappa, Prateek Yadav, Shahrukh Mohammed,FMs. Aakriti Priya, Ms. Garima Jain, Ms. Pallavi Sengupta, Ashok Mathur,Kumar Mihir, Advs. for the Respondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

IndexG

A. The Facts

B.Proceedings before the Courts

C.Proceedings before the High CourtHD. Submissions of the Parties E.The Analysis E.1Res Judicata as a Preliminary issue E.2The Plea of Res Judicata and the three previous suits E.2.1Determination of title in a Representative suit E.2.2Representative Suit and Res judicata E.2.3Conclusive decision and Res Judicata E.2.3.1 Similarity in issue and Res Judicata E.2.4Compromise decree and Res Judicata F.The Conclusion

1. A Single Judge of the High Court of Karnataka dismissed asecond appeal filed under Section 100 of the Code of Civil Procedure1908[1], affirming the decision of the Trial Court and the First AppellateCourt that the suit instituted by the appellant-plaintiff is barred by theprinciple of res judicata. The appellant moved this court in a SpecialLeave Petition to challenge the decision of the Single judge. Leave hasbeen granted on 8 December 2014.

A. The Facts

2. Described as the Jamia Masjid Gubbi in the cause title, theappellant instituted the suit[2 ]through its President for seeking the followingreliefs:

(i) A declaration that the State Wakf Board is the owner inpossession of the suit schedule property, being survey No.2 of Gubbi village admeasuring 2 acres and 4 guntas ofnon-agricultural land with a cinema building;

(ii) A decree for possession against the defendants;

(iii) An injunction to restrain the defendants from interferingwith the possession and enjoyment of the plaintiff;and

(iv) A decree for mesne profits.

3. The case of the plaintiff-appellant is as follows:

(i) The suit property is a ‘Khazi Service Inam’. Abdul Khuddus,the spouse of the fifth defendant and father of the sixth toninth defendants was the mutawalli who was managing the 1 “CPC”

2 O.S 149/1998

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Aproperty for and on behalf of the Wakf Board. AbdulKhuddus, was entitled to the usufruct of the property subjectto the condition precedent that he would perform his serviceas a Khazi or Mutawalli. During his lifetime he hadgiven uphis service as a Khazi upon being appointed by the GubbiMuslim Jamath as the Pesh Inam on a monthly salary of RsB30 for performing the Namaz (daily prayers); A

(ii) Upon the enactment of the Wakf Act 1954, which wasadopted by the then Mysore State in 1955, the AssistantCommissioner conducted a survey of Wakf Properties in1963. Abdul Khuddus gave a declaration to the Wakf BoardCfor the registration of thesuit schedule property as a wakf.A notice inviting objections for registration of the suitschedule property as a wakf property was issued. Noobjection to the registration of the suit schedule propertywas raised and eventually the property wasnotified as aDwakf property at serial No 136 of the Mysore Gazettenotification No. MWB 19(11) dated 6 July 1965;

(iii) Under section 6 of the Wakf Act 1954, if any dispute ariseson a property declared as a wakf property, a claim can beraised within one year of the publication of the notification.EThere is a prohibition on alienation under rule 5 of the WakfRules framed under the Wakf Act, 1965 unless approvedby a two-thirds majority of the Wakf Board;

(iv) A person by the name of H.S. Gururajarao and his brotherswere granted a lease over the schedule suit property on 8FDecember 1944 by the Muzrai officer to run a ‘cinematalkies’. A suit, OS 748/1968, was instituted by the WakfBoard against the Abdul Khuddus and H.S. Gururajaraoseeking possession of the suit property and a declarationthat the property constitutes a wakf. The suit wascompromised with Abdul Khuddus being permitted to collectGthe rent from the lessee (H S Gururajarao) on behalf of theBoard;

(v) After the death of Abdul Khuddus, defendants 6 to 9 tookpossession of the suit property. Allegationsofmismanagement of the suit property were made againstHthem. The Chairman, D.W.C Tumkur recommended that the suit property be directly managed by the Board undersection 43(A) of the Wakf Act 1954. Pursuant to therecommendation, the State Wakf Board passed an orderdated 6 April 1983 taking over the management; A

(vi) H.S. Gururajarao who was in possession of the suit scheduleproperty as a lessee, handed over possession of the cinemaBbuilding to the Wakf Board on 29 June 1983. Defendants 5to 9 however executed sale deeds in respect of the propertyin favour of Defendants 1 to 4. Any alienation by Defendants5 to 9 is void since the Board did not approve the transactionwith a two-thirds majority; and C

(vii) The cause of action arose on 16 April 1983 whenDefendants 1 to 4 together with other defendants interferedwith the possession of the plaintiff on the strength of thesale in their favour executed by Defendants 5 to 9.

4. In May 2010, Defendants 2 to 4 filed their written statementraising the defence that:

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(i) The suit is barred by res judicata: OS 92/1950-51[3 ]wasfiled by the members of the mosque known as JamayatMasjid in which Abdul Khuddus (the predecessor ofDefendants 5-9) was a party. In the said suit, the DistrictJudge by a judgment dated 31 March 1954 declared thesuit schedule property to be the personal property of AbdulKhuddus. Abdul Khuddus instituted an appeal before theHigh Court challenging a portion of the order of the DistrictJudge. The High Court upheld the judgment of the Districtjudge on 14 August 1959.Since the parties and the subjectmatter of the first suit and the present suit are the same,the suit instituted by the appellant is barred by res judicata; E

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(ii) The suit schedule property is not a Khazi Service Inam butwas the personal property of Abdul Khuddus and hissuccessors have rightfully sold it in favour of Defendants1-4; G

(iii) The suit schedule property was leased to one H.S GururajaRaoby Abdul Khuddus and not by the then Muzrai officer 3 “the first suit”

Aas contended by the plaintiff. From 1995, a lease wasgranted in favour of Sri K.V Rudrappa who was running atheatre in the name of ‘Channabasaveswara Talkies’. Afterthe death of Rudrappa, defendants 1-4 are running thetheatre after obtaining a licence from the District Magistrate; B(iv)OS 748/1968[4 ]was instituted by the Mysore Board of Wakfagainst Abdul Khuddus seeking a declaration that the suitproperty is a wakf and for possession of the suit property.However, the suit was decreed in terms of the compromisepetition filed by the parties and therefore, the Wakf Boardgave up its claim in respect of the suit schedule property.CThe subsequent suit is hit by the principle of res judicata;and

(v) OS 100/1983[5] was instituted by the Karnataka Board ofWakf seeking an injunction restraining the defendants (theheirs of Abdul Khuddus) from interfering in the peacefulDpossession of the suit property. This suit was withdrawn bythe plaintiff.

B. Proceedings before the Courts

5. The Trial Court took up two issues – issues 5 and 6 – relating toEres judicata and limitation as preliminary issues. By its judgment dated3 February 2006, the trial court held that the suit was not barred bylimitation. However, the court held that the suit was barred by res judicataby virtue of the decisions in the suits instituted earlier:

(i) O.S 92/1950-51 was filed by the members of the public ofFGubbi in their representative capacity by virtue of Section92 CPC. Abdul Khuddus contended that the suit scheduleproperty was his personal property. The first issue framedin the suit was whether ‘the schedule properties belongto the Jamia Mosque, Gubbi as alleged in the plaint’.GThe plaintiff was held to have failed to prove that two ofthe suit schedule properties (Sy. No. 2 and 3, of which SyNo. 2 is the suit schedule property in the instant proceedings)belongs to the Jamia Mosque. The High Court on second 4 ‘the second suit”

H5 “the third suit”

appeal[6] held that the properties in Sy No. 2, 3 and 4 do notbelong to the mosque. Thus, the issue with regard to theownership of the suit schedule property has reached finalityin view of the decision of the High Court of Karnatakawhich was not assailed before this court; A

(ii) A judgment in a representative suit is binding on all theBinterested parties in view of Explanation IV to Section 11CPC. Though the first suit was not filed by the Jamia Masjidin its individual capacity, it was filed by parties interested inthe administration of the mosque and thus all partiesinterested in the mosque are bound by the judgment even ifCthey were not impleaded as a party;

(iii) The judgment of the trial court cannot be nullified by anotification issued by the government declaring the suitproperty as a wakf property;

(iv) O.S 748/1968 filed by the plaintiff seeking a declarationthat the Wakf is the owner of the suit property ended in acompromise by which the Wakf Board has admitted thatAbdul Khuddus has the right to collect the rent from thelessee. Thus, the Wakf Board has relinquished its title overthe suit property; and D

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(v) O.S No. 100/1983 was filed seeking an injunction againstAbdul Khuddus. However, the suit was dismissed on 22November 1984 after a memo of withdrawal was filed bythe plaintiff’s counsel. Thus the Wakf Board has relinquishedrights over the suit property.

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6. An appeal against the decree of the Trial Court was dismissedby the 3[rd] Additional District Judge at Tumkur on 2 July 2007 for thefollowing reasons:

(i) The finding in O.S 92/1950 and by the High Court on appealwas not challenged by Abdul Khuddus. It was also notcontested that the title of a property cannot be determinedGin a representative suit filed under section 92 CPC;

(ii) A representative suit filed under section 92 CPC binds notonly the parties named in the suit but also those who areinterested in the suit. Therefore, a decision in a previous 6 R.A. 510/1954

Arepresentative suit will bind all interested parties even ifthey were not impleaded as a party to the suit;

(iii) The submission that the trial court had only prima faciefound Abdul Khuddus to possess title to the suit propertyand that hence, it was not conclusively held that he hadabsolute title, is erroneous. To determine if a scheme shouldbe framed for the maintenance of a trust, the court willhave to satisfy itself whether the property is owned by thetrust; B

(iv) The plaintiff has not specified when Abdul Khuddus madethe declaration for notifying the suit property as wakfCproperty. If the notification was made in 1963, there wasno reason for the Wakf Board to file the suit, as late as in1983;

(v) O.S. 748/1968 filed by the Wakf Board against AbdulKhuddus for a declaration that the suit property belongs toDthe Wakf Board ended in a compromise. The Wakf Boardhas waived its right over the suit property and such acompromise creates an estoppel (based on the decisions inProvash Chandra Daluj v. Biswanath Banerhee[7];Byram Pestonji Gariwala v. Union Bank of India[8]); and E(vi)O.S No. 100/1983 was filed by the Wakf Board for seekingan injunction against the defendants. The suit was dismissedby filing a Memo without seeking leave to file the instantsuit. The decision in Sarguja Transport Service v.S.T.A.T Gwalior[9 ]was relied upon.

F7. The High Court by its judgment and order dated 2 July 2008allowed a Regular Second Appeal and remanded the matter to the TrialCourt for disposal in accordance with law. The High Court held that:

(i) The present suit is not barred by res judicata since OS 92/1950-51 was instituted under Section 92 of the CPC forsettling a scheme. Para 10 of the judgment of the Trial CourtGnoted that the defendant has a prima facie right to the suitproperty and that if the terms of the grant have not beensatisfied by the defendant, the trustees can take steps.

7 AIR 1989 SC 1834

8 AIR 1991 SC 2234

H9 AIR 1987 SC 88

Therefore, the question of title was not conclusively decided.The issue that was substantially in issue in OS No 92/1950-51 is not in issue in the instant proceedings. The judgementof the High Court in appeal as well cannot be read to meanthat the suit schedule property belongs absolutely to AbdulKhuddus;

(ii) A suit under section 92 CPC is filed as a representative suitand is not a suit filed to vindicate the private right of anindividual;

(iii) The compromise decree in OS 748/1968 did not declarethe ownership of Abdul Khuddus, the predecessor- in-interest of Defendants 1 to 4. It only states that the seconddefendant would continue as the lessee of Abdul Khuddus;

(iv) The present suit was instituted on behalf of the State WakfBoard prior to the disposal of OS 100/1983 and was hencenot barred;and

(v) The nature of the relief sought in the instant proceeding isdifferent from the relief sought in OS 92/1950-51. JamiaMasjid was not the plaintiff in O.S No. 92/1950-51 and O.SNo. 748/1968.

C. Proceedings before the High Court

8. A Special Leave Petition[10] was instituted before this Court byDefendants 1 to 4. By a judgment dated 30 August 2010, this Courtremanded the proceedings back to the High Court on the ground that theHigh Court had heard only one of the defendant – caveators and that allthe defendants were not represented before the High Court. After remand,the High Court by its judgment dated 23 January 2012 dismissed theappeal for the following reasons:

(i) The ownership of the suit schedule property has beenconclusively decided in OS 92/1050-51 in favour of AbdulKhuddus;

(ii) The judgment in a representative suit under Section 92 CPCbinds the parties to the suit and those who are interested inthe Trust (R Venugopala Naidu v. Venkatarayulu NaiduCharities[11]); 10 SLP (C) No. 26047 of 2008

11 AIR 1990 SC 444

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A(iii)When a suit is filed for determination of a scheme foradministration of a Trust, the court must primarily be satisfiedthat the property belongs to the Trust. The court has thepower under Section 92(e) and (cc) of the CPC to orderdelivery of possession of the property to any person who isentitled to possession;B

(iv) If a declaration was made by Khazi Abdul Khuddusdeclaring the suit property as a Wakf property in 1965, thereis no explanation as to why the plaintiff was silent till thefiling of OS 100/1983; and

(v) An issue that was substantially decided by a competentCcourt of limited jurisdiction will operate as res judicata,though such court in view of its limited jurisdiction wouldnot be competent to try the subsequent suit (SulochanaAmma v. Narayanan Nair[12]).

9. The judgment obtained through a consent decree in OS 748/D1968 was intended to put the litigation to an end. It would thus operateas res judicata in the subsequent suits.

10. Leave was granted by this Court on 8 December 2014.

D. Submissions of the Parties

E11. We have heard Ms V Mohana, learned Senior Counselappearing on behalf of the appellant and Mr Basava Prabhu Patil, learnedSenior Counsel with Mr Balaji Srinivasan, learned Counsel for thecontesting respondents.

12. On behalf of the appellant, the following submissions havebeen urged:F

(i) OS 92/1950-51

oThe suit was instituted by Muslims in the localityinterested in the proper management of the mosque sinceAbdul Khuddus was trying to set up his own title to theGsuit property; oThe suit was not for a declaration of title to the suitproperty and the appellant was not a party to the suit. Itwas a suit seeking to set up a scheme for theadministration of the suit property; H12 (1994) 2 SCC 14

[DR. DHANANJAYA Y CHANDRACHUD, J.]

oThere was no final declaration that the suit property is aAprivate property belonging to Abdul Khuddus; and oIn a suit for settling a scheme under Section 92 of theCPC, the Court possessed limited jurisdiction and couldnot have issued declaratory relief.

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(ii) OS 748/1968

oThe basis of the suit was that Abdul Khuddus by virtueof his office as a khazi only has the right to the usufructand the suit was instituted as an unlawful constructionwas in place; C

oA compromise memo was filed in the suit stating thatthe second defendant would continue to remain as atenant for some time and would thereafter handoverpeaceful possession to Abdul Khuddus; oOn 27 October 1969, a compromise petition was filedby the parties under Order 23 Rule 1 CPC; D

oThe compromise decree neither concedes title of thesuit property to defendants nor does it create any newright in their favour; and oThe suit proceeded on the basis that Abdul KhuddusEwas only entitled to the usufruct and the decree basedon the compromise deed protected possession withoutany adjudication of title.

(iii) OS 100/1983

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oThe suit was instituted by the Karnataka Wakf Boardfor a permanent injunction, apprehending a sale at theinstance of the heirs of the Abdul Khuddus to defendants1-4; oThe appellant was not a party to the suit; G

oThe suit was dismissed without costs after the plaintifffiled a memo for dismissal; and oBefore the dismissal of the suit, the present suit whichis a comprehensive suit seeking declaration andpossession had been instituted.

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AIn view of the above position, it was urged that the ingredients forthe application of the doctrine of res judicata have not been fulfilled. Insummation, it was urged that:

(i) The issue of title to the suit schedule property has not beendecided in any of the three prior suits; B

(ii) In view of notification No. MWB 19(11) dated 6 July 1965the suit property was notified as wakf property;

(iii) A collateral finding does not demonstrate an adjudicationof title;

(iv) In the absence of a prior adjudication, the doctrine of resjudicata would not be attracted; C

(v) The notification of the suit schedule property as a wakfwaspursuant to a declaration dated 28 April 1963 executed byAbdul Khuddus for the general benefit of the community; D(vi)Once the property is constituted as a wakf, it would remainso in that character and no objection to the notification wasfiled either by Abdul Khuddus or by any person claimingthrough him; and

(vii) Without prejudice to the above submissions, the issue ofEres judicata raises mixed questions of law and fact and, inany event, ought to have been decided as a comprehensiveissue pursuant to a full-fledged trial.

13. Opposing the above submissions, Mr Basava Prabhu Patil,learned Senior Counsel submitted that:F

(i) In the first suit - 92/1950-51 - there was a specific findingthat the suit schedule property was the personal propertyof Abdul Khuddus. Thus, the court having conclusivelydecided on the title of the suit property, a subsequent suitraising the same issue is barred by the principles of resGjudicata;

(ii) In the second suit which was instituted by the State WakfBoard, there was a prayer for declaration and possession.A compromise having been arrived at on a portion of thereliefs claimed in the second suit (relating to possession),Hthis would necessarily amount to an abandonment of the other reliefs. Once a compromise is arrived at, Order 23Rule 3A bars the maintainability of a subsequent suit;

(iii) The third suit was for a permanent injunction againstalienation of the suit property. This suit was dismissed aswithdrawn; and

(iv) Jamia Masjid is seeking a declaration of the title on behalfof the Wakf Board. The Wakf Board is not a party to thesuit and its application for being impleaded has been rejected.

E. The Analysis

14. The rival submissions now fall for analysis.

-15. The primary issue is whether the suit - OS No. 149/1998[13 ]which was instituted by Jamia Masjid is barred by the principles of resjudicata. In order to analyse whether the doctrine of res judicataisattracted, it is necessary that we decide on the plea with respect to thethree prior suits:

(i) OS 92/1950-51;

(ii) OS 748/1968 and;

(iii) OS 100/1983.

16. Before analysing the three suits specifically, it is necessarythat we visit the jurisprudence on res judicata. Section 11 CPC statesas follows:

“11. Res Judicata: No Court shall try any suit or issue in whichthe matter directly and substantially in issue has been directly andsubstantially in issue in a former suit between the same parties, orbetween parties under whom they or any of them claim, litigatingunder the same title, in a Court competent to try such subsequentsuit or the suit in which such issue has been subsequently raised,and has been heard and finally decided by such Court.

[…]

Explanation IV.— Any matter which might and ought to havebeen made ground of defence or attack in such former suit shallbe deemed to have been a matter directly and substantially inissue in such suit.

13 The suit out of which the issue in present appeal arises is suit 96/1984 re-numberedas 162/1989 and 149/1998. For convenience we will refer to the suit as OS 149/1998.

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AExplanation V.— Any relief claimed in the plaint, which is notexpressly granted by the decree, shall for the purposes of thissection, be deemed to have been refused.Explanation VI.—Where persons litigate bona fide in respect of a public right or ofa private right claimed in common for themselves and others, allpersons interested in such right shall, for the purposes of thisBsection, be deemed to claim under the persons so litigating .

[…]

Explanation VIII.— An issue heard and finally decided by a Courtof limited jurisdiction, competent to decide such issue, shall operateCas res judicata in a subsequent suit, notwithstanding that suchCourt of limited jurisdiction was not competent to try suchsubsequent suit or the suit in which such issue has beensubsequently raised.]”

17. In order to attract the principles of res judicata, the followingDingredients must be fulfilled:

(i) The matter must have been directly and substantially in issuein the former suit;

(ii) The matter must be heard and finally decided by the Courtin the former suit;E

(iii) The former suit must be between the same parties orbetween parties under whom they or any of them claim,litigating under the same title; and

(iv) The Court in which the former suit was instituted iscompetent to try the subsequent suit or the suit in whichFsuch issue has been subsequently raised.

18. In Syed Mohd. Salie Labbai (dead) by L.Rsv. Mohd.Hanifa (dead) by L.Rs[14], Justice S Murtaza Ali speaking for a Benchof two judges observed that before a plea of res judicata can be giveneffect, the following conditions must be proved:G

“7…

“(1) that the litigating parties must be the same;

(2) that the subject-matter of the suit also must be identical; H14 (1976) 4 SCC 780

(3) that the matter must be finally decided between the parties;and A

(4) that the suit must be decided by a court of competentjurisdiction.”

The Court noted that “the best method” to decide the question ofres judicata is first to determine the case of the parties as they are putforward in their respective pleadings of their previous suits, and then tofind out as to what had been decided by the judgments which operate asres judicata. In that case, it was held that the judgment in the previoussuit was confined to two points:

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(i) The plaintiffs claimed certain rights for the performance ofceremonies in the properties and a share in the incomeaccruing to the mosque from the worshippers; and

(ii) A claim, insofar as the graveyard was concerned forreceiving pit fees for burials. Consequently, it was held thatDthe Trial court had not decided upon either the publiccharacter of the mosque or the mode and manner or theeffect of the dedication of the site for the purpose of themosque or the graveyard.

E.1 Res Judicata as a Preliminary issue

19. Before we undertake an analysis on the applicability of theprinciples of res judicata vis-à-vis the three suits that were initiatedwith regard to the suit property it is necessary to discuss the submissionof counsel for the appellant that res judicata, being a mixed question oflaw and facts ought not to have been decided as a preliminary issue bythe trial court. It was contended that any determination of the applicationof the principle of res judicata can only be made after evidence isadduced pursuant to a full-fledged trial. For this purpose, reliance wasplaced on the decision of a two judge bench of this court in Alka Guptav. Narender Kumar Gupta[15](“Alka Gupta”) authored by Justice RVRaveendran. In Alka Gupta, the trial court had dismissed the subsequentsuit on various preliminary grounds, one of which was that the filing ofthe subsequent suit stood barred by res judicata. However, onappeal,thetwo judge bench of this court held that the second suit was notbarred by res judicata:

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A“19. The learned Trial Bench passed the order on 13-3-2009 onthe preliminary issue (Issue 1) relating to res judicata. But thereis absolutely no discussion in the order of the learned SingleJudge in regard to the bar of res judicata except the followingobservation at the end of the order: “Of course it cannot be saidthat the present suit is barred by res judicata inasmuch as the saidBclaims were not decided in that case. But the principle ofconstructive res judicata is applicable.” This was not interferedby the Appellate Bench. Both proceeded on the basis that the suitwas not barred by res judicata, but barred by principle ofconstructive res judicata without assigning any reasons.

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20. Plea of res judicata is a restraint on the right of a plaintiff tohave an adjudication of his claim. The plea must be clearlyestablished, more particularly where the bar sought is onthe basis of constructive res judicata. The plaintiff who issought to be prevented by the bar of constructive resjudicata should have notice about the plea and have an D

opportunity to put forth his contentions against the same.In this case, there was no plea of constructive res judicata, norhad the appellant-plaintiff an opportunity to meet the case basedon such plea.

E[…]

26. In the instant case, the High Court has not stated what wasthe ground of attack that the appellant-plaintiff ought to have raisedin the first suit but had failed to raise, which she raised in thesecond suit, to attract the principle of constructive res judicata.The second suit is not barred by constructive res judicata.”

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20. The finding of the trial judge on the applicability of the principlesof res judicata was set aside on the ground that the plea was not clearlyestablished and the plaintiff was not given the opportunity to contest theGplea. Thus, in Alka Gupta (supra), this court set aside the decision ofthe High Court on the above ground.

21. Order 14 Rule 2 CPC states that if questions of fact and lawarise in the same suit, the court can dispose the case on the question oflaw alone if it relates to the following:

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“(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being inforce, and for that purpose may […]”

22. It has been held by this court that a determination of whetherresjudicata is attracted raises a mixed question of law and facts. InMadhukar D. Shende[16 ]and Ram Harakh[17], it was held that the pleaof res judicata was a mixed question of law and facts. In both thecases, the plea of res judicata was taken for the first time before thisCourt. Justice K. Ramaswamy writing for a three judge bench of thiscourt in Sushil Kumar Mehta v. Gobind Ram Bohra[18]held that theprinciple of res judicata cannot be fit into the pigeon hole of ‘mixedquestion of law and facts’ in every case. Rather, the plea of res judicatawould be a question of law or fact or a mixed question of both dependingon the issue that is claimed to have been previously decided. The courtwhile determining the applicability of the plea of res judicata woulddetermine if there has been any material alteration in the facts and lawapplicable:

“26. The doctrine of res judicata under Section 11 CPC is foundedon public policy. An issue of fact or law or mixed question of factand law, which are in issue in an earlier suit or might and ought tobe raised between the same parties or persons claiming underthem and was adjudicated or allowed uncontested becomes finaland binds the parties or persons claiming under them. Thus, thedecision of a competent court over the matter in issue may operateas res judicata in subsequent suit or proceedings or in otherproceedings between the same parties and those claiming underthem. But the question relating to the interpretation of a statutetouching the jurisdiction of a court unrelated to questions of factor law or mixed questions does not operate as res judicata evenbetween the parties or persons claiming under them. The reasonis obvious; a pure question of law unrelated to facts which are thebasis or foundation of a right, cannot be deemed to be a matter inissue. The principle of res judicata is a facet of procedure but not 16 Madhukar D Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85

17 Ram Harakh v. Hamid Ahmed Khan& Ors., (1998) 7 SCC 484

18 (1990) 1 SCC 193

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Aof substantive law. The decision on an issue of law founded onfact in issue would operate as res judicata. But when the law hassince the earlier decision been altered by a competent authorityor when the earlier decision declares a transaction to be validdespite prohibition by law it does not operate as res judicata. Thusa question of jurisdiction of a court or of a procedure or a pureBquestion of law unrelated to the right of the parties founded purelyon question of fact in the previous suit, is not res judicata in thesubsequent suit. A question relating to jurisdiction of a court orinterpretation of provisions of a statute cannot be deemed to havebeen finally determined by an erroneous decision of a court.CTherefore, the doctrine of res judicata does not apply to a case ofdecree of nullity. If the court inherently lacks jurisdiction consentcannot confer jurisdiction. Where certain statutory rights in awelfare legislation are created, the doctrine of waiver also doesnot apply to a case of decree where the court inherently lacksjurisdiction.”D

23. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.BJeejeebhoy[19], the application of the plaintiff in the Court of the CivilJudge for the determination of Standard Rent under Section 11 of theBombay Rents, Hotel and Lodging House Rates Control Act 1947wasdismissed on the ground that the statute did not apply to a case of openEland let for the construction of buildings. This decision was affirmed inappeal. However, in view of another decision of the Bombay High Courtwhich held that the statute would be applicable to leased land, the plaintifffiled a fresh proceeding in the Court of Small Causes. The Trial Courtand the High Court held that the subsequent suit was barred by resFjudicata. However, Justice J C Shah writing for a 3-judge bench heldthat the subsequent suit was not barred by res judicata:

“5. But the doctrine of res judicata belongs to the domain ofprocedure: it cannot be exalted to the status of a legislative directionbetween the parties so as to determine the question relating to theGinterpretation of enactment affecting the jurisdiction of a Courtfinally between them, even though no question of fact or mixedquestion of law and fact and relating to the right in dispute betweenthe parties has been determined thereby. A decision of a competentCourt on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be anissue of fact, an issue of law, or one of mixed law and fact.An issue of fact or an issue of mixed law and fact decidedby a competent Court is finally determined between theparties and cannot be re-opened between them in anotherproceeding. The previous decision on a matter in issue alone isres judicata: the reasons for the decision are not res judicata.

[…]

11. The matter in issue, if it is one purely of fact, decided inthe earlier proceeding by a competent Court must in asubsequent litigation between the same parties be regardedas finally decided and cannot be reopened. A mixed questionof law and fact determined in the earlier proceeding betweenthe same parties may not, for the same reason, be questionedin a subsequent proceeding between the same parties. But,where the decision is on a question of law i.e. the interpretation ofa statute, it will be res judicata in a subsequent proceeding betweenthe same parties where the cause of action is the same, for theexpression “the matter in issue” in Section 11 of the Code of CivilProcedure means the right litigated between the parties i.e. thefacts on which the right is claimed or denied and the law applicableto the determination of that issue. Where, however, the questionis one purely of law and it relates to the jurisdiction of the Court ora decision of the Court sanctioning something which is illegal, byresort to the rule of res judicata a party affected by the decisionwill not be precluded from challenging the validity of that orderunder the rule of res judicata, for a rule of procedure cannotsupersede the law of the land.

The court while undertaking an analysis of the applicability of theplea of res judicata determines first, if the requirements of section 11CPC are fulfilled; and if this is answered in the affirmative, it will haveto be determined if there has been any material alteration in law or factssince the first suit was decreed as a result of which the principle of resjudicata would be inapplicable. We are unable to accept the submissionof the appellants that res judicata can neverbe decided as a preliminaryissue. In certain cases, particularly when a mixed question of law or fact

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Ais raised, the issue should await a full-fledged trial after evidence isadduced. In the present case, a determination of the components of resjudicata turns on the pleadings and judgments in the earlier suits whichhave been brought on the record. The issue has been argued on thatbasis before the Trial court and the first appellate court; followed by tworounds of proceedings before the High Court (the second following uponBan order of remand by this court on the ground that all parties were notheard). All the documentary material necessary to decide the issue isbefore the court and arguments have been addressed by the contestingsides fully on that basis.

E.2 The Plea of Res Judicata and the three previous suitsC24. We will now refer to the proceedings in the three suits todecide if the bar of res judicata would be applicable in view of judgmentsin any of the previous suits.

I. OS 92/1950-51/ The first suitD

25. OS 92/1950-51was instituted by five residents of Gubbi townagainst the Abdul Khuddus who was managing the mosque. The suitwas instituted under the provisions of Section 92 CPC to settle a schemefor the management of the mosque since Abdul Khuddus was alleged tobe misappropriating the funds accruing to the mosque and was trying toEset up his own title to the property of the mosque. The reliefs whichwere sought in the suit were for a.Settling a scheme for the administration of Jamia Masjidsituated in Gubbi and the management of its properties; and b.Directing the defendant to render accounts in respect ofFthe income and other funds.

The schedule to the plaint contained six properties of which serialNo. 2 (which corresponds to the suit schedule property) is describedthus:

“2. Dry land bearing Survey No.2, measuring 2Acre 4 guntas,Gassessed at Rs.4 /- and situated in Gubbi Village.”26. The issues which were framed by the Trial Court were asfollows:

“(1) In the schedule properties being to the Jamia MasjidHat Gubbi as alleged in the plaint?

(2) Is the said Mosque a public religious institution as alleged bythe plaintiff?

(3) Is it a private institution belonging to the defendant’s family?

(4) Are the schedule shops built out of defendants private funds?

(5) Are plaintiffs persons interested in the Masjid and is! the suitmaintainable?.

(6) Is the defendant entitled to continue in management of themosque in question?

(7) Is the court-fee is sufficient?

(8) To what relief is the plaintiff entitled?”

27. The 1[st] Additional District Judge decreed the suit in the followingterms:

“14. …the suit is decreed directing the settlement of the schemetowards the proper management of the Jamia Masjid in Gubbiand for the due and proper administration suit schedule items 1,4and 5 subject to the observation made above in respect of theseItems 1,4 and 5 subject to the observation made above in respectof these items. The defendant shall pay costs of this suit in theplaintiffs. Pleader’s fee Rs. 30/-”

28. In the course of the judgment, the District Judge discussedthe evidence adduced by both the parties and came to the prima faciefinding that of the six suit properties, the mosque did not have the title totwo of the properties, namely, item 2 which is the suit property in theinstant proceedings in OS 149/1998 and suit item 3. Abdul Khuddus inhis testimony as D.W.6 deposed that the mosque has nothing to do withthe lands (Item Nos. 2 and 3) given to him by the Government as KhaziInam. Considering that no proof to the contrary was adduced by theplaintiffs in the suit, the District Judge recorded the following finding inparagraph 7:

“The plaintiffs have not produced anything to show that the suititems 2 and 3 were granted or acquired for the mosque. It must

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Atherefore be held that these two items are khazi grantedpersonally to the ancestors of the defendant they do notform part of properties of the mosque.”

(emphasis supplied)

29. Significantly, after the above observation, the District JudgeBentered the following finding in paragraph 10:

“10. In his written statement the defendant claimed all the suitschedule immoveable as his own. But as observed before theevidence discloses his prima facie right to only suit scheduleitems 2 and 3. Those two items therefore be considered asCbelonging to the mosque. It shall however be open for the trusteesto be appointed to take such steps as may deems fit if they considerthat in respect of those two items (Items 2 and 3) the defendanthas not satisfied the terms of the grant.”

30. An appeal was filed by Abdul Khuddus before the High Court[20]Dassailing the finding of the District Judge that items 1, 4 and 5 belongedto the mosque. In a judgment dated 14 August 1989, the appeal waspartly allowed with respect to items 1 and 5 with the following finding:“The result is that this appeal is allowed in part. In substitution ofthe decree made by Court below, we direct that the learned DistrictEJudge will now settle a scheme for the due administration of themosque and its properties which are items 1 and 5.”

31. OS 92/1950-51 was a representative suit filed under section92 CPC, specifically under clause (g), for settling the scheme ofadministration of the mosque. It has been consistently contended byFAbdul Khuddus that item 2 of the suit schedule property was granted tohim as a Khazi inam, and is thus not a mosque property. In order toadjudicate on the applicability of the plea of res judicata vis-à-vis thefirst suit, it is necessary that we decide on the following three issues:

A.The scope of the first suit which was instituted under Section92 of the CPC;G

B.Whether the parties in the first suit and the instantproceedings are the same; and

C.Whether the issue of title over the suit property wasconclusively decided in the first suit.

H20 Regular Appeal No. 510 of 1954

E.2.1Determination of title in a Representative suit

32. In Mahant Pragdasji Guru Bhagwandasji v. PatelIshwarlalbhai Narsibhai[21], a three judge Bench of this Court explainedthe ambit of a representative suit under Section 92 of the CPC. In thatcase, one of the reliefs sought was the declaration of the suit property asthe religious and charitable trust property of Kaivalya or Karuna SagarPanth while the defendant contended that the suit property was privateproperty. Justice BK Mukherjea speaking for the Bench expounded onthe scope of a suit under section 92 CPC, particularly in view of therelief seeking a declaration:

“10 A suit under S.92. Civil P.C. is a suit of a special nature whichpresupposes the existence of a public trust of a religiousor charitable character. Such suit can proceed only on theallegation that there is a breach of such trust or that directionsfrom the Court are necessary for the administration thereof, andit must pray for one or other of the reliefs that arespecifically mentioned in the section. It is only when theseconditions pre fulfilled that the suit has got to be brought inconformity with the provision of S.92, Civil P.C. As was observedby the Privy Council in Abdul Rahil v. Md. Barkat Ali. 55 Ind,App. 96, P.C. a suit for a declaration that certain property appertainsto a religious trust may lie under the general law but is outside thescope of S.92. Civil Procedure Code. In the case before us, theprayers made in the plaint are undoubtedly appropriate to the termsof Section 92 and the suit proceeded on the footing that thedefendant, who was alleged to be the trustee in respect of a publictrust, was guilty of breach of trust. The defendant denied theexistence of the trust and denied further that he was guiltyof misconduct or breach of trust. The denial could notcertainly oust the jurisdiction of the court, but when thecourts found concurrently, on the evidence adduced by theparties, that the allegations of breach of trust were not madeout, and as it was not the case of the plaintiffs, that anydirection of the court was necessary for properadministration of the trust, the very foundation of a suitunder Section 92 of the Civil Procedure Code becamewanting and the plaintiffs had absolutely no cause of action A

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Afor the suit they instituted. In these circumstances, thefinding of the High Court about the existence of a publictrust was wholly inconsequential and as it was unconnectedwith the grounds upon which the case was actually disposedof, it could not be made a part of the decree or the finalorder in the shape of a declaratory relief in favour of theBplaintiffs. It has been argued by the learned Counsel for therespondents that even if the plaintiffs failed to prove the otherallegations made in the plaint, they did succeed in proving that theproperties were public and charitable trust properties — a factwhich the defendant denied. In these circumstances, there wasCnothing wrong for the court to give the plaintiffs a lesser reliefthan what they actually claimed. The reply to this is, that in asuit framed under Section 92 of the Civil Procedure Codethe only reliefs which the plaintiff can claim and the courtcan grant are those enumerated specifically in the differentclauses of the section. A relief praying for a declaration thatDthe properties in suit are trust properties does not comeunder any of these clauses. When the defendant denies theexistence of a trust, a declaration that the trust does existmight be made as ancillary to the main relief claimed underthe section if the plaintiff is held entitled to it; but when theEcase of the plaintiff fails for want of a cause of action, there is nowarrant for giving him a declaratory relief under the provision ofSection 92 of the Civil Procedure Code. The finding as to theexistence of a public trust in such circumstances would be nomore than an obiter dictum and cannot constitute the final decisionin the suit.”F(emphasis supplied)

33. Bhagwandasji (supra) lays down the following principles onthe ambit of a representative suit under section 92 CPC:

(i) The plaintiff can only seek reliefs that fall under any of theclauses in section 92 CPC. A declaration that the suitGproperty belongs to the trust, does not fall under the scopeof any of the reliefs enumerated in section 92 CPC and isoutside the scope of the provision;

(ii) Merely because the defendant denies the title of the trustover the suit property, the jurisdiction of the court cannotHbe ousted;

(iii) When the title of the trust is contested, a determination ofthe title of the suit property is necessary for the purpose ofadjudication on the final relief, and thus it can be madeancillary to the main relief if the plaintiff is entitled to therelief sought under Section 92 CPC; and

(iv) If the plaintiff is not entitled to the relief sought, then in thatcase no determination on the title of the suit property canbe made since it would be inconsequential to the finaldecision in the suit.

On applying the principles evolved in Bhagwandasji (supra) tothe facts of the case, the relief sought in the first suit under section 92CPC was for determination of a scheme of management of the mosque.A determination of the title of the suit property with respect to the mosquewas ancillary to the main relief, under Section 92 of the CPC.

E.2.2 Representative Suit and Res judicata

34. We next advert to identifying if the parties in the instantproceedings (OS 149/1998) are the same as the first suit (OS 92/1950-51). The first suit was a representative suit filed by interested parties ofthe Mosque-Jamia Masjid while the instant suit was filed by the Presidentof the Jamia Masjid in his representative capacity. In Raje Anandrao v.Shamrao[22], ChiefJustice PB Gajendragadkar (as he then was) speakingfor a two judge Bench of this Court said:

“13…a suit under Section 92 is a representative suit and binds notonly the parties thereto but all those who are interested in thetrust.”

35. In Ahmad Adam Sait v. M E Makhri[23], Chief Justice PBGajendragadkar (as he then was) speaking for a three judge Benchheld:

“16…when a suit is brought under Section 92, it is brought by twoor more persons interested in the trust who have taken uponthemselves the responsibility of representing all the beneficiariesof the Trust. In such a suit, though all the beneficiaries may not beexpressly impleaded, the action is instituted on their behalf and 22 (1961) 3 SCR 93023 (1964) 2 SCR 647

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Arelief is claimed in a representative character. This positionimmediately attracts the provisions of Explanation VI to Section11 of the Code. Explanation VI provides that where persons litigatebona fide in respect of a public right or of a private right claimedin common for themselves and others, all persons interested insuch right shall, for the purposes of this section, be deemed toBclaim under the persons so litigating. It is clear that Section 11read with its Explanation VI leads to the result that a decree passedin suit instituted by persons to which Explanation VI applies willbar further claims by persons interested in the same right in respectof which the prior suit had been instituted. Explanation VI thusCillustrates one aspect of constructive res judicata. Where arepresentative suit is brought under Section 92 and a decree ispassed in such a suit, law assumes that all persons who have thesame interest as the plaintiffs in the representative suit wererepresented by the said plaintiffs and, therefore, are constructivelybarred by res judicata from reagitating the matters directly andDsubstantially in issue in the said earlier suit.”

The same principle was reiteratedin R. Venugopala Naidu(supra).In a two judge Bench decision in Shiromani Gurdwara ParbhandhakCommittee v. Mahant Harnam Singh C. (Dead) M.N. Singh[24], thisCourt held:E

“19. As observed by this Court in R. VenugopalaNaidu v. Venkatarayulu Naidu Charities [1989 Supp (2) SCC356 : AIR 1990 SC 444] a suit under Section 92 CPC is a suit ofspecial nature for the protection of public rights in the public trustand charities. The suit is fundamentally on behalf of the entireFbody of persons who are interested in the trust. It is for thevindication of public rights. The beneficiaries of the trust, whichmay consist of the public at large, may choose two or more personsamongst themselves for the purpose of filing a suit under Section92 CPC and the suit-title in that event would show only their namesGas plaintiffs. Can we say that the persons whose names are in thesuit-title are the only parties to the suit? The answer would be inthe negative. The named plaintiffs being the representatives ofthe public at large which is interested in the trust, all such interestedpersons would be considered in the eyes of the law to be parties H24 AIR 2003 SC 3349

to the suit. A suit under Section 92 CPC is thus a representativesuit and as such binds not only the parties named in the suit-titlebut all those who share common interest and are interested in thetrust. It is for that reason that Explanation VI to Section 11 CPCconstructively bars by res judicata the entire body of interestedpersons from reagitating the matters directly and substantially inissue in an earlier suit under Section 92 CPC.”

On a perusal of the above authorities it is evident that arepresentative suit is binding on all the interested parties. Therefore, thejudgment of the court in the first suit would be binding on Jamia Masjidand would preclude it from instituting another suit on the same issue if ithas been conclusively decided. It is now to be analysed if the substantiveissue in the instant suit was conclusively decided in the first suit.

E.2.3 Conclusive decision and Res Judicata

36. The locus classicus on the point of determining if an issuewas ‘directly and substantially’ decided in the previous suit is the decisionof Justice M Jagannadha Rao (writing for a two judge bench) inSajjadanashin Syed MD B.E. Edr. (D) by Lrs. v. Musa DadabhaiUmmer.[25]. During the course of the judgment, the Court analysed theexpression “directly and substantially in issue” in Section 11 and laiddown the twin test of essentiality and necessity:

“12. It will be noticed that the words used in Section 11 CPC are“directly and substantially in issue”. If the matter was in issuedirectly and substantially in a prior litigation and decided against aparty then the decision would be res judicata in a subsequentproceeding. Judicial decisions have however held that if a matterwas only “collaterally or incidentally” in issue and decided in anearlier proceeding, the finding therein would not ordinarily be resjudicata in a latter proceeding where the matter is directly andsubstantially in issue.”

[…]

18. In India, Mulla has referred to similar tests (Mulla, 15th Edn.,p. 104). The learned author says: a matter in respect ofwhich relief is claimed in an earlier suit can be said to be generallya matter “directly and substantially” in issue but it does not mean

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Athat if the matter is one in respect of which no relief is sought it isnot directly or substantially in issue. It may or may not be. It ispossible that it was “directly and substantially” in issue and it mayalso be possible that it was only collaterally or incidentally in issue,depending upon the facts of the case. The question arises as towhat is the test for deciding into which category a case falls?BOne test is that if the issue was “necessary” to be decidedfor adjudicating on the principal issue and was decided, itwould have to be treated as “directly and substantially” inissue and if it is clear that the judgment was in fact basedupon that decision, then it would be res judicata in a latterCcase (Mulla, p. 104). One has to examine the plaint, the writtenstatement, the issues and the judgment to find out if the matterwas directly and substantially in issue (Ishwer Singh v. SarwanSingh [AIR 1965 SC 948] and Syed Mohd. Salie Labbai v.Mohd. Hanifa [(1976) 4 SCC 780 : AIR 1976 SC 1569] ). Weare of the view that the above summary in Mulla is a correctDstatement of the law.

19. We have here to advert to another principle of caution referredto by Mulla (p. 105):

“It is not to be assumed that matters in respect of which issuesEhave been framed are all of them directly and substantially inissue. Nor is there any special significance to be attached to thefact that a particular issue is the first in the list of issues. Which ofthe matters are directly in issue and which collaterally orincidentally, must be determined on the facts of each case. Amaterial test to be applied is whether the court considers theFadjudication of the issue material and essential for its decision.”

37. Adverting to the decision in Mahant Pragdasji GuruBhagwandasji (supra)and two earlier decisions[26], the Court held thatGthese were instances where inspite of adverse findings in an earlier suit,the finding on that specific issue was not treated as res judicata as itwas purely incidental, auxiliary or collateral to the main issue in each ofthese cases and not necessary in the earlier case.

26 Run Bahadur Singh v. Lucho Koer,ILR (1885) 11 Cal 301 ; Asrar Ahmed v. DurgahHCommittee, AIR 1947 PC 1.

38. In another decision in Gram Panchayat of Village Naulakhav. Ujagar Singh[27], it has been held that the decision in an earlier suit foran injunction, where no question of title was adjudicated upon will not bebinding on the question of title:

“10. We may also add one other important reason which frequentlyarises under Section 11 CPC. The earlier suit by the respondentagainst the Panchayat was only a suit for injunction and not oneon title. No question of title was gone into or decided. The saiddecision cannot, therefore, be binding on the question of title. Seein this connection Sajjadanashin Sayed v. Musa DadabhaiUmmer [(2000) 3 SCC 350] where this Court, on a detailedconsideration of law in India and elsewhere held, that even if, inan earlier suit for injunction, there is an incidental finding on title,the same will not be binding in a later suit or proceeding wheretitle is directly in question, unless it is established that it was“necessary” in the earlier suit to decide the question of title forgranting or refusing injunction and that the relief for injunctionwas founded or based on the finding on title. Even the mereframing of an issue on title may not be sufficient as pointed out inthat case.”

However, in Sajjadanashin Syed (supra), an earlier judgment inSulochana Amma (supra)and the Madras High Court’s judgment inVanagiri[28]were referred to in order to lay emphasis on the unique factsof each case and its importance for determination of whether the issuewas substantially decided. In both the referred cases, the issue waswhether the finding of title in an injunction suit would operate as resjudicata to a subsequent suit for declaration of title. While in SulochanaAmma, it was held that by the doctrine of res judicata, the findingwould bar the subsequent suit, in Vanagiri, it was held that the title wasnot conclusively decided and that the subsequent suit would not be barred.It was observed that the twin tests of necessity and essentiality mightlead to different conclusions on suits of a similar nature based on thefacts and circumstances in each of them.

39. In a more recent decision in Nand Ram (Dead) ThroughLegal Representatives v. Jagdish Prasad (Dead) Through Legal 27 (2000) 7 SCC 543

28 Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari,AIR 1965 Mad 355

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ARepresentatives[29],a Bench of two judges reiterated the principle thatif a matter has only collaterally or in an auxiliary manner been in issue ordecided in an earlier proceeding, the finding would not ordinarily be resjudicata in a later proceeding where the matter is directly andsubstantially in issue. Justice Hemant Gupta (writing for a two judgebench) noted that the material test to be applied is whether theBadjudication of the issue is material and essential for the decision. InNand Ram, the land leased by the plaintiffs to the defendants wasacquired under the Land Acquisition Act, 1894. A dispute arose on theapportionment of the compensation. The suit was decided against thedefendant on the ground that defendant did not pay the lease rent forCmore than 12 months and thus according to the lease agreement, thelease had come to an end. It was thus held that the defendant would notbe entitled to the compensation. Subsequently, the plaintiff filed an evictionsuit asserting that the defendant was in possession of the land that wasnot included in the lease deed. The High Court in the second appeal heldthat the subsequent suit was barred by res judicata since the formerDsuit had conclusively decided on the title of the suit property. On appeal,this court set aside the judgment of the High Court on the ground thatthe issue of title was not conclusively decided in the former suit.

40. In view of the authorities cited above, the twin test that isused for the identification of whether an issue has been conclusivelyEdecided in the previous suit is:

A.Whether the adjudication of the issue was ‘necessary’ fordeciding on the principle issue (‘the necessity test’); and B.Whether the judgment in the suit is based upon the decisionFon that issue (‘the essentiality test’).

On applying the necessity test to the case at hand, we will have toidentify if the decision on the principle issue of framing a scheme for theadministration of the Mosque could not have been arrived at withoutadjudication of the title of the suit. The plaint contains two distinctGallegations against the defendant, Abdul Khuddus: (i) that he wasmisappropriating the funds of the mosque; and (ii) that he was setting uphis own title to the suit property. The defendant contested that the suitproperty belonged to him. Therefore, since the title was contested, itwas necessary that the court in the first suit determine if the suit property belonged to the mosque to adjudicate on the scheme of administration ofthe mosque. The contention that the trial court could not have adjudicatedon the title of the suit property in a representative suit has already beenaddressed in the preceding section relying on the case of Bhagwandasji(supra). On applying the essentiality test to the judgment in the first suit,it has to be identified if the final decision rendered by the court in thatcase would be altered if the issue on title was determined otherwise.Whether the scheme for the administration of the mosque would alsocover the suit property was necessary for adjudication in the formersuit. In the next section we shall explore what precisely was the natureand import of the adjudication in the former suit.

E.2.3.1 Similarity in issue and Res Judicata

E.2.3.1 Similarity in issue and Res Judicata

41. Apart from the issue whether the title to the suit property wasconclusively decided in the first suit, it is necessary that we identify ifthe matters in issue in the former and the subsequent suits are the same.The first suit under Section 92 of the CPC was for settling a scheme ofadministration of Jamia Masjid and the management of its propertiesand the rendering of accounts of its funds and income by the Defendant.In the subsequent suit, the prayer was for the declaration of the suitproperty as a wakf property. In the first suit, it was held that the suitproperty was ‘prima facie’ the property of Abdul Khuddus; that it wasgiven to his forefathers as a service inam, for his functions as a khazi.The cause of action in the subsequent suit arose because the successorsof Abdul Khuddus alienated the suit property. The matters wereadjudicated upon in the former suit are not the same as those in thesubsequent suit for two reasons: Firstly, there was a changedcircumstance resulting from the notification declaring the suit propertyas a wakf property which was issued after the first suit was decreed;secondly, in the first suit, which was essentially a suit for administration,the suit property was observed to prima facie belong to Abdul Khuddusas akhazi inam.

42. The adjudication on the suit property was focussed aroundwhether it belonged to the mosque. Though the suit property was primafacie declared to not belong to the mosque, it would not as a corollarymean that it was the personal property of Khazi Abdul Khuddus overwhich he possessed an absolute or inalienable right, particularly in viewof his deposition that the property was given as an inam to his forefathers AB

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Afor their services a Khazi. There was no discussion on whether the suitproperty was a personal inam or an inam attached to the office; therewas no adjudication in the earlier suit on the terms of the grant. Thus, noadjudication on the absolute title over the suit property was rendered inthe former suit. On reading together, the findings which have been arrivedat in paragraph 7 and paragraph 10 of the judgment of the trial court inBthe first suit, it is evident that the District Judge did not enter a conclusivefinding that item 2 of the schedule to that suit (which corresponds to thesuit schedule property in the present case) was the personal property ofAbdul Khuddus. In fact, the use of the expression “prima facie right” inparagraph 10 extracted above clearly indicates that there was noCconclusive finding in the judgment of the District Judge. The DistrictJudge also noted it would be open to the trust to take steps as they deemfit in respect of item 2 and item 3 of the Schedule in that suit, if thedefendant had not fulfilled the terms specified in the grant. Thus thefinding on issue No 1 that schedule items 1, 4 and 15 belong to themosque must specifically be read in the context of what has been statedDabove. From the above analysis, it becomes clear that there was noadjudication in the earlier suit that Abdul Khudus had an absolute title tothe suit property.

43. In view of the above discussion, the suit that gives rise to theEinstant proceedings is not barred by the first suit for the following reasons:

(i) The court in the first suit was not ousted from determiningif the suit property belonged to the mosque while settling ascheme for administration in a suit under Section 92 CPC;

(ii) The suit under Section 92 is of a representative characterFand the decree would bind all persons interested in the Trustproperty;

(iii) There was a ‘prima facie’ finding in the former suit that thesuit property belonged to Abdul Khuddus; and G(iv)In the context of a suit for settling a scheme ofadministration, the issue in the first suit was whether thesuit property belonged to Jamia Masjid. There was noadjudication or finding that Khazi Abdul Khuddus hadabsolute title over the property, particularly in view of thedeposition of Abdul Khuddus that the property was givenH

as a Khazi Inam, coupled with the observation of the courtthat he had a ‘prima facie’ right over the property. Therefore,the alleged claim of title of Abdul Khuddus was notadjudicated. Thus, the matters which were in issue beforethe court in the first suit and the instant proceedings aredistinct.

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II OS 748 of 1968: the second suit

44. The suit was instituted by the Mysore State Board of Wakf.Abdul Khuddus and H.S. Gururajarao were impleaded as the first andsecond defendants to the suit. The plaint contained the followingaverments:

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(i) The suit property is a wakf property dedicated as a ‘KhaziService Inam’. People who perform the service of a Khaziare entitled to remain in possession of the service inam andto realise the usufruct after paying the wakf fund; D

(ii) Abdul Khuddus was entitled to remain in possession by virtueof his office as Khazi, apart from which he had no right,title or interest;

(iii) The suit property had been notified as a wakf pursuant toenquiry. A Gazette notification had been issued on 10 JulyE1965 notifying the suit property as a wakf property;

(iv) The cause of action arose on 10 July 1965 when the illegaland forcible occupation of the suit property by the seconddefendant came to the knowledge of the plaintiff; and(v)The reliefs sought were:

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a.A declaration that the property constitutes a wakf;b.A decree for possession of the suit property.

45. The second defendant filed a written statement stating that hewas prepared to pay rent in the event that the property was held to bewakf property. A compromise petition was filed by the parties underOrder 23 Rule 1 CPC on 27 October 1969 which envisaged that thesecond defendant shall continue to be the lessee of the suit property tillthe expiry of the period of lease (end of May 1971)for which the leaseamount shall to paid to first defendant. In the alternative, if he desired to G

Aextend his lease thereafter, he could enter into a fresh agreement oflease with the first defendant, failing which he would vacate afterdemolition of the building. The suit was decreed on 27 October 1969 interms of the compromise petition. The basis and foundation in the secondsuit was that:

B(i)The plea that the suit property is a wakf on the basis ofwhich a declaration was sought;

(ii) Abdul Khuddus was entitled to possession only in hiscapacity as a khazi, the grant being a khazi service inam;

(iii) The property has been notified as a wakf in the MysoreCState Gazette on 10 July 1965 pursuant to a declaration ofa wakf subscribed to by Abdul Khuddus;

(iv) The compromise decree envisages that H.S. Gururajaraowould pay the rent to the first defendant and hand overpossession of the suit property to the first Defendant on theDcompletion of the tenure of the lease. There is no clause inthe compromise deed that Abdul Khuddus had absolute titleto the property; and

(v) In the second suit, the State Wakf Board sought declaratoryrelief and a decree for possession. A reading of the plaintEwould indicate that the essential nature of the grievancewas in respect of a lease granted to the second defendant.The case of the Wakf Board was that the property hadbeen dedicated as a wakf and was notified in the Gazetteas a wakf; Abdul Khuddus was entitled by virtue of hisFoffice as khazi to the usufruct; and the lease in favour ofthe second defendant would not bind the wakf Board. Thesuit was compromised and the second defendant agreed tohandover possession to the first defendant. No part of theclaim was abandoned on the question of title of AbdulKhuddus.GE.2.4 Compromise decree and Res Judicata

46. It is contended by the counsel for the appellant that since acompromise deed was arrived at between the Mysore State Board ofWakf, Abdul Khuddus and the lessee with regard to the possession ofHthe suit property, the other reliefs have been abandoned. It was thus contended that in view of the compromise deed, the claim of title to thesuit property has been abandoned and cannot be raised in the subsequentsuit. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao[30]and Sunderabai v. Devaji Shankar Deshpande[31], this Court held thatsince a compromise decree is not a decision of the court, the principle ofres judicata cannot be made applicable. However, it was held that thecompromise decree may in effect create estoppel by conduct betweenthe parties, and the parties by estoppel will be prevented from initiating asubsequent suit. Chief Justice Bhagwati (as he was then) writing for athree judge bench in Sunderabai observed:

“12. The bar of res judicata however, may not in terms beapplicable in the present case, as the decree passed in Suit No.291 of 1937 was a decree in terms of the compromise. The termsof Section 11 of the CPC would not be strictly applicable to thesame but the underlying principle of estoppel would still apply.Vide: the commentary of Sir Dinshaw Mulla on Section 11 of theCPC at p. 84 of the 11th Edn. under the caption Consent decreeand estoppel:

“The present section does not apply in terms to consent decrees;for it cannot be said in the cases of such decrees that the mattersin issue between the parties ‘have been heard and finally decided’within the meaning of this section. A consent decree, however,has to all intents and purposes the same effect as res judicata asa decree passed in invitum. It raises an estoppel as much as adecree passed in invitum.”

Since it is the principle of estoppel by conduct that will bar theinstitution of the subsequent suit, it is pertinent that we refer to thecompromise decree to determine if any compromise was arrived atbetween the parties on the title to the suit property. On a perusal of thecompromise deed, it is evident that a compromise was reached only onthe issue of possession and lease. When no compromise was arrived atbetween the parties on the title to the suit property, then no estoppel byconduct could also be inferred. Additionally, the counsel for the respondentreferred to Order 23 Rule 3A to contend that a subsequent suit is barredwhen the previous suit is dismissed through a compromise decree.However, the provision would not be applicable to the case at hand 30 AIR 1967 SC 591

31 AIR 1954 SC 82

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III. OS 100 of 1983: the third suit

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47. The suit was instituted in the Court of Munsif at Gubbi by theKarnataka Wakf Board. The defendants were Khazi Abdul Masoodson of Abdul Khuddus (the first defendant) while the second, third, fourthand fifth defendants were persons to whom the property was sought tobe alienated by the first defendant.

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48. In was averred in the plaint that the cause of action arosewhen the first defendant who had no right and interest in the suit scheduleproperty was trying to interfere with the possession of the plaintiff withthe assistance of the second, third and fourth defendants. The reliefwhich was sought in the suit was a permanent injunction restraining theDdefendants from interfering with the possession of the plaintiff –Karnataka Board of Wakfs. The suit was instituted on 4 August 1983.Significantly, the suit out of which the present dispute arises was institutedon 5 November 1984 for seeking declaration and possession. It wasonly thereafter on 22 November 1984 that OS 100 of 1983 waswithdrawn. OS 100 of 1983 was a suit for a bare injunction and noEdeclaration was claimed. In any event there was no adjudication onmerits.

49. The third suit of 1983 instituted by the Karnataka Board ofWakfs was a suit for injunction simpliciter. No question of title was raisedand none was adjudicated upon. As a matter of fact, the suit was institutedFon the apprehension that the property was likely to be alienated by thelegal representatives of Abdul Khuddus. Before the suit of 1983 waswithdrawn, the suit out of which these proceedings arise was institutedfor seeking comprehensive reliefs in terms of a declaration of title and apermanent injunction. Therefore, the decision in the third suit does notGbar the initiation of the suit out of which the instant proceeding arises.

50. The High Court dismissed the second appeal holding that thecourts conclusively decided on the title to the suit property in the firstsuit (OS 92/1950-51) and that any subsequent suit on the same issue oftitle would be barred by the principles of res judicata. In view of thediscussion above, this finding arrived at by the High Court is erroneous.H

While holding that the judgment in the first suit has conclusively decidedthat the title over the suit property belongs to Abdul Khuddus, the HighCourt has lost sight of the observations in paragraph 7 and 10 of thejudgment of the trial court. It has been specifically held there that thesuit property was a Khazi service Inam and that Abdul Khuddus has aprima facie right to the suit property. There was no adjudication to theeffect that Abdul Khuddus had an absolute title to the suit property.Additionally, the decision of the courts in the first suit was deliveredbefore the suit property was notified as a wakf property in view ofNotification No. MWB 19(11) dated 6 July 1965. The principle of resjudicata can thus not be applied without taking into consideration thischanged circumstance.

51. We are also of the opinion that the High Court has committedan error in applying the principle of res judicata based on the judgmentin the second suit. It was observed by the High Court that the secondsuit that was decreed in terms of the compromise was intended to putthe litigation to an end and would thus bar any subsequent suit on the titleto the suit property by virtue of the principle of res judicata. For thispurpose, reliance was placed on a two judge bench decision of this courtin Byram Pestonji Gariwala (supra) where it was held that a challengeto a consent decree six years later was vitiated by reason of delay,estoppel, and res judicata. However, the High Court lost sight of thefact that the compromise deed was entered into specifically with regardto the handing over of possession of the suit property by the lessee at theend of the lease and no compromise on the title to the suit property wasarrived at.

F. The Conclusion

52. In view of the discussion above, we summarise our findingsbelow:

(i) Issues that arise in a subsequent suit may either be questionsof fact or of law or mixed questions of law and fact. Analteration in the circumstances after the decision in the firstsuit, will require a trial for the determination of the plea ofres judicata if there arises a new fact which has to beproved. However, the plea of res judicata may in anappropriate case be determined as a preliminary issue whenneither a disputed question of fact nor a mixed question oflaw or fact has to be adjudicated for resolving it; A

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A(ii)While deciding on a scheme for administration in arepresentative suit filed under Section 92 of the CPC thecourt may, if the title is contested, have to decide if theproperty in respect of which the scheme for administrationand management is sought belongs to the Trust; B(iii)A suit under section 92 CPC is of a representative characterand all persons interested in the Trust would be bound bythe judgment in the suit, and persons interested would bebarred by the principle of res judicatafrom instituting asubsequent suit on the same or substantially the same issue; C(iv)Since the first suit (OS 92 of 1950-51) was filed by membersinterested in the Jamia Masjid and the suit out of which theinstant proceedings arise (OS 149 of 1998) was filed by thePresident of Jamia Masjid, the formulation in (iii) above issatisfied; D(v) There was no adjudication in the first suit (OS 92 of 1950-51) on whether Abdul Khuddus had absolute title to the suitproperty. There was only a prima facie determination thatItems 2 and 3 of the schedule of properties to the first suitbelonged to Abdul Khuddus. The matters substantially inissue in OS 92 of 1950-51, which was a suit forEadministration and management of trust properties and foraccounts, are distinct from the issues in the suit out of whichthe instant proceedings arise. Therefore, OS 149 of 1998 isnot barred by res judicata in view of the decision in thefirst suit; F(vi)While a compromise decree in a prior suit will not bar asubsequent suit by virtue of res judicata, the subsequentsuit could be barred by estoppel by conduct. However,neither the compromise petition dated 27 October 1969 northe final decree in the second suit dated 27 October 1969Gindicate that a compromise on the title to the suit propertywas arrived at. The compromise was restricted to the issueof the erstwhile lessee handing over possession of the suitproperty at the end of the lease; and

(vii) The third suit (OS 100/1983) was a suit for an injunctionsimpliciter. The third suit was withdrawn after the suit outH

of which the instant proceeding arises was filed for seekinga substantive declaration and an injunction. No adjudicationon the rights of the parties was made in the third suit.

53. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the High Court of Karnataka dated 23January 2012 in RSA 2189 of 2007. OS 149 of 1998 is restored to thefile of the Principal Civil Judge (Senior Division) Tumkur for trial. Havingregard to the fact that the suit was instituted in1998, the Trial Judge isrequested to dispose of the suit and to complete trial within a period ofone year from the date of the receipt of the certified copy of this judgment.There shall be no order as to costs.

54. Pending application(s), if any, shall stand disposed of.

Ankit Gyan

Appeal allowed.

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