Code of Civil Procedure, 1908 – s.11 – Res judicata – Appellant-Jama Masjid Gubbi instituted a suit through its president seeking, inter alia, declaration that the State Wakf Board is the owner in possession of the suit property – The defendants (Nos. 24) raised the defence that the suit is barred by res judicata by virtue of decisions in three prior suits – It was stated in their written statement that suit property was a personal property of ‘AK’, predecessor of defendants (Nos. 5-9) and the claim of title of ‘AK’ was adjudicated in the earlier suits – The trial Court framed the issue of res judicata as a preliminary issue and held that the suit was barred by res judicata by virtue of suits instituted earlier – Appeal against the decree of the trial Court was dismissed by the District Court – The High Court held that the suit was not barred by res judicata and remanded the matter to the trial Court – In the SLP against the said judgment, the Supreme Court remanded the matter to the High Court – After remand, the High Court dismissed the appeal and held that the suit was barred by res judicata – On appeal, held: The first suit was instituted u/s.92 of CPC by five residents of the town against ‘AK’, who was managing the mosque – The relief sought, inter alia, was settling a scheme for administration and management of properties of the said mosque – There was no adjudication on whether ‘AK’ had absolute title to the suit property and the matter in issue in the first suit was distinct from issues in the instant suit – In the second suit the relief sought was a declaration that the property constitutes a wakf and a decree of possession of the suit property – The said suit was decreed on the basis of a compromised petition – The compromise was restricted to the issue of the erstwhile lessee handling over the possession of the suit property at the end of lease – The alleged claim of title of ‘AK’ was not adjudicated – The third suit was instituted by the Karnataka Board of wakfs for injunction simpliciter – It was withdrawn after the suit out of which the instant proceeding arises was filed for seeking a substantive declaration and an injunction – No adjudication on the rights of the parties was made in the third suit – The High Court committed error in applying the principle of res judicata – Therefore, the judgment and order of the High Court is set aside.
Allowing the appeal, the Court
HELD: 1. In order to attract the principles of res judicata, the following ingredients must be fulfilled:
(i)
The matter must have been directly and substantially in issue in the former suit;
(ii)
The matter must be heard and finally decided by the Court in the former suit;
(iii)
The former suit must be between the same parties or between parties under whom they or any of them claim, litigating under the same title; and
(iv)
The Court in which the former suit was instituted is competent to try the subsequent suit or the suit in which such issue has been subsequently raised. [Para 17][694-D-F]
Res Judicata as a Preliminary issue
2. It was contended that any determination of the application of the principle of res judicata can only be made after evidence is adduced pursuant to a full-fledged trial. The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. This Court unable to accept the submission of the appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis. [Para 23][699-G-H; 700-A-C]
The Plea of Res judicata and the three previous suits I. First Suit /OS 92/1950-51
3. OS 92/1950-51 was instituted by five residents of Gubbi town against the ‘AK’ who was managing the mosque. The suit was instituted under the provisions of Section 92 CPC to settle a scheme for the management of the mosque since ‘AK’ was alleged to be misappropriating the funds accruing to the mosque and was trying to set up his own title to the property of the mosque. [Para 25][700-D-E]
4. Bhagwandasji lays down the following principles on the ambit of a representative suit under section 92 CPC:
(i) The plaintiff can only seek reliefs that fall under any of the clauses in section 92 CPC. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in section 92 CPC and is outside the scope of the provision; (ii) Merely because the defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted; (iii) When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the plaintiff is entitled to the relief sought under Section 92 CPC; and (iv) If the plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit. [Para 33] [704-F-H; 705-A-B]
4.1 On applying the principles evolved in Bhagwandasji to the facts of the case, the relief sought in the first suit under section
92 CPC was for determination of a scheme of management of the mosque. A determination of the title of the suit property with respect to the mosque was ancillary to the main relief, under Section 92 of the CPC. [Para 33][705-C-D]
5. The twin test that is used for the identification of whether an issue has been conclusively decided in the previous suit is: A. Whether the adjudication of the issue was ‘necessary’ for deciding on the principle issue (‘the necessity test’); and B. Whether the judgment in the suit is based upon the decision on that issue (‘the essentiality test’). On applying the necessity test to the case at hand, it has to be identified if the decision on the principle issue of framing a scheme for the administration of the Mosque could not have been arrived at without adjudication of the title of the suit. The plaint contains two distinct allegations against the defendant, ‘AK’: (i) that he was misappropriating the funds of the mosque; and (ii) that he was setting up his own title to the suit property. The defendant contested that the suit property belonged to him. Therefore, since the title was contested, it was necessary that the court in the first suit determine if the suit property belonged to the mosque to adjudicate on the scheme of administration of the mosque. The contention that the trial court could not have adjudicated on the title of the suit property in a representative suit has already been addressed in the preceding section relying on the case of Bhagwandasji. On applying the essentiality test to the judgment in the first suit, it has to be identified if the final decision rendered by the court in that case would be altered if the issue on title was determined otherwise. Whether the scheme for the administration of the mosque would also cover the suit property was necessary for adjudication in the former suit. In the next section we shall explore what precisely was the nature and import of the adjudication in the former suit. [Para 40][710-E-H; 711-A-C]
6. The adjudication on the suit property was focussed around whether it belonged to the mosque. Though the suit property was prima facie declared to not belong to the mosque, it would not as a corollary mean that it was the personal property of Khazi ‘AK’ over which he possessed an absolute or inalienable right, particularly in view of his deposition that the property was given as an inam to his forefathers for their services a Khazi. There was no discussion on whether the suit property was a personal inam or an inam attached to the office; there was no adjudication in the earlier suit on the terms of the grant. Thus, no adjudication on the absolute title over the suit property was rendered in the former suit. On reading together, the findings which have been arrived at in paragraph 7 and paragraph 10 of the judgment of the trial court in the first suit, it is evident that the District Judge did not enter a conclusive finding that item 2 of the schedule to that suit (which corresponds to the suit schedule property in the present case) was the personal property of ‘AK’. In fact, the use of the expression “prima facie right” in paragraph
10 extracted above clearly indicates that there was no conclusive finding in the judgment of the District Judge. The District Judge also noted it would be open to the trust to take steps as they deem fit in respect of item 2 and item 3 of the Schedule in that suit, if the defendant had not fulfilled the terms specified in the grant. Thus the finding on issue No 1 that schedule items 1, 4 and 15 belong to the mosque must specifically be read in the context of what has been stated above. From the above analysis, it becomes clear that there was no adjudication in the earlier suit that ‘AK’ had an absolute title to the suit property. [Para 42][711-G-H; 712-A-D]
7. Thus, the suit that gives rise to the instant proceedings is not barred by the first suit for the following reasons:
(i) The court in the first suit was not ousted from determining if the suit property belonged to the mosque while settling a scheme for administration in a suit under Section 92 CPC; (ii) The suit under Section 92 is of a representative character and the decree would bind all persons interested in the Trust property;
(iii) There was a ‘prima facie’ finding in the former suit that the suit property belonged to ‘AK’; and (iv) In the context of a suit for settling a scheme of administration, the issue in the first suit was whether the suit property belonged to Jamia Masjid. There was no adjudication or finding that Khazi ‘AK’ had absolute title over the property, particularly in view of the deposition of ‘AK’ that the property was given as a Khazi Inam, coupled with the observation of the court that he had a ‘prima facie’ right over the property. Therefore, the alleged claim of title of ‘AK’ not adjudicated. Thus, the matters which were in issue before the court in the first suit and the instant proceedings are distinct. [Para 43][712-E-H; 713-A-B]
II. Second Suit/OS 748 of 1968
8. The suit was instituted by the Mysore State Board of Wakf. ‘AK’ and HSG were impleaded as the first and second defendants to the suit. The plaint contained the following averments: (i) The suit property is a wakf property dedicated as a ‘Khazi Service Inam’. People who perform the service of a Khazi are entitled to remain in possession of the service inam and to realise the usufruct after paying the wakf fund; (ii) ‘AK’ was entitled to remain in possession by virtue of his office as Khazi, apart from which he had no right, title or interest;(iii) The suit property had been notified as a wakf pursuant to enquiry. A Gazette notification had been issued on 10 July 1965 notifying the suit property as a wakf property; (iv) The cause of action arose on 10 July 1965 when the illegal and forcible occupation of the suit property by the second defendant came to the knowledge of the plaintiff; and (v) The reliefs sought were: A declaration that the property constitutes a wakf and a decree for possession of the suit property. [Para 44][713-B-G]
9. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao and Sunderabai v. Devaji Shankar Deshpande, this Court held that since a compromise decree is not a decision of the court, the principle of res judicata cannot be made applicable. However, it was held that the compromise decree may in effect create estoppel by conduct between the parties, and the parties by estoppel will be prevented from initiating a subsequent suit. Since it is the principle of estoppel by conduct that will bar the institution of the subsequent suit, it is pertinent that we refer to the compromise decree to determine if any compromise was arrived at between the parties on the title to the suit property. On a perusal of the compromise deed, it is evident that a compromise was reached only on the issue of possession and lease. When no compromise was arrived at between the parties on the title to the suit property, then no estoppel by conduct could also be inferred. Additionally, the counsel for the respondent referred to Order 23 Rule 3A to contend that a subsequent suit is barred when the previous suit is dismissed through a compromise decree. However, the provision would not be applicable to the case at hand since it only bars the challenge to a compromise decree on the ground that it is unlawful. Therefore, the disposal of the second suit in view of the compromise would not bar the filing of the suit out of which the instant proceedings arise. [Para 46][715-A-B, F-H; 716-A]
III. Third Suit/OS 100 of 1983
10. The third suit of 1983 instituted by the Karnataka Board of Wakfs was a suit for injunction simpliciter. No question of title was raised and none was adjudicated upon. As a matter of fact, the suit was instituted on the apprehension that the property was likely to be alienated by the legal representatives of ‘AK’. Before the suit of 1983 was withdrawn, the suit out of which these proceedings arise was instituted for seeking comprehensive reliefs in terms of a declaration of title and a permanent injunction. Therefore, the decision in the third suit does not bar the initiation of the suit out of which the instant proceeding arises. [Para 49][716-E-G]
11. The High Court dismissed the second appeal holding that the courts conclusively decided on the title to the suit property in the first suit (OS 92/1950-51) and that any subsequent suit on the same issue of title would be barred by the principles of res judicata. In view of the discussion above, this finding arrived at by the High Court is erroneous. While holding that the judgment in the first suit has conclusively decided that the title over the suit property belongs to ‘AK’, the High Court has lost sight of the observations in paragraph 7 and 10 of the judgment of the trial court. It has been specifically held there that the suit property was a Khazi service Inam and that ‘AK’ has a prima facie right to the suit property. There was no adjudication to the effect that ‘AK’ had an absolute title to the suit property. Additionally, the decision of the courts in the first suit was delivered before the suit property was notified as a wakf property in view of Notification No. MWB 19(11) dated 6 July 1965. The principle of res judicata can thus not be applied without taking into consideration this changed circumstance. [Para 50][716-G-H; 717-A-C]
12. The High Court has committed an error in applying the principle of res judicata based on the judgment in the second suit. It was observed by the High Court that the second suit that was decreed in terms of the compromise was intended to put the litigation to an end and would thus bar any subsequent suit on the title to the suit property by virtue of the principle of res judicata. For this purpose, reliance was placed on a two judge bench decision of this court in Byram Pestonji Gariwala where it was held that a challenge to a consent decree six years later was vitiated by reason of delay, estoppel, and res judicata. However, the High Court lost sight of the fact that the compromise deed was entered into specifically with regard to the handing over of possession of the suit property by the lessee at the end of the lease and no compromise on the title to the suit property was arrived at. [Para 51][717-C-E]
13. In view of the discussion, findings are summarised below:
(i) Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res judicata if there arises a new fact which has to be proved. However, the plea of res judicata may in an appropriate case be determined as a preliminary issue when neither a disputed question of fact nor a mixed question of law or fact has to be adjudicated for resolving it;
(ii) While deciding on a scheme for administration in a representative suit filed under Section 92 of the CPC the court may, if the title is contested, have to decide if the property in respect of which the scheme for administration and management is sought belongs to the Trust;
(iii) A suit under section 92 CPC is of a representative character and all persons interested in the Trust would be bound by the judgment in the suit, and persons interested would be barred by the principle of res judicata from instituting a subsequent suit on the same or substantially the same issue;
(iv) Since the first suit (OS 92 of 1950-51) was filed by members interested in the Jamia Masjid and the suit out of which the instant proceedings arise (OS 149 of 1998) was filed by the President of Jamia Masjid, the formulation in (iii) above is satisfied;
(v) There was no adjudication in the first suit (OS 92 of 1950-51) on whether ‘AK’ had absolute title to the suit property. There was only a prima facie determination that Items 2 and 3 of the schedule of properties to the first suit belonged to ‘AK’. The matters substantially in issue in OS 92 of 1950-51, which was a suit for administration and management of trust properties and for accounts, are distinct from the issues in the suit out of which the instant proceedings arise. Therefore, OS 149 of 1998 is not barred by res judicata in view of the decision in the first suit;
(vi) While a compromise decree in a prior suit will not bar a subsequent suit by virtue of res judicata, the subsequent suit could be barred by estoppel by conduct. However, neither the compromise petition dated 27 October 1969 nor the final decree in the second suit dated 27 October 1969 indicate that a compromise on the title to the suit property was arrived at. The compromise was restricted to the issue of the erstwhile lessee handing over possession of the suit property at the end of the lease; and
(vii) The third suit (OS 100/1983) was a suit for an injunction simpliciter. The third suit was withdrawn after the suit out of which the instant proceeding arises was filed for seeking a substantive declaration and an injunction. No adjudication on the rights of the parties was made in the third suit. [Para 52] [717-F-H; 718-A-H; 719-A]
Mathura Prasad Bajoo Jaiswal v. Dossibai N.B
Jeejeebhoy (1970) 1 SCC 613 : [1970] 3 SCR 830; Mahant Pragdasji Guru Bhagwandasji v. Patel
Ishwarlalbhai Narsibhai AIR 1952 SC 143 : [1952] SCR 513; Raje Anandrao v. Shamrao (1961) 3 SCR 930; Ahmad Adam Sait v. M E Makhri (1964) 2 SCR 647; Shiromani Gurdwara Parbhandhak Committee v. Mahant Harnam Singh C. (Dead) M.N. Singh AIR 2003 SC 3349; Sajjadanashin Syed MD B.E. Edr. (D) by Lrs. v. Musa Dadabhai Ummer (2000) 3 SCC 350 : [2000]
1 SCR 1095; Sunderabai v. Devaji Shankar Deshpande AIR 1954 SC 82 – relied on.
Provash Chandra Daluj v. Biswanath Banerhee AIR 1989 SC 1834; Byram Pestonji Gariwala v. Union Bank of India AIR 1991 SC 2234; Sarguja Transport Service v. S.T.A.T Gwalior AIR 1987 SC 88; R Venugopala Naidu v. Venkatarayulu Naidu Charities AIR 1990 SC 444; Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14:[1993] 2 Suppl. SCR 520; Syed Mohd. Salie Labbai
(dead) by L.Rs v. Mohd. Hanifa (dead) by L.Rs. (1976)
4 SCC 780 : [1976] 3 SCR 721; Alka Gupta v. Narender Kumar Gupta (2010) 10 SCC 141 : [2010] 11 SCR 756; Madhukar D Shende v. Tarabai Aba Shedage (2002) 2 SCC 85 : [2002] 1 SCR 132; Ram Harakh v. Hamid Ahmed Khan & Ors., (1998) 7 SCC 484 : 1998 (9) JT 227; Sushil Kumar Mehta v. Gobind Ram Bohra (1990)
1 SCC 193 : [1989] 2 Suppl. SCR 149; Run Bahadur Singh v. Lucho Koer, ILR (1885) 11 Cal 301; Asrar Ahmed v. Durgah Committee AIR 1947 PC 1; Gram
Panchayat of Village Naulakha v. Ujagar Singh (2000)
7 SCC 543:[2000] 3 Suppl.SCR 457; Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari AIR 1965 Mad 355; Nand Ram (Dead) Through Legal Representatives v. Jagdish Prasad (Dead) Through Legal Representatives (2020) 9 SCC
393 : 2020 (4) JT 91; Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao AIR 1967 SC 591:[1964] SCR 310 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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