Jamia Masjid vs K.V.Rudrappa (D) Th.Lrs on 23 September, 2021


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Supreme Court of India

Jamia Masjid vs K.V.Rudrappa (D) Th.Lrs on 23 September, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, Vikram Nath, B.V. Nagarathna

                                                                       REPORTABLE



                              IN THE SUPREME COURT OF INDIA
                               CIVIL APPELLATE JURISDICTION


                                Civil Appeal No. 10946 of 2014



          The Jamia Masjid                                       …Appellant


                                            Versus



          Sri K V Rudrappa (Since Dead) By Lrs. & Ors.           …Respondents




Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2021.09.23
12:10:40 IST
Reason:




                                              1
                                     JUDGMENT



Dr Dhananjaya Y Chandrachud, J


Index

A.      The Facts
B.      Proceedings before the Courts

C.      Proceedings before the High Court

D.      Submissions of the Parties

E. The Analysis

 E.1 Res Judicata as a Preliminary issue

E.2 The Plea of Res Judicata and the three previous suits

E.2.1 Determination of title in a Representative suit

E.2.2 Representative Suit and Res judicata

E.2.3 Conclusive decision and Res Judicata

E.2.3.1 Similarity in issue and Res Judicata

E.2.4 Compromise decree and Res Judicata

F. The Conclusion

2
PART A

1. A Single Judge of the High Court of Karnataka dismissed a second appeal

filed under Section 100 of the Code of Civil Procedure 1908 1, affirming the decision

of the Trial Court and the First Appellate Court that the suit instituted by the

appellant-plaintiff is barred by the principle of res judicata. The appellant moved this

court in a Special Leave Petition to challenge the decision of the Single judge. Leave

has been granted on 8 December 2014.

A. The Facts

2. Described as the Jamia Masjid Gubbi in the cause title, the appellant

instituted the suit 2 through its President for seeking the following reliefs:

(i) A declaration that the State Wakf Board is the owner in possession of the suit

schedule property, being survey No. 2 of Gubbi village admeasuring 2 acres

and 4 guntas of non-agricultural land with a cinema building;

(ii) A decree for possession against the defendants;

(iii) An injunction to restrain the defendants from interfering with the possession

and enjoyment of the plaintiff; and

(iv) A decree for mesne profits.

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

(i) The suit property is a ‘Khazi Service Inam’. Abdul Khuddus, the spouse of

the fifth defendant and father of the sixth to ninth defendants was the

mutawalli who was managing the property for and on behalf of the Wakf

Board. Abdul Khuddus, was entitled to the usufruct of the property subject

1
”CPC”
2
O.S 149/1998

3
PART A

to the condition precedent that he would perform his service as a Khazi or

Mutawalli. During his lifetime he had given up his service as a Khazi upon

being appointed by the Gubbi Muslim Jamath as the Pesh Inam on a

monthly salary of Rs 30 for performing the Namaz (daily prayers);

(ii) Upon the enactment of the Wakf Act 1954, which was adopted by the then

Mysore State in 1955, the Assistant Commissioner conducted a survey of

Wakf Properties in 1963. Abdul Khuddus gave a declaration to the Wakf

Board for the registration of the suit schedule property as a wakf. A notice

inviting objections for registration of the suit schedule property as a wakf

property was issued. No objection to the registration of the suit schedule

property was raised and eventually the property was notified as a wakf

property at serial No 136 of the Mysore Gazette notification No. MWB

19(11) dated 6 July 1965;

(iii) Under section 6 of the Wakf Act 1954, if any dispute arises on a property

declared as a wakf property, a claim can be raised within one year of the

publication of the notification. There is a prohibition on alienation under

rule 5 of the Wakf Rules framed under the Wakf Act, 1965 unless

approved by a two-thirds majority of the Wakf Board;

(iv) A person by the name of H.S. Gururajarao and his brothers were granted

a lease over the schedule suit property on 8 December 1944 by the Muzrai

officer to run a ‘cinema talkies’. A suit, OS 748/1968, was instituted by the

Wakf Board against the Abdul Khuddus and H.S. Gururajarao seeking

possession of the suit property and a declaration that the property
4
PART A

constitutes a wakf. The suit was compromised with Abdul Khuddus being

permitted to collect the rent from the lessee (H S Gururajarao) on behalf of

the Board;

(v) After the death of Abdul Khuddus, defendants 6 to 9 took possession of

the suit property. Allegations of mismanagement of the suit property were

made against them. The Chairman, D.W.C Tumkur recommended that the

suit property be directly managed by the Board under section 43(A) of the

Wakf Act 1954. Pursuant to the recommendation, the State Wakf Board

passed an order dated 6 April 1983 taking over the management;

(vi) H.S. Gururajarao who was in possession of the suit schedule property as a

lessee, handed over possession of the cinema building to the Wakf Board

on 29 June 1983. Defendants 5 to 9 however executed sale deeds in

respect of the property in favour of Defendants 1 to 4. Any alienation by

Defendants 5 to 9 is void since the Board did not approve the transaction

with a two-thirds majority; and

(vii) The cause of action arose on 16 April 1983 when Defendants 1 to 4

together with other defendants interfered with the possession of the

plaintiff on the strength of the sale in their favour executed by Defendants

5 to 9.

5
PART A

4. In May 2010, Defendants 2 to 4 filed their written statement raising the

defence that:

(i) The suit is barred by res judicata: OS 92/1950-51 3 was filed by the members of

the mosque known as Jamayat Masjid in which Abdul Khuddus (the predecessor

of Defendants 5-9) was a party. In the said suit, the District Judge by a judgment

dated 31 March 1954 declared the suit schedule property to be the personal

property of Abdul Khuddus. Abdul Khuddus instituted an appeal before the High

Court challenging a portion of the order of the District Judge. The High Court

upheld the judgment of the District judge on 14 August 1959. Since the parties

and the subject matter of the first suit and the present suit are the same, the suit

instituted by the appellant is barred by res judicata;

(ii) The suit schedule property is not a Khazi Service Inam but was the personal

property of Abdul Khuddus and his successors have rightfully sold it in favour of

Defendants 1-4;

(iii) The suit schedule property was leased to one H.S Gururaja Rao by Abdul

Khuddus and not by the then Muzrai officer as contended by the plaintiff. From

1995, a lease was granted in favour of Sri K.V Rudrappa who was running a

theatre in the name of ‘Channabasaveswara Talkies’. After the death of

Rudrappa, defendants 1-4 are running the theatre after obtaining a licence from

the District Magistrate;

3
“the first suit”

6
PART B

(iv) OS 748/1968 4 was instituted by the Mysore Board of Wakf against Abdul

Khuddus seeking a declaration that the suit property is a wakf and for possession

of the suit property. However, the suit was decreed in terms of the compromise

petition filed by the parties and therefore, the Wakf Board gave up its claim in

respect of the suit schedule property. The subsequent suit is hit by the principle

of res judicata; and

(v) OS 100/1983 5 was instituted by the Karnataka Board of Wakf seeking an

injunction restraining the defendants (the heirs of Abdul Khuddus) from

interfering in the peaceful possession of the suit property. This suit was

withdrawn by the plaintiff.

B. Proceedings before the Courts

5. The Trial Court took up two issues – issues 5 and 6 – relating to res judicata

and limitation as preliminary issues. By its judgment dated 3 February 2006, the trial

court held that the suit was not barred by limitation. However, the court held that the

suit was barred by res judicata by virtue of the decisions in the suits instituted

earlier:

(i) O.S 92/1950-51 was filed by the members of the public of Gubbi in their

representative capacity by virtue of Section 92 CPC. Abdul Khuddus

contended that the suit schedule property was his personal property. The first

issue framed in the suit was whether ‘the schedule properties belong to the

Jamia Mosque, Gubbi as alleged in the plaint’. The plaintiff was held to have

4
‘the second suit”
5
“the third suit”

7
PART B

failed to prove that two of the suit schedule properties (Sy. No. 2 and 3, of

which Sy No. 2 is the suit schedule property in the instant proceedings)

belongs to the Jamia Mosque. The High Court on second appeal6 held that

the properties in Sy No. 2, 3 and 4 do not belong to the mosque. Thus, the

issue with regard to the ownership of the suit schedule property has reached

finality in view of the decision of the High Court of Karnataka which was not

assailed before this court;

(ii) A judgment in a representative suit is binding on all the interested parties in

view of Explanation IV to Section 11 CPC. Though the first suit was not filed

by the Jamia Masjid in its individual capacity, it was filed by parties interested

in the administration of the mosque and thus all parties interested in the

mosque are bound by the judgment even if they were not impleaded as a

party;

(iii) The judgment of the trial court cannot be nullified by a notification issued by

the government declaring the suit property as a wakf property;

(iv) O.S 748/1968 filed by the plaintiff seeking a declaration that the Wakf is the

owner of the suit property ended in a compromise by which the Wakf Board

has admitted that Abdul Khuddus has the right to collect the rent from the

lessee. Thus, the Wakf Board has relinquished its title over the suit property;

and

(v) O.S No. 100/1983 was filed seeking an injunction against Abdul Khuddus.

However, the suit was dismissed on 22 November 1984 after a memo of

6
R.A. 510/1954

8
PART B

withdrawal was filed by the plaintiff’s counsel. Thus the Wakf Board has

relinquished rights over the suit property.

6. An appeal against the decree of the Trial Court was dismissed by the 3rd

Additional District Judge at Tumkur on 2 July 2007 for the following reasons:

(i) The finding in O.S 92/1950 and by the High Court on appeal was not

challenged by Abdul Khuddus. It was also not contested that the title of a

property cannot be determined in a representative suit filed under section 92

CPC;

(ii) A representative suit filed under section 92 CPC binds not only the parties

named in the suit but also those who are interested in the suit. Therefore, a

decision in a previous representative suit will bind all interested parties even if

they were not impleaded as a party to the suit;

(iii) The submission that the trial court had only prima facie found Abdul Khuddus

to possess title to the suit property and that hence, it was not conclusively

held that he had absolute title, is erroneous. To determine if a scheme should

be framed for the maintenance of a trust, the court will have to satisfy itself

whether the property is owned by the trust;

(iv) The plaintiff has not specified when Abdul Khuddus made the declaration for

notifying the suit property as wakf property. If the notification was made in

1963, there was no reason for the Wakf Board to file the suit, as late as in

1983;

(v) O.S. 748/1968 filed by the Wakf Board against Abdul Khuddus for a

declaration that the suit property belongs to the Wakf Board ended in a
9
PART B

compromise. The Wakf Board has waived its right over the suit property and

such a compromise creates an estoppel (based on the decisions in Provash

Chandra Daluj v. Biswanath Banerhee 7; Byram Pestonji Gariwala v.

Union Bank of India8); and

(vi) O.S No. 100/1983 was filed by the Wakf Board for seeking an injunction

against the defendants. The suit was dismissed by filing a Memo without

seeking leave to file the instant suit. The decision in Sarguja Transport

Service v. S.T.A.T Gwalior 9 was relied upon.

7. The High Court by its judgment and order dated 2 July 2008 allowed a

Regular Second Appeal and remanded the matter to the Trial Court for disposal in

accordance with law. The High Court held that:

(i) The present suit is not barred by res judicata since OS 92/1950-51 was

instituted under Section 92 of the CPC for settling a scheme. Para 10 of

the judgment of the Trial Court noted that the defendant has a prima facie

right to the suit property and that if the terms of the grant have not been

satisfied by the defendant, the trustees can take steps. Therefore, the

question of title was not conclusively decided. The issue that was

substantially in issue in OS No 92/1950-51 is not in issue in the instant

proceedings. The judgement of the High Court in appeal as well cannot be

read to mean that the suit schedule property belongs absolutely to Abdul

Khuddus;

7

AIR 1989 SC 1834
8
AIR 1991 SC 2234
9
AIR 1987 SC 88

10
PART C

(ii) A suit under section 92 CPC is filed as a representative suit and is not a

suit filed to vindicate the private right of an individual;

(iii) The compromise decree in OS 748/1968 did not declare the ownership of

Abdul Khuddus, the predecessor- in-interest of Defendants 1 to 4. It only

states that the second defendant would continue as the lessee of Abdul

Khuddus;

(iv) The present suit was instituted on behalf of the State Wakf Board prior to

the disposal of OS 100/1983 and was hence not barred; and

(v) The nature of the relief sought in the instant proceeding is different from

the relief sought in OS 92/1950-51. Jamia Masjid was not the plaintiff in

O.S No. 92/1950-51 and O.S No. 748/1968.

C. Proceedings before the High Court

8. A Special Leave Petition 10 was instituted before this Court by Defendants 1 to

4. By a judgment dated 30 August 2010, this Court remanded the proceedings back

to the High Court on the ground that the High Court had heard only one of the

defendant – caveators and that all the defendants were not represented before the

High Court. After remand, the High Court by its judgment dated 23 January 2012

dismissed the appeal for the following reasons:

(i) The ownership of the suit schedule property has been conclusively decided in

OS 92/1050-51 in favour of Abdul Khuddus;

10

SLP (C) No. 26047 of 2008

11
PART C

(ii) The judgment in a representative suit under Section 92 CPC binds the parties

to the suit and those who are interested in the Trust (R Venugopala Naidu

v. Venkatarayulu Naidu Charities 11);

(iii) When a suit is filed for determination of a scheme for administration of a

Trust, the court must primarily be satisfied that the property belongs to the

Trust. The court has the power under Section 92(e) and (cc) of the CPC to

order delivery of possession of the property to any person who is entitled to

possession;

(iv) If a declaration was made by Khazi Abdul Khuddus declaring the suit

property as a Wakf property in 1965, there is no explanation as to why the

plaintiff was silent till the filing of OS 100/1983; and

(v) An issue that was substantially decided by a competent court of limited

jurisdiction will operate as res judicata, though such court in view of its limited

jurisdiction would not be competent to try the subsequent suit (Sulochana

Amma v. Narayanan Nair 12).

9. The judgment obtained through a consent decree in OS 748/1968 was

intended to put the litigation to an end. It would thus operate as res judicata in the

subsequent suits.

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




11
     AIR 1990 SC 444
12
     (1994) 2 SCC 14)

                                                 12
                                                                                     PART D


D.           Submissions of the Parties

11. We have heard Ms V Mohana, learned Senior Counsel appearing on behalf of

the appellant and Mr Basava Prabhu Patil, learned Senior Counsel with Mr Balaji

Srinivasan, learned Counsel for the contesting respondents.

12. On behalf of the appellant, the following submissions have been urged:

(i) OS 92/1950-51

o The suit was instituted by Muslims in the locality interested in the proper

management of the mosque since Abdul Khuddus was trying to set up his

own title to the suit property;

o The suit was not for a declaration of title to the suit property and the

appellant was not a party to the suit. It was a suit seeking to set up a

scheme for the administration of the suit property;

o There was no final declaration that the suit property is a private property

belonging to Abdul Khuddus; and

o In a suit for settling a scheme under Section 92 of the CPC, the Court

possessed limited jurisdiction and could not have issued declaratory relief.

(ii) OS 748/1968

o The basis of the suit was that Abdul Khuddus by virtue of his office as a

khazi only has the right to the usufruct and the suit was instituted as an

unlawful construction was in place;

13
PART D

o A compromise memo was filed in the suit stating that the second

defendant would continue to remain as a tenant for some time and would

thereafter hand over peaceful possession to Abdul Khuddus;

o On 27 October 1969, a compromise petition was filed by the parties under

Order 23 Rule 1 CPC;

o The compromise decree neither concedes title of the suit property to

defendants nor does it create any new right in their favour; and

o The suit proceeded on the basis that Abdul Khuddus was only entitled to

the usufruct and the decree based on the compromise deed protected

possession without any adjudication of title.

(iii) OS 100/1983

o The suit was instituted by the Karnataka Wakf Board for a

permanent injunction, apprehending a sale at the instance of the

heirs of the Abdul Khuddus to defendants 1-4;

o The appellant was not a party to the suit;

o The suit was dismissed without costs after the plaintiff filed a memo

for dismissal; and

o Before the dismissal of the suit, the present suit which is a

comprehensive suit seeking declaration and possession had been

instituted.

In view of the above position, it was urged that the ingredients for the application of

the doctrine of res judicata have not been fulfilled. In summation, it was urged that:

14
PART D

(i) The issue of title to the suit schedule property has not been decided in any

of the three prior suits;

(ii) In view of notification No. MWB 19(11) dated 6 July 1965 the suit property

was notified as wakf property;

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

(iv) In the absence of a prior adjudication, the doctrine of res judicata would

not be attracted;

(v) The notification of the suit schedule property as a wakf was pursuant to a

declaration dated 28 April 1963 executed by Abdul Khuddus for the

general benefit of the community;

(vi) Once the property is constituted as a wakf, it would remain so in that

character and no objection to the notification was filed either by Abdul

Khuddus or by any person claiming through him; and

(vii) Without prejudice to the above submissions, the issue of res judicata

raises mixed questions of law and fact and, in any event, ought to have

been decided as a comprehensive issue pursuant to a full-fledged trial.

13. Opposing the above submissions, Mr Basava Prabhu Patil, learned Senior

Counsel submitted that:

(i) In the first suit – 92/1950-51 – there was a specific finding that the suit

schedule property was the personal property of Abdul Khuddus. Thus, the

court having conclusively decided on the title of the suit property, a

subsequent suit raising the same issue is barred by the principles of res

judicata;

15

PART E

(ii) In the second suit which was instituted by the State Wakf Board, there was

a prayer for declaration and possession. A compromise having been

arrived at on a portion of the reliefs claimed in the second suit (relating to

possession), this would necessarily amount to an abandonment of the

other reliefs. Once a compromise is arrived at, Order 23 Rule 3A bars the

maintainability of a subsequent suit;

(iii) The third suit was for a permanent injunction against alienation of the suit

property. This suit was dismissed as withdrawn; and

(iv) Jamia Masjid is seeking a declaration of the title on behalf of the Wakf

Board. The Wakf Board is not a party to the suit and its application for

being impleaded has been rejected.

E. The Analysis

14. The rival submissions now fall for analysis.

15. The primary issue is whether the suit – OS No. 149/1998 13 – which was

instituted by Jamia Masjid is barred by the principles of res judicata. In order to

analyse whether the doctrine of res judicata is attracted, it is necessary that we

decide on the plea with respect to the three prior suits:

      (i)        OS 92/1950-51;

      (ii)       OS 748/1968 and;

      (iii)      OS 100/1983.


13

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

16
PART E

16. Before analysing the three suits specifically, it is necessary that we visit the

jurisprudence on res judicata. Section 11 CPC states as follows:

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

[…]

Explanation IV.– Any matter which might and ought to have
been made ground of defence or attack in such former suit
shall be deemed to have been a matter directly and
substantially in issue in such suit.

Explanation V.– Any relief claimed in the plaint, which is not
expressly granted by the decree, shall for the purposes of this
section, be deemed to have been refused.

Explanation VI.– Where persons litigate bona fide in respect
of a public right or of a private right claimed in common for
themselves and others, all persons interested in such right
shall, for the purposes of this section, be deemed to claim
under the persons so litigating .

[…]
Explanation VIII.– An issue heard and finally decided by a
Court of limited jurisdiction, competent to decide such issue,
shall operate as res judicata in a subsequent suit,
notwithstanding that such Court of limited jurisdiction was not
competent to try such subsequent suit or the suit in which
such issue has been subsequently raised.]”

17. In order to attract the principles of res judicata, the following ingredients must

be fulfilled:

(i) The matter must have been directly and substantially in issue in the former

suit;

(ii) The matter must be heard and finally decided by the Court in the former

suit;

17

PART E

(iii) The former suit must be between the same parties or between parties

under whom they or any of them claim, litigating under the same title; and

(iv) The Court in which the former suit was instituted is competent to try the

subsequent suit or the suit in which such issue has been subsequently

raised.

18. In Syed Mohd. Salie Labbai (dead) by L.Rs v. Mohd. Hanifa (dead) by

L.Rs 14, Justice S Murtaza Ali speaking for a Bench of two judges observed that

before a plea of res judicata can be given effect, the following conditions must be

proved:

“7…
“(1) that the litigating parties must be the same;
(2) that the subject-matter of the suit also must be identical;

(3) that the matter must be finally decided between the
parties; and
(4) that the suit must be decided by a court of competent
jurisdiction.”

The Court noted that “the best method” to decide the question of res judicata is first

to determine the case of the parties as they are put forward in their respective

pleadings of their previous suits, and then to find out as to what had been decided

by the judgments which operate as res judicata. In that case, it was held that the

judgment in the previous suit was confined to two points:

(i) The plaintiffs claimed certain rights for the performance of ceremonies in

the properties and a share in the income accruing to the mosque from the

worshippers; and

14
(1976) 4 SCC 780

18
PART E

(ii) A claim, insofar as the graveyard was concerned for receiving pit fees for

burials. Consequently, it was held that the Trial court had not decided

upon either the public character of the mosque or the mode and manner or

the effect of the dedication of the site for the purpose of the mosque or the

graveyard.

E.1 Res Judicata as a Preliminary issue

19. Before we undertake an analysis on the applicability of the principles of res

judicata vis-à-vis the three suits that were initiated with regard to the suit property it

is necessary to discuss the submission of counsel for the appellant that res judicata,

being a mixed question of law and facts ought not to have been decided as a

preliminary issue by the trial court. It was contended that any determination of the

application of the principle of res judicata can only be made after evidence is

adduced pursuant to a full-fledged trial. For this purpose, reliance was placed on the

decision of a two judge bench of this court in Alka Gupta v. Narender Kumar

Gupta15 (“Alka Gupta”) authored by Justice RV Raveendran. In Alka Gupta, the

trial court had dismissed the subsequent suit on various preliminary grounds, one of

which was that the filing of the subsequent suit stood barred by res judicata.

However, on appeal, the two judge bench of this court held that the second suit was

not barred by res judicata:

“19. The learned Trial Bench passed the order on 13-3-2009
on the preliminary issue (Issue 1) relating to res judicata. But
there is absolutely no discussion in the order of the
learned Single Judge in regard to the bar of res judicata
except the following observation at the end of the order: “Of

15
(2010) 10 SCC 141

19
PART E

course it cannot be said that the present suit is barred by res
judicata inasmuch as the said claims were not decided in that
case. But the principle of constructive res judicata is
applicable.” This was not interfered by the Appellate Bench.
Both proceeded on the basis that the suit was not barred by
res judicata, but barred by principle of constructive res
judicata without assigning any reasons.

20. Plea of res judicata is a restraint on the right of a plaintiff
to have an adjudication of his claim. The plea must be
clearly established, more particularly where the bar
sought is on the basis of constructive res judicata. The
plaintiff who is sought to be prevented by the bar of
constructive res judicata should have notice about the
plea and have an opportunity to put forth his contentions
against the same. In this case, there was no plea of
constructive res judicata, nor had the appellant-plaintiff an
opportunity to meet the case based on such plea.
[…]

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

20. The finding of the trial judge on the applicability of the principles of res

judicata was set aside on the ground that the plea was not clearly established and

the plaintiff was not given the opportunity to contest the plea. Thus, in Alka Gupta

(supra), this court set aside the decision of the High Court on the above ground.

21. Order 14 Rule 2 CPC states that if questions of fact and law arise in the same

suit, the court can dispose the case on the question of law alone if it relates to the

following:

“(a) the jurisdiction of the Court, or

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

20
PART E

22. It has been held by this court that a determination of whether res judicata is

attracted raises a mixed question of law and facts. In Madhukar D. Shende 16 and

Ram Harakh 17, it was held that the plea of res judicata was a mixed question of law

and facts. In both the cases, the plea of res judicata was taken for the first time

before this Court. Justice K. Ramaswamy writing for a three judge bench of this

court in Sushil Kumar Mehta v. Gobind Ram Bohra 18 held that the principle of res

judicata cannot be fit into the pigeon hole of ‘mixed question of law and facts’ in

every case. Rather, the plea of res judicata would be a question of law or fact or a

mixed question of both depending on the issue that is claimed to have been

previously decided. The court while determining the applicability of the plea of res

judicata would determine if there has been any material alteration in the facts and

law applicable:

“26. The doctrine of res judicata under Section 11 CPC is
founded on public policy. An issue of fact or law or mixed
question of fact and law, which are in issue in an earlier suit
or might and ought to be raised between the same parties or
persons claiming under them and was adjudicated or allowed
uncontested becomes final and binds the parties or persons
claiming under them. Thus, the decision of a competent court
over the matter in issue may operate as res judicata in
subsequent suit or proceedings or in other proceedings
between the same parties and those claiming under them.

But the question relating to the interpretation of a statute
touching the jurisdiction of a court unrelated to questions of
fact or law or mixed questions does not operate as res
judicata even between the parties or persons claiming under
them. The reason is obvious; a pure question of law unrelated
to facts which are the basis or foundation of a right, cannot be
deemed to be a matter in issue. The principle of res judicata
is a facet of procedure but not of substantive law. The

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

21
PART E

decision on an issue of law founded on fact in issue would
operate as res judicata. But when the law has since the
earlier decision been altered by a competent authority or
when the earlier decision declares a transaction to be valid
despite prohibition by law it does not operate as res judicata.
Thus a question of jurisdiction of a court or of a procedure or
a pure question of law unrelated to the right of the parties
founded purely on question of fact in the previous suit, is not
res judicata in the subsequent suit. A question relating to
jurisdiction of a court or interpretation of provisions of a
statute cannot be deemed to have been finally determined by
an erroneous decision of a court. Therefore, the doctrine of
res judicata does not apply to a case of decree of nullity. If the
court inherently lacks jurisdiction consent cannot confer
jurisdiction. Where certain statutory rights in a welfare
legislation are created, the doctrine of waiver also does not
apply to a case of decree where the court inherently lacks
jurisdiction.”

23. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy19, the

application of the plaintiff in the Court of the Civil Judge for the determination of

Standard Rent under Section 11 of the Bombay Rents, Hotel and Lodging House

Rates Control Act 1947 was dismissed on the ground that the statute did not apply

to a case of open land let for the construction of buildings. This decision was

affirmed in appeal. However, in view of another decision of the Bombay High Court

which held that the statute would be applicable to leased land, the plaintiff filed a

fresh proceeding in the Court of Small Causes. The Trial Court and the High Court

held that the subsequent suit was barred by res judicata. However, Justice J C Shah

writing for a 3-judge bench held that the subsequent suit was not barred by res

judicata:

“5. But the doctrine of res judicata belongs to the domain of
procedure: it cannot be exalted to the status of a legislative

19
(1970) 1 SCC 613

22
PART E

direction between the parties so as to determine the question
relating to the interpretation of enactment affecting the
jurisdiction of a Court finally between them, even though no
question of fact or mixed question of law and fact and relating
to the right in dispute between the parties has been
determined thereby. A decision of a competent Court on a
matter in issue may be res judicata in another proceeding
between the same parties: the “matter in issue” may be an
issue of fact, an issue of law, or one of mixed law and
fact. An issue of fact or an issue of mixed law and fact
decided by a competent Court is finally determined
between the parties and cannot be re-opened between
them in another proceeding. The previous decision on a
matter in issue alone is res judicata: the reasons for the
decision are not res judicata.

[…]

11. The matter in issue, if it is one purely of fact, decided
in the earlier proceeding by a competent Court must in a
subsequent litigation between the same parties be
regarded as finally decided and cannot be reopened. A
mixed question of law and fact determined in the earlier
proceeding between the same parties may not, for the
same reason, be questioned in a subsequent proceeding
between the same parties. But, where the decision is on a
question of law i.e. the interpretation of a statute, it will be res
judicata in a subsequent proceeding between the same
parties where the cause of action is the same, for the
expression “the matter in issue” in Section 11 of the Code of
Civil Procedure means the right litigated between the parties
i.e. the facts on which the right is claimed or denied and the
law applicable to the determination of that issue. Where,
however, the question is one purely of law and it relates to the
jurisdiction of the Court or a decision of the Court sanctioning
something which is illegal, by resort to the rule of res judicata
a party affected by the decision will not be precluded from
challenging the validity of that order under the rule of res
judicata, for a rule of procedure cannot supersede the law of
the land.

(emphasis supplied)

The court while undertaking an analysis of the applicability of the plea of res

judicata determines first, if the requirements of section 11 CPC are fulfilled; and if

23
PART E

this is answered in the affirmative, it will have to be determined if there has been any

material alteration in law or facts since the first suit was decreed as a result of which

the principle of res judicata would be inapplicable. We are unable to accept the

submission of the appellants that res judicata can never be decided as a preliminary

issue. In certain cases, particularly when a mixed question of law or fact is raised,

the issue should await a full-fledged trial after evidence is adduced. In the present

case, a determination of the components of res judicata turns on the pleadings and

judgments in the earlier suits which have been brought on the record. The issue has

been argued on that basis before the Trial court and the first appellate court;

followed by two rounds of proceedings before the High Court (the second following

upon an order of remand by this court on the ground that all parties were not heard).

All the documentary material necessary to decide the issue is before the court and

arguments have been addressed by the contesting sides fully on that basis.

E.2 The Plea of Res Judicata and the three previous suits

24. We will now refer to the proceedings in the three suits to decide if the bar of

res judicata would be applicable in view of judgments in any of the previous suits.

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

25. OS 92/1950-51 was instituted by five residents of Gubbi town against the

Abdul Khuddus who was managing the mosque. The suit was instituted under the

provisions of Section 92 CPC to settle a scheme for the management of the mosque

since Abdul Khuddus was alleged to be misappropriating the funds accruing to the

24
PART E

mosque and was trying to set up his own title to the property of the mosque. The

reliefs which were sought in the suit were for

a. Settling a scheme for the administration of Jamia Masjid situated in Gubbi and

the management of its properties; and

b. Directing the defendant to render accounts in respect of the income and other

funds.

The schedule to the plaint contained six properties of which serial No. 2 (which

corresponds to the suit schedule property) is described thus:

“2. Dry land bearing Survey No.2, measuring 2 Acre 4
guntas, assessed at Rs.4 /- and situated in Gubbi
Village.”

26. The issues which were framed by the Trial Court were as follows:

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

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

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

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

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

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

(7) Is the court-fee is sufficient?

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

27. The 1st Additional District Judge decreed the suit in the following terms:

“14. …the suit is decreed directing the settlement of the
scheme towards the proper management of the Jamia Masjid
in Gubbi and for the due and proper administration suit
schedule items 1,4 and 5 subject to the observation made

25
PART E

above in respect of these Items 1,4 and 5 subject to the
observation made above in respect of these items. The
defendant shall pay costs of this suit in the plaintiffs.
Pleader’s fee Rs. 30/-“

28. In the course of the judgment, the District Judge discussed the evidence

adduced by both the parties and came to the prima facie finding that of the six suit

properties, the mosque did not have the title to two of the properties, namely, item 2

which is the suit property in the instant proceedings in OS 149/1998 and suit item 3.

Abdul Khuddus in his testimony as D.W.6 deposed that the mosque has nothing to

do with the lands (Item Nos. 2 and 3) given to him by the Government as Khazi

Inam. Considering that no proof to the contrary was adduced by the plaintiffs in the

suit, the District Judge recorded the following finding in paragraph 7:

“The plaintiffs have not produced anything to show that the
suit items 2 and 3 were granted or acquired for the mosque. It
must therefore be held that these two items are khazi
granted personally to the ancestors of the defendant they
do not form part of properties of the mosque.”
(emphasis supplied)

29. Significantly, after the above observation, the District Judge entered the

following finding in paragraph 10:

“10. In his written statement the defendant claimed all the suit
schedule immoveable as his own. But as observed before
the evidence discloses his prima facie right to only suit
schedule items 2 and 3. Those two items therefore be
considered as belonging to the mosque. It shall however be
open for the trustees to be appointed to take such steps as
may deems fit if they consider that in respect of those two
items (Items 2 and 3) the defendant has not satisfied the
terms of the grant.”
(emphasis supplied)

26
PART E

30. An appeal was filed by Abdul Khuddus before the High Court 20 assailing the

finding of the District Judge that items 1, 4 and 5 belonged to the mosque. In a

judgment dated 14 August 1989, the appeal was partly allowed with respect to items

1 and 5 with the following finding:

“The result is that this appeal is allowed in part. In substitution
of the decree made by Court below, we direct that the learned
District Judge will now settle a scheme for the due
administration of the mosque and its properties which are
items 1 and 5.”

31. OS 92/1950-51 was a representative suit filed under section 92 CPC,

specifically under clause (g), for settling the scheme of administration of the

mosque. It has been consistently contended by Abdul Khuddus that item 2 of the

suit schedule property was granted to him as a Khazi inam, and is thus not a

mosque property. In order to adjudicate on the applicability of the plea of res judicata

vis-à-vis the first suit, it is necessary that we decide on the following three issues:

A. The scope of the first suit which was instituted under Section 92 of the CPC;

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

and

C. Whether the issue of title over the suit property was conclusively decided in

the first suit.

E.2.1 Determination of title in a Representative suit

32. In Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai

Narsibhai 21, a three judge Bench of this Court explained the ambit of a

20
Regular Appeal No. 510 of 1954
21
AIR 1952 SC 143

27
PART E

representative suit under Section 92 of the CPC. In that case, one of the reliefs

sought was the declaration of the suit property as the religious and charitable trust

property of Kaivalya or Karuna Sagar Panth while the defendant contended that the

suit property was private property. Justice BK Mukherjea speaking for the Bench

expounded on the scope of a suit under section 92 CPC, particularly in view of the

relief seeking a declaration:

“10 A suit under S.92. Civil P.C. is a suit of a special nature
which presupposes the existence of a public trust of a
religious or charitable character. Such suit can proceed only
on the allegation that there is a breach of such trust or that
directions from the Court are necessary for the administration
thereof, and it must pray for one or other of the reliefs that
are specifically mentioned in the section. It is only when
these conditions pre fulfilled that the suit has got to be brought in
conformity with the provision of S.92, Civil P.C. As was observed
by the Privy Council in Abdul Rahil v. Md. Barkat Ali. 55 Ind, App.

96, P.C. a suit for a declaration that certain property appertains
to a religious trust may lie under the general law but is outside
the scope of S.92. Civil Procedure Code. In the case before us,
the prayers made in the plaint are undoubtedly appropriate to the
terms of Section 92 and the suit proceeded on the footing that
the defendant, who was alleged to be the trustee in respect of a
public trust, was guilty of breach of trust. The defendant denied
the existence of the trust and denied further that he was
guilty of misconduct or breach of trust. The denial could not
certainly oust the jurisdiction of the court, but when the
courts found concurrently, on the evidence adduced by the
parties, that the allegations of breach of trust were not made
out, and as it was not the case of the plaintiffs, that any
direction of the court was necessary for proper
administration of the trust, the very foundation of a suit
under Section 92 of the Civil Procedure Code became
wanting and the plaintiffs had absolutely no cause of action
for the suit they instituted. In these circumstances, the
finding of the High Court about the existence of a public
trust was wholly inconsequential and as it was unconnected
with the grounds upon which the case was actually
disposed of, it could not be made a part of the decree or the
final order in the shape of a declaratory relief in favour of
the plaintiffs. It has been argued by the learned Counsel for the
respondents that even if the plaintiffs failed to prove the other

28
PART E

allegations made in the plaint, they did succeed in proving that
the properties were public and charitable trust properties — a
fact which the defendant denied. In these circumstances, there
was nothing wrong for the court to give the plaintiffs a lesser
relief than what they actually claimed. The reply to this is, that
in a suit framed under Section 92 of the Civil Procedure
Code the only reliefs which the plaintiff can claim and the
court can grant are those enumerated specifically in the
different clauses of the section. A relief praying for a
declaration that the properties in suit are trust properties
does not come under any of these clauses. When the
defendant denies the existence of a trust, a declaration that
the trust does exist might be made as ancillary to the main
relief claimed under the section if the plaintiff is held
entitled to it; but when the case of the plaintiff fails for want of a
cause of action, there is no warrant for giving him a declaratory
relief under the provision of Section 92 of the Civil Procedure
Code. The finding as to the existence of a public trust in such
circumstances would be no more than an obiter dictum and
cannot constitute the final decision in the suit.”
(emphasis supplied)

33. Bhagwandasji (supra) lays down the following principles on the ambit of a

representative suit under section 92 CPC:

(i) The plaintiff can only seek reliefs that fall under any of the clauses in

section 92 CPC. A declaration that the suit property belongs to the trust,

does not fall under the scope of any of the reliefs enumerated in section 92

CPC and is outside the scope of the provision;

(ii) Merely because the defendant denies the title of the trust over the suit

property, the jurisdiction of the court cannot be ousted;

(iii) When the title of the trust is contested, a determination of the title of the

suit property is necessary for the purpose of adjudication on the final relief,

and thus it can be made ancillary to the main relief if the plaintiff is entitled

to the relief sought under Section 92 CPC; and

29
PART E

(iv) If the plaintiff is not entitled to the relief sought, then in that case no

determination on the title of the suit property can be made since it would

be inconsequential to the final decision in the suit.

On applying the principles evolved in Bhagwandasji (supra) to the facts of the

case, the relief sought in the first suit under section 92 CPC was for determination of

a scheme of management of the mosque. A determination of the title of the suit

property with respect to the mosque was ancillary to the main relief, under Section

92 of the CPC.

E.2.2 Representative Suit and Res judicata

34. We next advert to identifying if the parties in the instant proceedings (OS

149/1998) are the same as the first suit (OS 92/1950-51). The first suit was a

representative suit filed by interested parties of the Mosque-Jamia Masjid while the

instant suit was filed by the President of the Jamia Masjid in his representative

capacity. In Raje Anandrao v. Shamrao 22, Chief Justice PB Gajendragadkar (as he

then was) speaking for a two judge Bench of this Court said:

“13…a suit under Section 92 is a representative suit and binds
not only the parties thereto but all those who are interested in
the trust.”

35. In Ahmad Adam Sait v. M E Makhri 23, Chief Justice PB Gajendragadkar (as

he then was) speaking for a three judge Bench held:

“16…when a suit is brought under Section 92, it is brought
by two or more persons interested in the trust who have
taken upon themselves the responsibility of representing all

22
(1961) 3 SCR 930
23
(1964) 2 SCR 647

30
PART E

the beneficiaries of the Trust. In such a suit, though all the
beneficiaries may not be expressly impleaded, the action is
instituted on their behalf and relief is claimed in a
representative character. This position immediately attracts
the provisions of Explanation VI to Section 11 of the Code.

Explanation VI provides that where persons litigate bona fide
in respect of a public right or of a private right claimed in
common for themselves and others, all persons interested in
such right shall, for the purposes of this section, be deemed
to claim under the persons so litigating. It is clear that
Section 11 read with its Explanation VI leads to the result
that a decree passed in suit instituted by persons to which
Explanation VI applies will bar further claims by persons
interested in the same right in respect of which the prior suit
had been instituted. Explanation VI thus illustrates one
aspect of constructive res judicata. Where a representative
suit is brought under Section 92 and a decree is passed in
such a suit, law assumes that all persons who have the
same interest as the plaintiffs in the representative suit were
represented by the said plaintiffs and, therefore, are
constructively barred by res judicata from reagitating the
matters directly and substantially in issue in the said earlier
suit.”

The same principle was reiterated in R. Venugopala Naidu (supra). In a two judge

Bench decision in Shiromani Gurdwara Parbhandhak Committee v. Mahant

Harnam Singh C. (Dead) M.N. Singh 24, this Court held:

“19. As observed by this Court in R. Venugopala
Naidu v. Venkatarayulu Naidu Charities
[1989 Supp (2) SCC
356 : AIR 1990 SC 444] a suit under Section 92 CPC is a suit
of special nature for the protection of public rights in the
public trust and charities. The suit is fundamentally on behalf
of the entire body of persons who are interested in the trust. It
is for the vindication of public rights. The beneficiaries of the
trust, which may consist of the public at large, may choose
two or more persons amongst themselves for the purpose of
filing a suit under Section 92 CPC and the suit-title in that
event would show only their names as plaintiffs. Can we say
that the persons whose names are in the suit-title are the only
parties to the suit? The answer would be in the negative. The
named plaintiffs being the representatives of the public at

24
AIR 2003 SC 3349

31
PART E

large which is interested in the trust, all such interested
persons would be considered in the eyes of the law to be
parties to the suit. A suit under Section 92 CPC is thus a
representative suit and as such binds not only the parties
named in the suit-title but all those who share common
interest and are interested in the trust. It is for that reason that
Explanation VI to Section 11 CPC constructively bars by res
judicata the entire body of interested persons from reagitating
the matters directly and substantially in issue in an earlier suit
under Section 92 CPC.”

On a perusal of the above authorities it is evident that a representative suit is binding

on all the interested parties. Therefore, the judgment of the court in the first suit

would be binding on Jamia Masjid and would preclude it from instituting another suit

on the same issue if it has been conclusively decided. It is now to be analysed if the

substantive issue in the instant suit was conclusively decided in the first suit.

E.2.3 Conclusive decision and Res Judicata

36. The locus classicus on the point of determining if an issue was ‘directly and

substantially’ decided in the previous suit is the decision of Justice M Jagannadha

Rao (writing for a two judge bench) in Sajjadanashin Syed MD B.E. Edr. (D) by

Lrs. v. Musa Dadabhai Ummer. 25. During the course of the judgment, the Court

analysed the expression “directly and substantially in issue” in Section 11 and laid

down the twin test of essentiality and necessity:

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

25
(2000) 3 SCC 350

32
PART E

[…]

18. In India, Mulla has referred to similar tests (Mulla, 15th Edn.,
p. 104). The learned author says: a matter in respect of
which relief is claimed in an earlier suit can be said to be
generally a matter “directly and substantially” in issue but it does
not mean that if the matter is one in respect of which no relief is
sought it is not directly or substantially in issue. It may or may not
be. It is possible that it was “directly and substantially” in issue
and it may also be possible that it was only collaterally or
incidentally in issue, depending upon the facts of the case. The
question arises as to what is the test for deciding into which
category a case falls? One test is that if the issue was
“necessary” to be decided for adjudicating on the principal
issue and was decided, it would have to be treated as
“directly and substantially” in issue and if it is clear that the
judgment was in fact based upon that decision, then it
would be res judicata in a latter case (Mulla, p. 104). One has
to examine the plaint, the written statement, the issues and the
judgment to find out if the matter was directly and substantially in
issue (Ishwer Singh v. Sarwan Singh [AIR 1965 SC 948]
and Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC
780 : AIR 1976 SC 1569] ). We are of the view that the above
summary in Mulla is a correct statement of the law.

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

“It is not to be assumed that matters in respect of which issues
have been framed are all of them directly and substantially in
issue. Nor is there any special significance to be attached to the
fact that a particular issue is the first in the list of issues. Which
of the matters are directly in issue and which collaterally or
incidentally, must be determined on the facts of each case. A
material test to be applied is whether the court considers the
adjudication of the issue material and essential for its decision.”
(emphasis supplied)

37. Adverting to the decision in Mahant Pragdasji Guru Bhagwandasji (supra)

and two earlier decisions 26, the Court held that these were instances where in spite

of adverse findings in an earlier suit, the finding on that specific issue was not

treated as res judicata as it was purely incidental, auxiliary or collateral to the main

issue in each of these cases and not necessary in the earlier case.

26

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

33
PART E

38. In another decision in Gram Panchayat of Village Naulakha v. Ujagar

Singh 27, it has been held that the decision in an earlier suit for an injunction, where

no question of title was adjudicated upon will not be binding on the question of title:

“10. We may also add one other important reason which
frequently arises under Section 11 CPC. The earlier suit by
the respondent against the Panchayat was only a suit for
injunction and not one on title. No question of title was gone
into or decided. The said decision cannot, therefore, be
binding on the question of title. See in this
connection Sajjadanashin Sayed v. Musa Dadabhai
Ummer
[(2000) 3 SCC 350] where this Court, on a detailed
consideration of law in India and elsewhere held, that even if,
in an earlier suit for injunction, there is an incidental finding on
title, the same will not be binding in a later suit or proceeding
where title is directly in question, unless it is established that it
was “necessary” in the earlier suit to decide the question of
title for granting or refusing injunction and that the relief for
injunction was founded or based on the finding on title. Even
the mere framing of an issue on title may not be sufficient as
pointed out in that case.”

However, in Sajjadanashin Syed (supra), an earlier judgment in Sulochana

Amma (supra) and the Madras High Court’s judgment in Vanagiri 28 were referred to

in order to lay emphasis on the unique facts of each case and its importance for

determination of whether the issue was substantially decided. In both the referred

cases, the issue was whether the finding of title in an injunction suit would operate

as res judicata to a subsequent suit for declaration of title. While in Sulochana

Amma, it was held that by the doctrine of res judicata, the finding would bar the

subsequent suit, in Vanagiri, it was held that the title was not conclusively decided

and that the subsequent suit would not be barred. It was observed that the twin tests

27
(2000) 7 SCC 543
28
Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari, AIR 1965 Mad 355

34
PART E

of necessity and essentiality might lead to different conclusions on suits of a similar

nature based on the facts and circumstances in each of them.

39. In a more recent decision in Nand Ram (Dead) Through Legal

Representatives v. Jagdish Prasad (Dead) Through Legal Representatives 29, a

Bench of two judges reiterated the principle that if a matter has only collaterally or in

an auxiliary manner been in issue or decided in an earlier proceeding, the finding

would not ordinarily be res judicata in a later proceeding where the matter is directly

and substantially in issue. Justice Hemant Gupta (writing for a two judge bench)

noted that the material test to be applied is whether the adjudication of the issue is

material and essential for the decision. In Nand Ram, the land leased by the

plaintiffs to the defendants was acquired under the Land Acquisition Act, 1894. A

dispute arose on the apportionment of the compensation. The suit was decided

against the defendant on the ground that defendant did not pay the lease rent for

more than 12 months and thus according to the lease agreement, the lease had

come to an end. It was thus held that the defendant would not be entitled to the

compensation. Subsequently, the plaintiff filed an eviction suit asserting that the

defendant was in possession of the land that was not included in the lease deed.

The High Court in the second appeal held that the subsequent suit was barred by

res judicata since the former suit had conclusively decided on the title of the suit

property. On appeal, this court set aside the judgment of the High Court on the

ground that the issue of title was not conclusively decided in the former suit.

29

(2020) 9 SCC 393

35
PART E

40. In view of the authorities cited above, the twin test that is used for the

identification of whether an issue has been conclusively decided in the previous suit

is:

A. Whether the adjudication of the issue was ‘necessary’ for deciding on the

principle issue (‘the necessity test’); and

B. Whether the judgment in the suit is based upon the decision on that issue (‘the

essentiality test’).

On applying the necessity test to the case at hand, we will have to identify if the

decision on the principle issue of framing a scheme for the administration of the

Mosque could not have been arrived at without adjudication of the title of the suit.

The plaint contains two distinct allegations against the defendant, Abdul Khuddus: (i)

that he was misappropriating the funds of the mosque; and (ii) that he was setting up

his own title to the suit property. The defendant contested that the suit property

belonged to him. Therefore, since the title was contested, it was necessary that the

court in the first suit determine if the suit property belonged to the mosque to

adjudicate on the scheme of administration of the mosque. The contention that the

trial court could not have adjudicated on the title of the suit property in a

representative suit has already been addressed in the preceding section relying on

the case of Bhagwandasji (supra). On applying the essentiality test to the judgment

in the first suit, it has to be identified if the final decision rendered by the court in that

case would be altered if the issue on title was determined otherwise. Whether the

scheme for the administration of the mosque would also cover the suit property was

36
PART E

necessary for adjudication in the former suit. In the next section we shall explore

what precisely was the nature and import of the adjudication in the former suit.

E.2.3.1 Similarity in issue and Res Judicata

41. Apart from the issue whether the title to the suit property was conclusively

decided in the first suit, it is necessary that we identify if the matters in issue in the

former and the subsequent suits are the same. The first suit under Section 92 of the

CPC was for settling a scheme of administration of Jamia Masjid and the

management of its properties and the rendering of accounts of its funds and income

by the Defendant. In the subsequent suit, the prayer was for the declaration of the

suit property as a wakf property. In the first suit, it was held that the suit property

was ‘prima facie’ the property of Abdul Khuddus; that it was given to his forefathers

as a service inam, for his functions as a khazi. The cause of action in the

subsequent suit arose because the successors of Abdul Khuddus alienated the suit

property. The matters were adjudicated upon in the former suit are not the same as

those in the subsequent suit for two reasons: Firstly, there was a changed

circumstance resulting from the notification declaring the suit property as a wakf

property which was issued after the first suit was decreed; secondly, in the first suit,

which was essentially a suit for administration, the suit property was observed to

prima facie belong to Abdul Khuddus as a khazi inam.

42. The adjudication on the suit property was focussed around whether it

belonged to the mosque. Though the suit property was prima facie declared to not

belong to the mosque, it would not as a corollary mean that it was the personal

37
PART E

property of Khazi Abdul Khuddus over which he possessed an absolute or

inalienable right, particularly in view of his deposition that the property was given as

an inam to his forefathers for their services a Khazi. There was no discussion on

whether the suit property was a personal inam or an inam attached to the office;

there was no adjudication in the earlier suit on the terms of the grant. Thus, no

adjudication on the absolute title over the suit property was rendered in the former

suit. On reading together, the findings which have been arrived at in paragraph 7

and paragraph 10 of the judgment of the trial court in the first suit, it is evident that

the District Judge did not enter a conclusive finding that item 2 of the schedule to

that suit (which corresponds to the suit schedule property in the present case) was

the personal property of Abdul Khuddus. In fact, the use of the expression “prima

facie right” in paragraph 10 extracted above clearly indicates that there was no

conclusive finding in the judgment of the District Judge. The District Judge also

noted it would be open to the trust to take steps as they deem fit in respect of item 2

and item 3 of the Schedule in that suit, if the defendant had not fulfilled the terms

specified in the grant. Thus the finding on issue No 1 that schedule items 1, 4 and

15 belong to the mosque must specifically be read in the context of what has been

stated above. From the above analysis, it becomes clear that there was no

adjudication in the earlier suit that Abdul Khudus had an absolute title to the suit

property.

43. In view of the above discussion, the suit that gives rise to the instant

proceedings is not barred by the first suit for the following reasons:

38
PART E

(i) The court in the first suit was not ousted from determining if the suit

property belonged to the mosque while settling a scheme for

administration in a suit under Section 92 CPC;

(ii) The suit under Section 92 is of a representative character and the decree

would bind all persons interested in the Trust property;

(iii) There was a ‘prima facie’ finding in the former suit that the suit property

belonged to Abdul Khuddus; and

(iv) In the context of a suit for settling a scheme of administration, the issue in

the first suit was whether the suit property belonged to Jamia Masjid.

There was no adjudication or finding that Khazi Abdul Khuddus had

absolute title over the property, particularly in view of the deposition of

Abdul Khuddus that the property was given as a Khazi Inam, coupled with

the observation of the court that he had a ‘prima facie’ right over the

property. Therefore, the alleged claim of title of Abdul Khuddus was not

adjudicated. Thus, the matters which were in issue before the court in the

first suit and the instant proceedings are distinct.

II OS 748 of 1968: the second suit

44. The suit was instituted by the Mysore State Board of Wakf. Abdul

Khuddus and H.S. Gururajarao were impleaded as the first and second defendants

to the suit. The plaint contained the following averments:

(i) The suit property is a wakf property dedicated as a ‘Khazi Service Inam’.

People who perform the service of a Khazi are entitled to remain in

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PART E

possession of the service inam and to realise the usufruct after paying the

wakf fund;

(ii) Abdul Khuddus was entitled to remain in possession by virtue of his

office as Khazi, apart from which he had no right, title or interest;

(iii) The suit property had been notified as a wakf pursuant to enquiry. A

Gazette notification had been issued on 10 July 1965 notifying the suit

property as a wakf property;

(iv) The cause of action arose on 10 July 1965 when the illegal and forcible

occupation of the suit property by the second defendant came to the

knowledge of the plaintiff; and

(v) The reliefs sought were:

a. A declaration that the property constitutes a wakf;

b. A decree for possession of the suit property.

45. The second defendant filed a written statement stating that he was

prepared to pay rent in the event that the property was held to be wakf property.

A compromise petition was filed by the parties under Order 23 Rule 1 CPC on 27

October 1969 which envisaged that the second defendant shall continue to be

the lessee of the suit property till the expiry of the period of lease (end of May

1971) for which the lease amount shall to paid to first defendant. In the

alternative, if he desired to extend his lease thereafter, he could enter into a fresh

agreement of lease with the first defendant, failing which he would vacate after

40
PART E

demolition of the building. The suit was decreed on 27 October 1969 in terms of

the compromise petition. The basis and foundation in the second suit was that:

(i) The plea that the suit property is a wakf on the basis of which a

declaration was sought;

(ii) Abdul Khuddus was entitled to possession only in his capacity as a

khazi, the grant being a khazi service inam;

(iii) The property has been notified as a wakf in the Mysore State Gazette

on 10 July 1965 pursuant to a declaration of a wakf subscribed to by

Abdul Khuddus;

(iv) The compromise decree envisages that H.S. Gururajarao would pay the

rent to the first defendant and hand over possession of the suit property to

the first Defendant on the completion of the tenure of the lease. There is

no clause in the compromise deed that Abdul Khuddus had absolute title

to the property; and

(v) In the second suit, the State Wakf Board sought declaratory relief and a

decree for possession. A reading of the plaint would indicate that the

essential nature of the grievance was in respect of a lease granted to the

second defendant. The case of the Wakf Board was that the property had

been dedicated as a wakf and was notified in the Gazette as a wakf; Abdul

Khuddus was entitled by virtue of his office as khazi to the usufruct; and

the lease in favour of the second defendant would not bind the wakf

Board. The suit was compromised and the second defendant agreed to

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PART E

handover possession to the first defendant. No part of the claim was

abandoned on the question of title of Abdul Khuddus.

E.2.4 Compromise decree and Res Judicata

46. It is contended by the counsel for the appellant that since a compromise deed

was arrived at between the Mysore State Board of Wakf, Abdul Khuddus and the

lessee with regard to the possession of the suit property, the other reliefs have been

abandoned. It was thus contended that in view of the compromise deed, the claim of

title to the suit property has been abandoned and cannot be raised in the

subsequent suit. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao 30

and Sunderabai v. Devaji Shankar Deshpande 31, this Court held that since a

compromise decree is not a decision of the court, the principle of res judicata cannot

be made applicable. However, it was held that the compromise decree may in effect

create estoppel by conduct between the parties, and the parties by estoppel will be

prevented from initiating a subsequent suit. Chief Justice Bhagwati (as he was then)

writing for a three judge bench in Sunderabai observed:

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

“The present section does not apply in terms to consent
decrees; for it cannot be said in the cases of such decrees that
the matters in issue between the parties ‘have been heard and
finally decided’ within the meaning of this section. A consent
decree, however, has to all intents and purposes the same

30
AIR 1967 SC 591
31
AIR 1954 SC 82

42
PART E

effect as res judicata as a decree passed in invitum. It raises an
estoppel as much as a decree passed in invitum.”

Since it is the principle of estoppel by conduct that will bar the institution of the

subsequent suit, it is pertinent that we refer to the compromise decree to determine

if any compromise was arrived at between the parties on the title to the suit property.

On a perusal of the compromise deed, it is evident that a compromise was reached

only on the issue of possession and lease. When no compromise was arrived at

between the parties on the title to the suit property, then no estoppel by conduct

could also be inferred. Additionally, the counsel for the respondent referred to Order

23 Rule 3A to contend that a subsequent suit is barred when the previous suit is

dismissed through a compromise decree. However, the provision would not be

applicable to the case at hand since it only bars the challenge to a compromise

decree on the ground that it is unlawful. Therefore, the disposal of the second suit in

view of the compromise would not bar the filing of the suit out of which the instant

proceedings arise.

III. OS 100 of 1983: the third suit

47. The suit was instituted in the Court of Munsif at Gubbi by the Karnataka

Wakf Board. The defendants were Khazi Abdul Masood son of Abdul Khuddus (the

first defendant) while the second, third, fourth and fifth defendants were persons to

whom the property was sought to be alienated by the first defendant.

48. In was averred in the plaint that the cause of action arose when the first

defendant who had no right and interest in the suit schedule property was trying to

interfere with the possession of the plaintiff with the assistance of the second, third

43
PART E

and fourth defendants. The relief which was sought in the suit was a permanent

injunction restraining the defendants from interfering with the possession of the

plaintiff – Karnataka Board of Wakfs. The suit was instituted on 4 August 1983.

Significantly, the suit out of which the present dispute arises was instituted on 5

November 1984 for seeking declaration and possession. It was only thereafter on 22

November 1984 that OS 100 of 1983 was withdrawn. OS 100 of 1983 was a suit for

a bare injunction and no declaration was claimed. In any event there was no

adjudication on merits.

49. The third suit of 1983 instituted by the Karnataka Board of Wakfs was a suit

for injunction simpliciter. No question of title was raised and none was adjudicated

upon. As a matter of fact, the suit was instituted on the apprehension that the

property was likely to be alienated by the legal representatives of Abdul Khuddus.

Before the suit of 1983 was withdrawn, the suit out of which these proceedings arise

was instituted for seeking comprehensive reliefs in terms of a declaration of title and

a permanent injunction. Therefore, the decision in the third suit does not bar the

initiation of the suit out of which the instant proceeding arises.

50. The High Court dismissed the second appeal holding that the courts

conclusively decided on the title to the suit property in the first suit (OS 92/1950-51)

and that any subsequent suit on the same issue of title would be barred by the

principles of res judicata. In view of the discussion above, this finding arrived at by

the High Court is erroneous. While holding that the judgment in the first suit has

conclusively decided that the title over the suit property belongs to Abdul Khuddus,

the High Court has lost sight of the observations in paragraph 7 and 10 of the
44
PART E

judgment of the trial court. It has been specifically held there that the suit property

was a Khazi service Inam and that Abdul Khuddus has a prima facie right to the suit

property. There was no adjudication to the effect that Abdul Khuddus had an

absolute title to the suit property. Additionally, the decision of the courts in the first

suit was delivered before the suit property was notified as a wakf property in view of

Notification No. MWB 19(11) dated 6 July 1965. The principle of res judicata can

thus not be applied without taking into consideration this changed circumstance.

51. We are also of the opinion that the High Court has committed an error in

applying the principle of res judicata based on the judgment in the second suit. It

was observed by the High Court that the second suit that was decreed in terms of

the compromise was intended to put the litigation to an end and would thus bar any

subsequent suit on the title to the suit property by virtue of the principle of res

judicata. For this purpose, reliance was placed on a two judge bench decision of this

court in Byram Pestonji Gariwala (supra) where it was held that a challenge to a

consent decree six years later was vitiated by reason of delay, estoppel, and res

judicata. However, the High Court lost sight of the fact that the compromise deed

was entered into specifically with regard to the handing over of possession of the

suit property by the lessee at the end of the lease and no compromise on the title to

the suit property was arrived at.

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PART F

F. The Conclusion

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

(i) Issues that arise in a subsequent suit may either be questions of fact or of law

or mixed questions of law and fact. An alteration in the circumstances after

the decision in the first suit, will require a trial for the determination of the plea

of res judicata if there arises a new fact which has to be proved. However, the

plea of res judicata may in an appropriate case be determined as a

preliminary issue when neither a disputed question of fact nor a mixed

question of law or fact has to be adjudicated for resolving it;

(ii) While deciding on a scheme for administration in a representative suit filed

under Section 92 of the CPC the court may, if the title is contested, have to

decide if the property in respect of which the scheme for administration and

management is sought belongs to the Trust;

(iii) A suit under section 92 CPC is of a representative character and all persons

interested in the Trust would be bound by the judgment in the suit, and

persons interested would be barred by the principle of res judicata from

instituting a subsequent suit on the same or substantially the same issue;

(iv) Since the first suit (OS 92 of 1950-51) was filed by members interested in the

Jamia Masjid and the suit out of which the instant proceedings arise (OS 149

of 1998) was filed by the President of Jamia Masjid, the formulation in (iii)

above is satisfied;

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PART F

(v) There was no adjudication in the first suit (OS 92 of 1950-51) on whether

Abdul Khuddus had absolute title to the suit property. There was only a prima

facie determination that Items 2 and 3 of the schedule of properties to the first

suit belonged to Abdul Khuddus. The matters substantially in issue in OS 92

of 1950-51, which was a suit for administration and management of trust

properties and for accounts, are distinct from the issues in the suit out of

which the instant proceedings arise. Therefore, OS 149 of 1998 is not barred

by res judicata in view of the decision in the first suit;

(vi) While a compromise decree in a prior suit will not bar a subsequent suit by

virtue of res judicata, the subsequent suit could be barred by estoppel by

conduct. However, neither the compromise petition dated 27 October 1969

nor the final decree in the second suit dated 27 October 1969 indicate that a

compromise on the title to the suit property was arrived at. The compromise

was restricted to the issue of the erstwhile lessee handing over possession of

the suit property at the end of the lease; and

(vii) The third suit (OS 100/1983) was a suit for an injunction simpliciter. The third

suit was withdrawn after the suit out of which the instant proceeding arises

was filed for seeking a substantive declaration and an injunction. No

adjudication on the rights of the parties was made in the third suit.

53. For the above reasons, we allow the appeal and set aside the impugned

judgment and order of the High Court of Karnataka dated 23 January 2012 in RSA

2189 of 2007. OS 149 of 1998 is restored to the file of the Principal Civil Judge

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PART F

(Senior Division) Tumkur for trial. Having regard to the fact that the suit was

instituted in 1998, the Trial Judge is requested to dispose of the suit and to complete

trial within a period of one year from the date of the receipt of the certified copy of

this judgment. There shall be no order as to costs.

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

……..…….……………………………………….J
[Dr Dhananjaya Y Chandrachud]

…….…..…….………………………………….J
[Vikram Nath]

…….…..…….………………………………….J
[Hima Kohli]

New Delhi;

September 23, 2021

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