# THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS. & ORS

- **Citation:** [2021] 11 S.C.R. 672
- **Court:** Supreme Court of India
- **Decided:** 2021-09-23
- **Case number:** Civil Appeal No. 10946 of 2014
- **Bench:** Dr. Dhananjaya Y Chandrachud, Vikram Nath, Hima Kohli
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-jamia-masjid-v-sri-k-v-rudrappa-since-dead-by-lrs-ors-34770
- **Pages:** 48

## Headnote

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
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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.
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
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SUPREME COURT REPORTS
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[2021] 11 S.C.R. 672
672
THE JAMIA MASJID
v.
SRI K V RUDRAPPA (SINCE DEAD) BY LRS. & ORS.
(Civil Appeal No. 10946 of 2014)
SEPTEMBER 23, 2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND HIMA KOHLI, JJ.]
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
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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.
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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]
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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
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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
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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
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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
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'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;
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(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]
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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.
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Case Law Reference
[1993] 2 Suppl. SCR 520
referred to
Para 8(v)
[1976] 3 SCR 721
referred to
Para 18
[2010] 11 SCR 756
referred to
Para 19
[2002] 1 SCR 132
referred to
Para 22
[1989] 2 Suppl. SCR 149
referred to
Para 22
[1970] 3 SCR 830
relied on
Para 23
[1952] SCR 513
relied on
Para 32
[1964] 2 SCR 647
relied on
Para 35
[2000] 1 SCR 1095
relied on
Para 36
[2000] 3 Suppl. SCR 457
referred to
Para 38
[1964] SCR 310
referred to
Para 46
CIVIL APPELLATE JURISDICTION: Civil Appeal No.10946
of 2014.
From the Judgment and Order dated 23.01.2012 of the High Court
of Karnataka at Bangalore in R.S.A. No.2189 of 2007
Ms. V. Mohana, Sr. Adv., Gopal Singh, Abhishek Kaushik, R
Kothwal, M. Yogesh Kanna, Raja Rajeshwaran S., Advs. for the
Appellant.
Basava Prabhu Patil, Sr. Adv., Balaji Srinivasan, Shanmukhappa,
Ms. Shwetha Shanmukhappa, Prateek Yadav, Shahrukh Mohammed,
Ms. Aakriti Priya, Ms. Garima Jain, Ms. Pallavi Sengupta, Ashok Mathur,
Kumar Mihir, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
Index
A. The Facts
B.
Proceedings before the Courts
C.
Proceedings before the High Court
D. Submissions of the Parties
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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
1. A Single Judge of the High Court of Karnataka dismissed a
second appeal filed under Section 100 of the Code of Civil Procedure
19081, 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 suit2 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
1 "CPC"
2 O.S 149/1998
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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property for and on behalf of the Wakf Board. Abdul
Khuddus, was entitled to the usufruct of the property subject
to the condition precedent that he would perform his service
as a Khazi or Mutawalli. During his lifetime he hadgiven 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 thesuit 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 wasnotified 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 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. Allegationsof
mismanagement of the suit property were made against
them. The Chairman, D.W.C Tumkur recommended that
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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.
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 92/1950-513 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
Raoby Abdul Khuddus and not by the then Muzrai officer
3 "the first suit"
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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;
(iv)
OS 748/19684 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 100/19835 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 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
4 'the second suit"
5 "the third suit"
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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 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
6 R.A. 510/1954
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 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 Banerhee7;
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 Gwalior9 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.
7 AIR 1989 SC 1834
8 AIR 1991 SC 2234
9 AIR 1987 SC 88
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Therefore, the question of title was not conclusively decided.
The issue that was substantially in issue in OS No 92/195051 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;
(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- ininterest 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 Petition10 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;
(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
Charities11);
10 SLP (C) No. 26047 of 2008
11 AIR 1990 SC 444
THE JAMIA MASJID v. SRI K V RUDRAPPA (SINCE DEAD) BY LRS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(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 Nair12).
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.
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.