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CASE NO.:

Appeal (civil) 6246 of 1998

PETITIONER:

Commissioner of Endowments & Ors.

RESPONDENT:

Vittal Rao & Ors.

DATE OF JUDGMENT: 25/11/2004

BENCH:

SHIVARAJ V. PATIL & B.N. SRIKRISHNA

JUDGMENT:

J U D G M E N T

Shivaraj V. Patil J.

In this appeal, the order dated 21.10.1998 made by

the Division Bench of the High Court in Writ Appeal No. 429

of 1998 is under challenge. Parties are before this Court for

the third time in relation to the same subject matter.

One Fauzdar Khan donated 5 bighas of land situated

at Hyderabad to one Gunnaji, the ancestor of the

respondent no. 1 for the purpose of construction of a

temple, now known as Sri Jangli Vittobha Temple. Gunnaji

died and after his death, his sister Suguna Bai completed

the construction of the temple. In 1939, one Golakishan

Gir claiming himself to be the Mutawalli of the temple,

mismanaged its affairs. The Government having come to

know about the same, constituted a committee under Rule

156 of Andhra Pradesh (Telangana Areas) Wakf Rules.

Manik Rao, father of the respondent no. 1, applied to the

Registration Officer in 1962 for transfer of Towliatship of

temple in his name. The Registration Officer (the Assistant

Secretary of Board of Revenue) after holding inquiry by the

order dated 15.1.1964 held that said Manik Rao was the

rightful claimant to the Towliatship and consequently

ordered for amendment of Column No. 11 of Munthakab

under Section 36(c) of Hyderabad Endowment Rules.

Aggrieved by this order, the temple committee filed an

appeal to the Director of Endowments, who, by his order

dated 29.10.1966, confirmed the aforementioned order

dated 15.1.1964. The temple committee pursued the

matter further by filing a revision petition before the

Government assailing the order dated 29.10.1966 made by

the Director of Endowments. The revision petition was

allowed and the order of the Director of Endowments

affirming the order of the Registration Officer was set aside

as is evident by G.O. Rt. No. 680 dated 17.06.1971. It is

against this G.O. that Manik Rao filed a suit O.S. No.

509/1971 in the City Civil Court, Hyderabad, for declaration

that he was the hereditary Mutawalli of the temple; for

perpetual injunction against the authorities and individuals,

restraining them from interfering with his Towliatship and

from constituting or reconstituting any committee for the

temple and for setting aside the said G.O. dated 17.6.1971.

The trial court dismissed the suit. The appeal No. A.S. No.

199/77 filed against the judgment and decree of the trial

court was allowed by the first appellate court by its

judgment and decree dated 22.12.1978, which decreed the

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suit of Manik Rao granting the relief as sought for in the

said suit. The temple committee preferred second appeal

being S.A. No. 122/79 in the High Court against the

judgment dated 22.12.1978 aforementioned made by the

first appellate court. It may be stated here itself that

neither the Government nor the Commissioner of

Endowments (defendants 1 and 2 respectively) filed second

appeal challenging the judgment and decree passed by the

first appellate court in favour of Manik Rao. Although they

were respondents 2 and 3 in the second appeal No. 122/79

filed by the temple committee, they did not participate. In

other words, they did not put forth any plea before the High

Court. The High Court dismissed the said second appeal on

2.7.1979 concurring with the findings recorded by the first

appellate court and affirming the decree passed by it. The

High Court held that the land in question was gifted

absolutely to Gunnaji and that the Government could not

claim any interest in it. The State of Andhra Pradesh and

the Temple Committee acting through its Chairman,

approached this Court by filing SLPs questioning the validity

and correctness of judgment and decree passed by the High

Court in the second appeal. This Court dismissed C.A. Nos.

702/80 & 703/80 on 12.8.1987 after granting leave in the

SLPs. Thus, the judgment and decree passed in favour of

Manik Rao by the first appellate court in A.S. No. 199/77

attained finality.

About two years later, the Commissioner of

Endowments, Govt. of Andhra Pradesh (appellant No. 1), by

his letter dated 14.6.89 addressed to the Principal

Secretary, Deptt. Of Revenue, Andhra Pradesh gave a

detailed report seeking permission to compromise the

dispute in the best interest of the temple. In response to

the said letter, Joint Secretary to the Government by

Memorandum dated 27.10.89 stated that a compromise

might be made on certain terms.

The Assistant commissioner of Endowments issued

instructions dated 16.1.1990 to the tenants of the temple

property to pay the rents due, to Vittal Rao, the respondent

no. 1 herein as the entire property had been declared as his

private property by virtue of the decree passed by the civil

court in A.S. No. 199/77 but the Deputy Commissioner of

Endowments by his order dated 15.6.1990 set aside the

instructions dated 16.1.1990 given by the Assistant

Commissioner of Endowments inter alia stating that the

terms of compromise mentioned in the Government

Memorandum dated 27.10.1989 issued by the Joint

Secretary had not been reduced into a deed of compromise.

Consequently, the Assistant Commissioner withdrew his

instructions dated 16.1.1990 and directed the tenants to

comply with the order of the Deputy Commissioner dated

15.6.1990. Thereafter on 25.6.1990, the Commissioner of

Endowments appointed an Executive Officer for the

management of the temple. The respondent no. 1 Vittal

Rao filed writ petition No. 8970/90 in the High Court to

quash the order of the Deputy Commissioner dated

15.6.1990 and that of the Commissioner dated 25.6.1990

aforementioned. The respondents 2 to 5 got impleaded as

party-respondents in the above writ petition claiming to be

interested persons. In the said writ petition, the

respondents 1-3, (Officers of the Endowment Department)

filed W.P.M.P. No. 15438/95 seeking direction to appoint an

Executive Officer to manage the affairs of the temple and

permit the officer to conduct the yearly festivals pending

disposal of the writ petition. The writ petitioner

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(respondent no. 1 herein) filed a counter affidavit stating

that he was ready to accept the terms of compromise

suggested in the Govt. Memo dated 27.10.1989. Learned

Single Judge by his order dated 17.10.1995 disposed of the

writ petition on the submission of the learned counsel for

both parties that the writ petition may be disposed of by

recording the said terms of the compromise contained in

Government Memorandum dated 27.10.1989 and the

learned Judge further directed to implement the terms of

the compromise within four weeks from the date of the

order. The respondent Nos. 1 to 3 of the Endowments

Department (appellants Nos. 1 to 3 herein) in the writ

petition did not file any appeal against the aforementioned

order of the learned Single Judge made in the writ petition

but the private respondents 5-8, who were impleaded

subsequently in the writ petition, contending to be the

purchasers of the land, filed writ appeal No. 1536/95. The

Division Bench of the High Court by the order dated

13.1.1997 held that the appellants in the writ appeal having

not represented themselves in the earlier proceedings when

the matter came up to the Supreme Court, the decision of

the Supreme Court had become final in the matter and that

in case they have any other right over the property, they

have to approach the civil court. Thus, the order passed by

the learned Single Judge on 17.10.1995 passed in the writ

petition was confirmed by the High Court in the writ appeal.

When the aforementioned writ appeal was pending,

some individuals claiming to be devotees of the temple,

filed W.P. No. 2830/96 claiming to espouse public interest

inter alia to declare the Memo of the Government dated

27.10.1989 (suggesting compromise) as illegal and

arbitrary and to direct the Endowments Department to

remove the respondent no. 1 from the post of hereditary

trusteeship of the temple. The Division Bench of the High

Court dismissed the said writ petition on 21.2.1997.

It is thereafter that the Govt. of Andhra Pradesh,

which was not a party to the writ appeal No. 1536/95,

sought review of the order made in Writ Appeal No. 1536 of

1995 in RWAMP No. 2435/97 contending that despite

permission granted to the Commissioner to enter into

compromise by virtue of the Government Memorandum

dated 27.10.1989, no compromise was in fact entered into

and therefore, it was unenforceable and that the proposal

for compromise was wrongly interpreted in earlier

judgments and that too on a wrong translation of the gift

deed. The Division Bench of the High Court, by its order

dated 12.11.1997 dismissed the review petition taking a

view that the earlier Supreme Court judgment in C.A. Nos.

702/80 and 703/80 attained finality so far as the

construction of gift deed made in favour of Manik Rao is

concerned and that issue could not be re-opened. On the

same day, the High Court rendered a judgment in the

contempt case filed by Vittal Rao against the government

and impleaded parties alleging that they had violated the

earlier judgment of the Court in Writ Appeal No.

1536/1995. The Court did not proceed with the contempt

petition stating that the Govt. had stated that they would

abide by the orders of the Court in the review petition and

in the contempt case. A further direction was given that

the order made in Writ Appeal No. 1536/95 be implemented

within two months by taking into consideration the

observations made by the Court in review petition. As

against the judgment in the review petition, the

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Commissioner of Endowments and others filed special leave

petition No. 22746/97. The said SLP was disposed of by

this Court in the following terms:-

"The learned Senior Counsel for the petitioner

after some arguments seeks leave to withdraw

this Special Leave Petition with a view to filing

appropriate proceedings for challenging the

consent order in a writ petition which according

to him was a nullity as being fraudulent and

contrary to law. The SLP stands dismissed as

withdrawn."

It is thereafter the present appellants filed Writ Appeal

No. 429/98. There was delay of 739 days in filing the writ

appeal which was condoned. The Division Bench of the

High Court, by the impugned judgment, dismissed the writ

appeal on considerations of the material on record and

accepting the preliminary objections raised by the

respondent no. 1. The Division Bench also held that the

Government could not go back on its assurance given in the

contempt case. Hence, this appeal.

Shri P.P. Rao, learned senior counsel for the

appellants in support of the appeal, urged the following

contentions: -

1. The Division Bench of the High Court having condoned

the delay in filing the writ appeal ought to have set aside

the compromise said to have been arrived at between the

parties. There was no concluded compromise in writing

signed by the parties or their authorized representatives,

but there was only proposal for compromise yet to be acted

upon by the Commissioner in the manner suggested by the

Government in its Memorandum dated 27.10.1989; the

proposed terms of compromise having been rejected by

respondent No. 1, they ceased to exist in the eye of law;

after filing of writ petition 8970 of 1990 containing serious

misrepresentations of facts and before the same could be

adjudicated and their falsity exposed of by the appellants

the respondent No. 1 approached the High Court with a

request that the writ petition may be disposed of recording

the said compromise as per the Government Memorandum

dated 27.10.1989 and got the order in the writ petition

taking the advantage of the absence of the Advocate

General at the hearing.

2. The Division Bench of the High Court committed an

error in not considering the effect of Sections 14, 16, 42,

80(1)(a) and (b) and Section 87 of the Andhra Pradesh

Charitable and Hindu Religious Institutions and

Endowments Act, 1987 (for short 'the Act'); the Division

Bench ought to have examined the legality of the alleged

compromise in the light of these provisions as the illegality

was writ large in the proposed terms of compromise.

3. Not only the Government required the Commissioner

of Endowment to see that the above mentioned terms were

reduced into a deed of compromise by the parties but Order

XXIII Rule 3 CPC also required the compromise to be in

writing and signed by the parties; no court could accept the

compromise, which was not in writing and not signed by the

parties; therefore, the order of the learned single Judge

accepting the compromise not signed by the parties was in

violation of Order XXIII Rule 3 CPC and consequently it was

void. Rule 24 of the A.P. Writ Proceedings Rules, 1977

makes the provisions of Order XXIII Rule 3 CPC applicable

to the proceedings under Article 226 of the Constitution of

India.

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4. Having noted the submission of the Advocate General

that he did not appear before the learned single Judge, who

disposed of the writ petition in terms of the alleged

compromise, the Division Bench out to have ascertained the

facts as to who appeared for the official respondent Nos. 1

to 4 when the writ petition was disposed of; a concession

made by the counsel on the question of law is not binding

on the parties; Section 96(3) of CPC is no bar for

challenging the consent order on the ground of illegality

and/or fraud.

5. The learned single Judge, who disposed of the second

appeal No. 122/1979 on 2.7.1979, made the following

observations: -

"As pointed out by the lower appellate

Court, Ex. A-I shows that the land was

gifted absolutely to Gunnaji. The

Government cannot claim any interest in

the land. The fact that Gunnaji's sister

constructed a private temple subsequently

on a portion of the land, does not make the

gift of the land an endowment in favour of

God."

There being no pleadings, no prayer and no arguments

before the learned Judge on the above aspects, it was a

mistake on his part to have made such observations; it is

settled law that such a mistake on the part of the court

shall not prejudice anyone. Further, the observations

quoted above were not 'findings' as there was no issue at

all warranting the same; the above extracted observations

in any event were outside the scope of a second appeal,

consequently, they were without jurisdiction; a decree by a

court without jurisdiction is a nullity and its validity could be

set up whenever and wherever it is sought to be enforced

or relied upon, even at the stage of execution and even in

the collateral proceedings.

6. The observations made by the learned single Judge

while dismissing the second appeal confirming the decree of

the court below declaring respondent No. one's father as a

hereditary trustee of the temple, did not create any

additional right; the decree alone conclusively determines

the rights of the parties.

7. It was not necessary for the appellants to challenge

the orders of the High Court made in PIL and in the

contempt petition as they were based on order of the

learned single Judge dated 17.10.1995; the principle of

consequential orders applies.

The learned counsel for respondent No. 1 on the other

hand made following submissions fully supporting the

impugned judgment: -

1. The High Court rightly dismissed the appeal by the

impugned order on the three grounds \026 (a) in view of

Section 96(3) of CPC an appeal against a consent decree

was not maintainable, (b) the allegations of fraud and

misrepresentation were without any basis and (c) the

finding recorded in the first round of litigation operated as

resjudicata against the appellants.

2. Neither in the review petition nor in the writ appeal

nor in the special leave petition filed in this Court in the

year 1998 nor in the present civil appeal it was stated that

the Advocate General was not present or that he did not

consent to the decree being passed as recorded by the

learned single Judge in the High Court in the writ petition; it

was for the first time before the Division Bench of the High

Court it was orally contended that the Advocate General

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was not present and his junior had appeared; at no point of

time it was averred that the Advocate General or his junior

were not authorized to appear or to compromise the matter

or that they had acted contrary to express instructions.

3. Following were the circumstances in which the

Memorandum dated 27.10.1989 was issued: -

a) The said Memorandum was the culmination of a

proposal mooted by the Commissioner, Endowments

on 14.6.1989 and accepted by the Government of

Andhra Pradesh on 27.10.1989.

b) In the proposal dated 14.6.1989, the Commissioner of

Endowment traced the entire history of litigation and

stated that the land in question was gifted to Gunnaji

and the grant covered by the gift deed was absolute in

view of the findings recorded by the High Court and

this Hon'ble Court which were binding on the Deputy

Commissioner, who had to decide whether or not the

grant in question was an endowment.

c) It is in this view of the matter that the Commissioner,

Endowment (and not the Assistant Commissioner as

contended by the other side) mooted the proposal for

compromise, which was accepted by the Government

of Andhra Pradesh.

d) The writ petition having been disposed on the basis of

the said proposal mooted by the Commissioner,

Endowment (the appellant No. 1 herein) and accepted

by the Government and that too on the specific

representation by the learned counsel for the

appellants that the writ petition may be disposed of on

the said terms, it cannot be contended that the High

Court committed any error in disposing of the writ

petition accordingly.

4. The consent order passed in the writ petition is not

contrary to the provisions of the Act \026

a) In the first round of litigation findings were recorded

that there was no endowment at all; the gift in

question was not a gift to God; it was an absolute gift

to Gunnaji and that the temple in question was a

private temple. This being the position, the provisions

of the Act are not attracted to the land in question in

any manner whatsoever.

b) The Commissioner, Endowments having accepted in

his proposal dated 14.6.1989 that the said findings

were binding on the Deputy Commissioner,

Endowments for the purpose of exercise of jurisdiction

under Section 87 of the Act, it cannot be said that the

compromise was in violation of the provisions of the

Act.

5. In the earlier round of litigation a clear finding is

recorded that the temple in question was a private temple

and the said finding has attained finality. Merely because

there is reference to a Dharamshala in the gift deed it did

not imply that there was an endowment of a public

character.

6. Order XXIII Rule 3 CPC cannot be strictly applied to

the proceedings under Article 226 of the Constitution of

India \026

a) The explanation to Section 141 of CPC states that the

expression 'proceedings' does not include any

proceedings under Article 226 of the Constitution of

India. Therefore, it cannot be said that the provisions

of Order XXIII Rule 3 CPC should be mandatorily

followed in the writ proceedings.

b) The High Court while exercising jurisdiction under

Article 226 of the Constitution of India possesses

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inherent powers to do justice between the parties; the

power of the High Court to dispose of the matter by

recording consent of the parties flows from Article 226

of the Constitution of India and not from Order XXIII

Rule 3 CPC. Further, the manner in which such power

is to be exercised is not controlled by Order XXIII Rule

3 CPC.

c) The contention that Order XXIII Rule 3 CPC was

applicable in view of the rules framed by the Andhra

Pradesh High Court is not correct. The provisions of

CPC are applicable to the extent possible and having

regard to the context. If the provisions of CPC are

held to be applicable to proceedings under Article 226

of the Constitution, absurd consequences will follow.

Then it can be urged that before deciding a writ

petition issues should be framed under Order XIV,

evidence should be lead, etc.

d) In the present case admittedly the compromise terms

were available in writing in the form of memorandum

dated 27.10.1989 and the same were accepted. Thus

provisions of Order XXIII Rule 3 CPC stood

substantially complied with.

7. The decisions and findings recorded in the first round

of litigation do operate as resjudicata against the

appellants.

8. In view of the dismissal of Civil Appeal Nos. 702 and

703 of 1980 by this Court it is not open to the appellants to

question the validity of the decisions and the findings,

which stood concluded in the earlier round of litigation.

We have carefully examined the rival contentions

urged on behalf of the parties in the light of the material

placed on record.

Late Manik Rao, father of respondent No. 1, filed suit

No. OS No. 509 of 1971 in the City Civil Court at Hyderabad

for declaration that the plaintiff was hereditary mutawalli

(trustee) of Pandarinath Temple, generally known as Jangli

Vithoba Temple at Osman Shahi, Hyderabad City, entitled

to get his name entered in column No. 11 of the

Endowment Register, for perpetual injunction restraining

the defendants from constituting or reconstituting any

committee for the temple and to set aside the order of the

Government dated 17.6.1971 covered by G.O. Rt. No. 680.

The Government of Andhra Pradesh was defendant No. 1

and the Commissioner, Endowments (appellant No. 1

herein) was the defendant No. 2 in the suit. One Vasedeve

Naik, a person appointed as Chairman of the Managing

Committee constituted for the temple by the Government,

was defendant No. 3 in the said suit. The trial court

dismissed the suit on 23.3.1977.

The First Appeal A.S. No. 199 of 1977, filed by the

plaintiff Manik Rao, was allowed on 22.12.1978 granting

decree as sought for by the plaintiff in the suit. Temple

Committee, the third defendant in the suit, filed Second

Appeal S.A. No. 122 of 1979 in the High Court. The

Government and the Endowment Commissioner (defendant

Nos. 1 and 2) did not file any appeal challenging the decree

passed by the first appellate court in favour of Manik Rao,

father of respondent No. 1. In other words, they accepted

the decree. Even otherwise the said second appeal was

also dismissed by the High Court on 2.7.1979 affirming the

decree passed by the first appellate court. The High Court

in the said judgment made in the second appeal has

noticed, thus: -

"The case of the plaintiff is that as early as

the year 1809, one Khan gifted five bigas

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of land in favour of his ancestor, Gunnaji,

and that subsequent to the death of

Gunnaji, the heirs of Gunnaji were enjoying

the property in succession until his father's

time and that, when his father Jagannath

Rao was afflicted with a mental disease, he

applied to the Government for the

appointment of a Managing Committee as

his son (plaintiff) was then a minor unable

to manage the land and the temple and

that, after he attained majority, the

plaintiff is seeking the instant declaration.

The case of the 3rd defendant, who is the

appellant herein, is that the land was gifted

in favour of a temple that the same is thus

an endowment in favour of the temple;

that the document created a trust in favour

of Gunnaji; that the endower did not make

any provision in the document in regard to

the management of the temple or the land

subsequent to the death of Gunnaji.

According to the 3rd defendant, the heirs of

Gunnaji managed the properties for

sometime not by virtue of any legal right

but for want of persons who agreed to

manage and that, when the persons who

were managing the property were found to

be adopting malpractices, the Government

took over the management in the year

1929 and was ever since appointing

committees with chairman for such

committees. The 3rd defendant is one such

Chairman appointed by the Government

and the plaintiff cannot therefore seek the

declaration prayer for."

The High Court also has recorded that although the State

and the Commissioner, Endowments were made parties to

the second appeal, they did not participate in the appeal.

In other words, they neither filed the second appeal, as

already stated nor contested it. After hearing and

considering the evidence in view of the rival contentions,

the High Court has categorically recorded the findings,

thus: -

"As pointed out by the lower appellate

court, Ex. A-1 shows that the land was

gifted absolutely to Gunnaji. The

Government cannot claim any interest in

the land. The fact that Gunnaji's sister

constructed a private temple subsequently

on a portion of the land, does not make the

gift of the land an endowment in favour of

God. The land evolves according to law on

the successors of the donees and the

plaintiff is admittedly a successor. The fact

that, due to mal-administration or the

incapacity of a successor, the Government

took over the management and appointed

a committee is no ground to deny the

rights of the subsequent successor, which

flow by ordinary operation of law."

The original defendant Nos. 1 and 2 in the suit, i.e.,

Government of Andhra Pradesh and the Commissioner,

endowments although did not file second appeal against the

decree passed by the first appellant court in favour of the

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father of respondent No. 1, they filed special leave petition

No. 3427 of 1980 in this Court aggrieved by the judgment

and decree passed by the High Court in the aforementioned

second appeal. Subsequently after granting leave it was

numbered as Civil Appeal No. 702 of 1980. The third

defendant in the suit also filed Civil Appeal No. 703 of 1980

in this Court. Both the civil appeals were dismissed by this

Court by the following common order on12.8.1987: -

"The High Court concurred with the findings

of the Lower Appellate Court on a

construction of the Deed Ex. A-1. It is now

contended before us that the translation of

Ex.A-1 is not correct. We find from the

judgments of the Lower Appellate Court

and the High Court and the memorandum

of grounds of appeal before the High Court

that it was not suggested anywhere that

the translation is not correct. If the

translation as set out in the judgment of

the Lower Appellate Court is correct, the

findings of the Lower Appellate Court and

the High Court must be sustained. The

appeals are therefore dismissed. No

costs."

It is clear from the order of this Court, extracted above,

that this Court specifically recorded that the findings of the

lower appellate court and the High Court must be

sustained. There is also reference to Ex. A-1, the gift deed,

which deed was interpreted by the first appellate court and

the same interpretation was accepted by the High Court

holding that it conveyed absolute gift of land in favour of

the ancestors of the respondent No. 1, the temple was a

private property and that the land was not an endowed

property. Thus, in the first round of litigation the findings,

referring to Exh-A-1, gift deed, recorded by the first

appellate court as affirmed by the High Court in the second

appeal that under Exh A-1, gift deed, the land was gifted

absolutely to Gunnaji; the Government cannot claim any

interest in the land and the construction of a private temple

on a portion of the land did not make gift of the land an

endowment in favour of the God, had attained finality.

On 14.6.1989, almost after a period of one year and

ten months after the judgment was delivered by this Court

in aforementioned Civil Appeal Nos. 702 and 703 of 1980,

the Commissioner, Endowments sent a detailed report to

the Secretary of Revenue Department suggesting a

compromise by indicating the circumstances and the

reasons. In the said report, detailed history of the litigation

and also as to the findings recorded by the first appellate

court, High Court and Supreme Court in relation to the land

in question in the first round of litigation, as already stated

above in detail, were stated. This report shows that there

has been proper consideration and application of mind as to

how and why it was in the interest of the temple that a

compromise was needed. In response to the said

report/letter Joint Secretary to the Government of Andhra

Pradesh by Memorandum No. 1295/Endts-II-1/84-21,Rev.

dated 27.10.1989 permitted the compromise on certain

terms stated therein. On the representation made by

respondent No. 1 to the Assistant Commissioner to issue

necessary instructions, the Assistant Commissioner of

Endowment issued instructions dated 16.1.1990 to the

tenants of the temple property to pay the rents to

respondent No. 1 as the properties had been declared as

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his private property. However, the Deputy Commissioner,

Endowments set aside those instructions on the ground that

the term of compromise mentioned in the Memorandum

dated 27.10.1989 had not been reduced into a deed of

compromise. Thereafter, the Assistant Commissioner,

Endowments, withdrew his earlier instructions. When the

things stood thus, the Commissioner of Endowments

appointed an Executive Officer by the order dated

25.6.1990 for the management of the temple. Under these

circumstances the respondent no. 1 filed Writ Petition No.

8970 of 1990 for setting aside the aforementioned orders of

the Deputy Commissioner, Endowments dated 15.6.1990

and of the Commissioner, Endowments dated 25.6.1990

respectively. This writ petition was disposed of by the

learned single Judge by order dated 17.10.1995. Operative

portion of the said order reads: -

"During the pendency of the writ petition

the respondents filed W.P.M.P. No.

15438/1995 seeking permission to appoint

an Executive Officer to manage the affairs

of the temple in question and also to

permit the said officer to conduct the yearly

festival pending disposal of the writ

petition. The writ petitioner filed a counter

affidavit in the said WPMP stating that he is

ready to accept the terms and conditions

mentioned in the Government Memo No.

1295 dated 27.10.1989. Now, counsel for

both parties have represented that the writ

petition may be disposed of recording the

said compromise as per Government Memo

No. 1295 dated 27.10.1989. Accordingly

this writ petition is disposed of in terms of

the compromise both parties to implement

the terms embodied in the said

Government Memo within a period of four

weeks from today. Writ petition disposed

of accordingly. No costs."

Thus, it is clear that the learned single Judge disposed of

the writ petition by the consent of the parties accepting the

compromise memo dated 27.10.1989. Against this order of

the learned single Judge the present appellants did not file

any appeal. The private parties, who were subsequently

impleaded in the writ petition before the learned single

Judge, filed Writ Appeal No. 1536 of 1995 aggrieved by the

aforementioned order of the learned single Judge. The

Division Bench of the High Court dismissed the said writ

appeal on 13.1.1997 observing that the appellants in the

writ appeal had not represented themselves in the earlier

proceedings when the matter came up to this Court and

that the decision of this Court in the earlier round had

become final. Officers of the Endowment Department

including the Commissioner, Endowments sought review of

the order passed in the aforementioned Writ Appeal No.

1536 of 1995, which was dismissed on 12.11.1997 holding

that the earlier judgment of this Court in Civil Appeal Nos.

702 and 703 of 1980 had attained finality so far as the

construction of gift deed made in favour of Manik Rao,

father of respondent No. 1 and the issue could not be re-

opened. Hence the order passed by the learned single

Judge accepting the compromise on the basis of the

statement made on behalf of the parties was upheld.

Respondent No. 1 had also filed a contempt petition alleging

the violation of the judgment of the Division Bench made in

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Writ Appeal No. 1536 of 1995. The Contempt Petition also

was disposed of on the same day, i.e., on 12.11.1997. In

the said order it is recorded, thus: -

"We have disposed of the Review W.A.M.P.

(SR) No. 84816 of 1997 today and in view

of the definite stand taken in the counter-

affidavit by the Respondents that they will

abide by the orders of this Court. We are

of the opinion that it is not a fit case to

proceed with the contempt cases. We,

therefore, direct the implementation of the

orders of this Court in Writ Appeal No.

1536 of 1995 by taking into consideration

the observations made in the review

W.A.M.P. (SR) No. 84816 of 1997 which is

disposed of by us today. The Respondents

will however implement the order in the

W.A. No. 1536 of 1995 within two months

from today."

Against the dismissal of the review petition the

Commissioner, Endowments and others filed Special Leave

Petition No. 22746 of 1997 before this Court. The same

was dismissed as withdrawn on the statement made by the

learned counsel that the petitioners wanted to file

appropriate proceedings challenging the consent order

made in the writ petition by the learned single Judge. It is

only thereafter the appellants herein filed Writ Appeal No.

429 of 1998, which was disposed of by the impugned

judgment.

It was not contended on behalf of the appellants, till it

was raised for the first time during the course of arguments

before the Division Bench in the Writ Appeal No. 429 of

1998, that the learned Advocate General did not appear

before the learned single Judge and it is not the case of the

appellants that the counsel representing the appellants

before the learned single Judge were not authorized to

make the consent statement to accept the compromise.

However, it was contended before us that a concession

made on the question of law by the learned counsel does

not bind the parties. Learned Single Judge disposed of the

writ petition on the representation of learned counsel for

the parties recording the compromise as per the

Government Memo No. 1295 dated 27.10.1989. The writ

petition was disposed of in terms of the compromise with a

direction to implement them within a period of four weeks.

The representation so made or consent given for disposal of

the Writ Petition before the Learned Single Judge, in our

view, is not and does not amount to giving of concession on

a point of law particularly when we are taking a view that

the provisions of the Act have no application to the property

in question. The two decisions in Nedunuri

Kameswaramma vs. Sampat Subba Rao [1963) 2 SCR

208] and (2) B.S. Bajwa & Anr. vs. State of Punjab &

Ors. [(1998) 2 SCC 523] have no application to the facts of

the present case for the reasons that they were the cases

dealing with concession on the point of law given by the

counsel and those decisions were rendered on the facts of

those cases. Further, we are of the view that in this case,

there was no concession by the learned counsel on behalf of

the appellants on a point of law.

The contention that the order passed by the learned

single Judge accepting the compromise when it was not in

writing and not signed by the parties could not be accepted

by the learned single Judge, in our view, has no force for

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the reasons more than one.

The decisions in Gurpreet Singh vs Chatur Bhuj

Goel [(1988) 1 SCC 270] and Banwari Lal vs. Chando

Devi (Smt.) through L.Rs. & Anr. [(1993) 1 SCC 581]

cited by the learned counsel for the appellants to contend

that the order passed by the learned Single Judge in the

writ petition based on the consent statement made on

behalf of the parties when the compromise was not reduced

to writing and was not signed by the parties could not be

accepted, do not advance the case of the appellants. These

decisions dealt with the validity of the compromises arising

out of suits. It is true that under Rule 24 of the Andhra

Pradesh Writ Proceedings Rule, 1977, the provisions of the

Code of Civil Procedure would apply to the writ petitions or

the writ appeals. Section 141 of CPC provides that

procedure provided in the Code in regard to suits shall be

followed in all proceedings in any court of civil jurisdiction.

But, the explanation to Section 141 states that the

expression `proceedings' does not include any proceedings

under Article 226 of the Constitution of India. By virtue of

Rule 24 of A.P. Writ Proceedings Rules, the provisions of

Civil Procedure Code could be applied as far as possible.

The learned Single Judge disposed of the writ petition in

terms of Memorandum dated 27.10.1989 on the basis of

the submissions made by the learned counsel for the

parties. The Memorandum was issued by the Government

at the instance of the Endowment Commissioner and the

same was accepted by the respondent no. 1 though not

initially but during the pendency of the writ petition in the

High Court. Further, it is not the case of the appellants that

the counsel did not have authority to make a statement

before the court to accept the compromise. In Byram

Pestonji Gariwala vs. Union Bank of India & Ors.

[(1992) 1 SCC 31], in para 39, it is held thus:-

"39. To insist upon the party himself

personally signing the agreement or

compromise would often cause undue

delay, loss and inconvenience, especially in

the case of non-resident persons. It has

always been universally understood that a

party can always act by his duly authorised

representative. If a power-of-attorney

holder can enter into an agreement or

compromise on behalf of his principal, so

can counsel, possessed of the requisite

authorisation by vakalatnama, act on

behalf of his client. Not to recognise such

capacity is not only to cause much

inconvenience and loss to the parties

personally, but also to delay the progress

of proceedings in court. If the legislature

had intended to make such a fundamental

change, even at the risk of delay,

inconvenience and needless expenditure, it

would have expressly so stated."

The High Court while exercising jurisdiction under

Article 226 of the Constitution of India has jurisdiction to

pass appropriate orders. Such power can neither be

controlled nor affected by the provisions of Order XXIII Rule

3 CPC. It would not be correct to say that the terms of

order XXIII Rule 3 should be mandatorily complied with

while exercising jurisdiction under Article 226 of the

Constitution of India. Otherwise anomalous situation would

arise such as before disposing of the writ petition, issue

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should be framed or evidence should be recorded etc.

Proceedings under Article 226 of the Constitution of India

stand on a different footing when compared to the

proceedings in suits or appeals arising therefrom.

There was some dispute as to whether the learned

Advocate General himself appeared on the date when the

writ petition was disposed of by the learned Single Judge in

terms of the compromise or his junior appeared. In the

impugned judgment, it is stated that the State Government

was duly represented by a lawyer. In State of

Maharashtra vs. Ramdas Shrinivas Nayak & Anr.

[(1982) 2 SCC 463], dealing with the practice and

procedure regarding statement of fact recorded in the

judgment of a court, this Court held that such a statement

is conclusive and not open to be contradicted in appeal.

Paras 4 to 8 of the said judgment read:-

."4. When we drew the attention of the learned

Attorney-General to the concession made before

the High court, Shri A.K. Sen, who appeared for

the State of Maharashtra before the High Court

and led the arguments for the respondents there

and who appeared for Shri Antulay before us

intervened and protested that he never made

any such concession and invited us to peruse the

written submissions made by him in the High

Court. We are afraid that we cannot launch into

an enquiry as to what transpired in the High

Court. It is simply not done. Public policy bars

us. Judicial decorum restrains us. Matters of

judicial record are unquestionable. They are not

open to doubt. Judges cannot be dragged into

the arena. "Judgments cannot be treated as

mere counters in the game of litigation (Per Lord

Atkinson in Somasundaram Chetty v.

Subramanian Chetty, AIR 1926 PC 136 : 99 IC

742)." We are bound to accept the statement of

the judges recorded in their judgment, as to

what transpired in court. We cannot allow the

statement of the judges to be contradicted by

statements at the Bar or by affidavit and other

evidence. If the judges say in their judgment

that something was done, said or admitted

before them, that has to be the last word on the

subject. The principle is well-settled that

statements of fact as to what transpired at the

hearing, recorded in the judgment of the court,

are conclusive of the facts so stated and no one

can contradict such statements by affidavit or

other evidence. If a party thinks that the

happenings in court have been wrongly recorded

in a judgment, it is incumbent upon the party,

while the matter is still fresh in the minds of the

judges, to call the attention of the very judges

who have made the record to the fact that the

statement made with regard to his conduct was

a statement that had been made in error (Per

Lord Buckmaster in Madhu Sudan Chowdhri v.

Chandrabati Chowdhrain, AIR 1917 PC 30 : 42

IC 527). That is the only way to have the record

corrected. If no such step is taken, the matter

must necessarily end there. Of course a party

may resile and an appellate court may permit

him in rare and appropriate cases to resile from

a concession on the ground that the concession

was made on a wrong appreciation of the law

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and had led to gross injustice; but, he may not

call in question the very fact of making the

concession as recorded in the judgment.

5. In R v. Mellor ((1858) 7 Cox CC 454 : 6 WR

322 : 169 ER 1084) Martin, B. was reported to

have said :

We must consider the statement of

the learned judge as absolute verity

and we ought to take his statement

precisely as a record and act on it in

the same manner as on a record of

Court which of itself implies an

absolute verity.

6. In king-Emperor v. Barendra Kumar Ghose

(28 Cal WN 170 : AIR 1924 Cal 257 : 38 Cal LJ

411 : 25 Cri LJ 817), Page, J. said :

...these proceedings emphasis the

importance of rigidly maintaining the

rule that a statement by learned

Judge as to what took place during

the course of a trial before him is final

and decisive : It is not to be criticized

or circumvented; much less is it to be

exposed to animadversion.

7. In Sarat Chandra Maiti v. Bibhabati Debi (34

Cal LJ 302 : AIR 1921 Cal 584 : 66 IC 433) Sir

Asutosh Mookerjee explained what had to be

done :

...It is plain that in cases of this

character where a litigant feels

aggrieved by the statement in a

judgment that an admission has been

made, the most convenient and

satisfactory course to follow,

wherever practicable, is to apply to

the Judge without delay and ask for

rectification or review of the

judgment...

8. So the judges' record is conclusive. Neither

lawyer nor litigant may claim to contradict it,

except before the judge himself, but nowhere

else. "

Under the circumstances, the Division Bench of the

High Court was right in not disturbing the order of the

learned Single Judge accepting the compromise as

represented by learned counsel for the parties.

Thus, on the facts of the case, it is not possible to

hold that the order of the learned Single Judge disposing of

the writ petition was bad in law particularly when he

exercised his jurisdiction under Article 226 of the

Constitution of India. At any rate, when the findings

recorded and the decision made in the first round of

litigation between the parties being binding, the appellants

cannot take advantage on the ground that compromise was

not reduced to writing and not signed by the parties. Even

otherwise, if this compromise is to be annulled accepting

the contention of the appellants, it would be to their

disadvantage in the light of the findings recorded earlier in

the first round of litigation.

In the earlier round of litigation, it was specifically

held that the gift deed did not create an endowment and

the temple in question was not a public temple and the land

was gifted absolutely to Gunnaji. In a private trust, the

beneficiaries are specific individuals and in a public trust,

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the beneficiary is general public as a class. In a private

trust, the beneficiaries can be ascertained whereas in a

public trust, they are incapable of ascertainment. In the

present case, the ascertained individual was Gunnaji. This

position is clear from the decision in Deoki Nandan vs.

Murlidhar [(1956) SCR 756].

Mere use of the premises as a `Dharamshala' for

number of years could not lead to an inference that the

same belongs to a public trust. Whether an endowment is

of public or private nature, depends on the facts of each

case satisfying certain tests and guidelines. This position is

evident from the judgment of this Court in Kuldip Chand &

Anr. vs. Advocate-General to Government of H.P. &

Ors. [(2003) 5 SCC 46]. Para 34 of the said judgment

reads:-

"Long user of a property as Dharamsala by itself

would not lead to an inference that dedication of

the property by Kanwar Bir Singh in favour of

the public was complete and absolute. Had such

dedication been made, the same was expected

to be recorded in the revenue records."

The argument that the impugned order is unsustainable

on the ground that the Division Bench did not consider the

effect of Sections 14, 16, 42, 80(1)(a) and (b) and Section 87

of the Act also does not help the appellants in the light of the

specific finding of fact that the gift made in Exh. A-1 in respect

of the land was absolute in favour of the ancestors of the

respondent No.1, the temple was a private temple and the

land was not endowed under the gift deed. As is evident from

Section 1(3) of the Act, it applies to all public charitable

institutions and endowments whether registered or not. This

being the position, having regard to the findings as to the

nature and scope of the gift of the land in favour of the

ancestors of the respondent no. 1, the temple was a private

temple and the land was not endowed under the gift deed, the

Division Bench did commit no error in not considering the

effect of the aforementioned Section of the Act when the Act

itself did not apply to the properties in question.

In the suit O.S. No. 509/1971, although no specific

issue was raised as to the scope and nature of the gift

deed, the Commissioner of Endowments (appellant no. 1) in

the written statement, had raised a plea that the gift deed

merely gave general power of attorney to Gunnaji. In that

situation, in order to decide the issues that arose for

consideration in the suit, it was necessary to decide as to

what rights were conferred by the gift deed on Gunnaji and

what was the nature and scope of the gift deed. It cannot

be said that these aspects as to the nature and scope of the

gift deed and the rights that were conferred on Gunnaji did

arise for consideration. Both the parties knew about the

same. The High Court in the second appeal No. 122/79, as

already stated above, noticing the findings of the lower

appellate court, recorded a findings that the land was gifted

to Gunnaji absolutely, the Government could not claim any

interest, temple constructed on a portion of the land was a

private temple and it did not make the gift of the land an

endowment in favour of the God. These findings have

attained finality. Failure to frame a formal issue by the

court would not invalidate the findings of the binding

judgment between the parties. The aforementioned

findings against the appellants could neither dilute nor

deprive their binding character merely because specific

issue was not raised in the suit. It was also contended that

in the suit, father of the respondent no. 1 claimed only

declaration as to his Mutawalliship and if he was Mutawalli,

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the question of claiming absolute right over the land did not

arise. In the suit, one of the reliefs sought by Manik Rao

was that the order passed by the appellant no. 1 holding

that the gift in favour of Gunnaji was an endowment be set

aside which relief was ultimately granted to Manik Rao. For

setting aside the order of the appellant no. 1, it was

necessary to consider the nature and scope of gift deed

and, therefore, the finding in that regard, which had

attained finality, could not be re-opened. Merely because

Manik Rao claimed declaration of his mutawalliship under

misconception or wrongly, that does not affect the merit of

the case of the respondent no. 1 when there are positive

and categorical findings as to the nature and scope of the

gift deed conferring absolute right over the land in

question. It is pertinent to state here itself that the findings

of the first appellate court and the second appellate court

regarding the nature of the gift deed were specifically

impugned by the appellants in Civil Appeal Nos. 702 and

703 of 1980 and thus the issue was raised. The contention

was raised in the aforementioned appeals before this Court

that the courts below had wrongly interpreted the gift deed

and the findings should be overturned. This Court in the

judgment dated 12th August, 1987 made in the said appeals

has clearly stated that the findings of the lower appellate

court and the High Court must be sustained. It may also be

noticed that the appellants challenged the judgment of the

first appellate court and the High Court in the first round of

litigation before this Court substantially on the grounds

which are urged in the present appeal. Some decisions are

cited on the question as to whether the judgments in the

first round of litigation operate as res judicata and whether

they are binding on the parties.

The decision in Mathura Prasad Bajoo Jaiswal &

Ors. Vs. Dossibai N.B. Jeejeebhoy [(1970) 3 SCR 830]

and Madhvi Amma Bhawani Amma & Ors. Vs.

Kunjikutty Pillai Meenakshi Pillai & Ors. [(2000) 6 SCC

301] relied on by the learned counsel for the appellants to

support the contention that any observation made or

finding given in the judgment in the absence of an issue

framed does not operate as res judicata. In the first case,

the question that arose for consideration was whether a

decision relating to the jurisdiction of a court erroneously

decided would operate as res judicata subsequently. This

Court held that by an erroneous decision, if the court

assumes jurisdiction which it does not possess under the

statute, such a decision would not operate as res judicata

between the parties. This is not a decision on the point that

a finding given by the courts having jurisdiction on the

question of fact, does not bind the parties or such a finding

does not operate as res judicata. In the second case, the

question for consideration was whether an order of granting

succession certificate under Section 373 of the Indian

Succession Act, 1925 would operate as res judicata to the

suit for partition in a civil court between the same parties.

This Court held that the finding recorded while granting

succession certificate did not operate as res judicata in the

suit filed for partition in a civil court. It was noticed that the

grant of succession certificate falls under Part X of the said

Act. Under Section 387 of the Act, no decision under Part X

upon any question of right between the parties shall be held

to bar the trial of the same question in any suit or in any

other proceeding between the same parties. In para 16 of

the judgment, it is stated thus:-

"16. This leaves no room for doubt. Thus any

adjudication made under Part X of this Act which

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includes Section 373 does not bar the same

question being raised between the same parties

in any subsequent suit or proceeding. This

provision takes the decisions under Part X of the

Act outside the purview of Explanation VIII to

Section 11. This gives protective umbrella to

ward off from the rays of res judicata to the

same issue being raised in a subsequent suit or

proceedings."

Rameshwar Dayal vs. Banda (Dead) through His

LRs. & Anr. [(1993) 1 SCC 531] also does not help the

appellants. That was a case where question of title was

incidentally determined by the Small Causes Court and

when a plea of res judicata was sought to be raised in a

subsequent suit based on title, the Court held that there

was no bar of res judicata. The question of title incidentally

considered by the Small Cause Court in eviction

proceedings against tenant could not be taken as bar to

apply principle of res judicata in a subsequent suit based on

title.

This Court in Raj Laxmi Dasi & Ors. Vs. Banamali

Sen & Ors. [1953 SCR 154] while dealing with the doctrine

of res judicata reproduced the observations of Sir Lawrence

Jenkings made in the judgment of the Board in

Sheoparsan Singh vs. Ramnandan Singh [(1916) 43

I.A. 91] which read:-

"In view of the arguments addressed to them,

their Lordships desire to emphasize that the rule

of res judicata while founded on ancient

precedent, is dictated by a wisdom which is for

all time. `It hath been well said' declared Lord

Coke, `interest reipubliae ut sit finis litium \026

otherwise, great oppression might be done under

colour and pretence of law' (6 Coke, 9a).

Though the rule of the Code may be traced to an

English source, it embodies a doctrine in no way

opposed to the spirit of the law as expounded by

the Hindu commentators. Vijnaneswara and

Nilakantha include the plea of a former judgment

among those allowed by law, each citing for this

purpose the text of Katyayana, who describes

the plea thus:`If a person though defeated at

law, sue again, he should be answered "you

were defeated formerly". This is called the plea

of former judgment. And so the application of

the rule by the courts in India should be

influenced by no technical considerations of

form, but by matter of substance within the

limits allowed by law."

(Emphasis supplied)

In support of his submission, the learned counsel for

respondent no. 1 contended that as long as an issue arises

substantially in a litigation irrespective of the fact whether

or not a formal issue has been framed or a formal relief has

been claimed, a finding on the said issue would operate as

res judicata, strongly relied on the decision of this Court in

Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. Vs.

Musa Dadabhai Ummer & Ors. [(2000) 3 SCC 350].

Paras 18 and 19 of the said judgment read:-

"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

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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)

In the light of what is stated above, in the case on

hand, in our view, it was necessary for the Court in the

earlier round of litigation to decide the nature and scope of

gift deed Exbt. A-1. Accordingly, the courts decided that

the gift made in favour of ancestors of the respondent no. 1

of the land was absolute and it was not an endowment for a

public or charitable purpose. On the facts of the case, it is

clear that though an issue was not formally framed, the

issue was material and essential for the decision of the case

in the earlier proceeding. Hence, the bar of res judicata

applies to the facts of the present case.

In Vithal Yeshwant Jathar vs. Shikandarkhan

Makhtumkhan Sardesai [(1963) 2 SCR 285], this Court

observed that "it is well settled that if the final decision in

any matter at issue between the parties is based by a Court

on its decisions on more than one point \026 each of which by

itself would be sufficient for the ultimate decision \026 the

decision on each of these points operates as res judicata

between the parties."

The following three decisions were relied on by the

learned counsel for the appellants in support of his

submission that a `finding' is a decision on an issue framed

in a suit and not otherwise:-

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(1) Income-tax Officer, A-Ward,Sitapur vs. Murlidhar

Bhagwandas, Lakhimpur Kheri[(1964) 6 SCR 411]

(2) Daffadar Bhagat Singh & Sons Vs. The Income-tax

Officer, A-Ward, Ferozepore [(1969) 1 SCR 828]

(3) C.I.T. Andhra Pradesh Vs. M/s. Vadde Pulliah & Co.

[(1973) 4 SCC 121]

These three decisions are rendered interpreting

Section 34(3) of the Income-tax Act. They do not help the

appellants. There are not the authorities to say that a

finding is a decision on an issue framed in a suit. This

Court observed in the said decisions that a finding, which

can be considered as relevant under the second proviso to

Section 34(3) of the Income-tax Act, must be one which

was necessary for deciding the appeal before the authority.

In view of the discussion made above on the point of

res judicata, we have taken the view that the findings

recorded between the parties in the earlier round of

litigation are binding on the appellants. Thus, we do not

find any merit in the submission of the learned counsel for

the appellants that there are no binding findings against the

appellants in the earlier round of litigation on the ground

that those findings were recorded without there being any

issue.

In the impugned judgment, the Division Bench of the

High Court, after detailed consideration upheld both the

preliminary objections namely (1) as to the maintainability

of the appeal against the order of the learned Single Judge

as the said order was passed on the basis of the consent of

the parties and (2) on the basis of doctrine of res judicata

or constructive res judicata, raised on behalf of the

respondent no. 1 and rightly so in our opinion. We do not

find any good ground or valid reason to interfere with the

impugned judgment.

Thus having regard to all aspects and viewed from any

angle, we do not find any merit in this appeal.

Consequently it is dismissed but with no order as to costs.