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CASE NO.:

Appeal (civil) 5390 of 1985

PETITIONER:

SAJJADANASHIN SAYED MD.B.E.EDR.(D)BY LRS

Vs.

RESPONDENT:

MUSA DADABHAI UMMER & OTHERS .

DATE OF JUDGMENT: 23/02/2000

BENCH:

R.C.Lahoti, M.J.Rao

JUDGMENT:

M.JAGANNADHA RAO,J.

L.....I.........T.......T.......T.......T.......T.......T..J

This appeal arises out of orders passed rejecting

the preliminary objection raised by the appellant.

The

preliminary objection was that the present proceedings

initiated by the deceased first respondent on

21.8.1967

before the Assistant Charity Commissioner, Surat

Region

under section 19 of the Bombay Public Trusts Act, 1950

to declare three Rozas (situated at three places

Ahmedabad, Broach and Surat) were public trusts, were

barred by res judicata in view of three decisions

arrived at earlier - one in 1931, another dated

19.1.1967 and a third one initiated in 1965.

In the present proceedings, which relate to the

Rozas at all the three places, the Assistant

Commissioner in his orders in Inquiry No.142/67 dated

26.7.68 accepted the preliminary objection of res

judicata but the Joint Charity Commissioner, Gujarat

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in

his order in Appeal No.85/68 dated 17.12.73 did not

accept the plea (before him, the plea was confined to

the Rozas at Broach and Surat). He set aside the

order

and remanded the matter for inquiry. The said order

of

the Joint Commissioner was affirmed on 30.9.76 by the

learned Assistant Judge in Misc. Civil Application

No.32

of 1974 and by the Division Bench of the Gujarat High

Court in First Appeal No.985 of 1976 on 27.7.85. As

the

preliminary objection was negatived, a direction was

given to the Assistant Commissioner to dispose of the

Inquiry No.142 of 1967 on merits. Aggrieved by the

above-said orders, the appellant(who was respondent in

the main Inquiry No.142/67) has filed this appeal and

has raised the same plea of res judicata before us

once

again. In the present appeal, the plea of res

judicata

is confined to the Rozas at Broach and Surat.

As the contention of res judicata raised by the

appellant concerns three earlier proceedings, we shall

have to refer to them. But we may also point out that

in

certain other proceedings relied upon by the

respondents

a view has already been taken that principle of res

judicata does not apply. These other proceedings were

those started in 1954 under section 19 of the Bombay

Act

(Appl. 289/54) by one Ali Miya Mahmadiya & others, in

connection with the Ahmedabad Roza. There a similar

plea

of res judicata was raised by the appellant Sayed

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Mohumed Baquir El-Edroos and the said plea was

rejected

by the Deputy Commissioner on 23.4.56 and that

decision

was confirmed by the Charity Commissioner in Appeal

125/56 on 29.5.57,-reversed by the District Judge in

149/57 on 29.12.1959 - but the plea of res judicata

was

once again rejected by a learned Single Judge of the

Gujarat High Court on 24.4.67 in the case reported in

Ali Miya vs. Sayed Mohammed [1968 (9) Guj.L.R. 1002]

and

that decision of the learned Single Judge was affirmed

on 14.9.70 by a Division Bench in Sayed Mohammed vs.

Ali Miya [1972 (13) Guj.L.R.285]. In fact, in the

present proceedings, the Joint Commissioner, the

Assistant Judge and the High Court have all applied

the

ratio of those two decisions relating to Ahmedabad

Roza

- on the question of res judicata - in relation to the

Broach and Surat Rozas as well. It was held that on

the

same ratio, that the earlier orders relied upon by the

appellant declaring the Broach and Surat Rozas to be

private trusts and not public trusts, were not res

judicata.

We may also point out that special Leave petitions

Nos.2574, 2575/71 against the Division Bench Judgment

of

the High Court dated 14.9.70 were got dismissed by the

appellant as withdrawn on 16.11.1971. No doubt, this

Court observed that the plea of res judicata would be

available to the appellant in the regular inquiry in

that case. Later on, the District Judge renumbered

the

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Petition 149/57 as CMA 352/67 and on merits held that

the Ahmedabad Roza was a public trust, RFA 488/72

filed

by the appellant was dismissed by the High Court on

4.5.73 and SLP (CA No.1974/75) was dismissed for non-

prosecution by this Court. Thus the rejection of the

plea of res judicata and the finding on merits so far

as

the Ahmedabad Roza was concerned, became final. That

was why in the present proceedings at the stage of

Joint

Charity Commissioner, the plea of res judicata was

confined to the Rozas at Broach and Surat.

The earlier history of these wakfs is set out in

the reported judgments of the Gujarat High Court

referred to above. These judgments refer to two other

judgments of the Bombay High Court.

Edroos family in Gujarat claimed to be descendants

of Hazarat Imam Ali, the son-in-law and cousin of

Prophet Muhamed. One of the descendants of the said

Hazrat came down to India in 1542 A.D. and founded

his

Gadi at Ahmedabad, Broach and Surat. The members of

the

Edroos family were Sajjadanashins or Mutavallis of the

wakf throughout. The three Rozas at the three places

as

well as the villages which were granted - not only for

the maintenance of these Rozas but also for the

benefit

of the Waquif's family, - constituted the wakf. The

holder was buried in the house and his Dargah is

situated in this place. There is also a place for

reciting prayers. In Sayed Abdul Edroos vs. Sayad

Zain

Sayad Hasan Edroos [ILR 13 Bom. 555], a Division

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Bench

of the Bombay High Court, traced the history of the

wakf

and held that the custom of primogeniture did not

apply

to the office of Sajjadanishin or Mutavalli of this

wakf. In the next litigation, in Saiyad Jaffar El

Edroos vs. Jayad Mahomed El Edroos [ILR 39 Bom.

277],

which is more important, another Division Bench held,

after construing the royal grants relating to the

villages Umrao and Orma that the grants were primarily

for the Rozas and Dargas and they clearly constituted

"wakf" but that the Sajjadanashin or Mutavalli had,

however, a right to the surplus income left over after

discharge of the legal obligations regarding the wakf.

In exercise of that power over the surplus income, the

Sajjadanishin, it was held, could provide for the

needs

of the indigent members of the family and this was a

pious obligation which was only a moral obligation and

not a legal obligation and hence the indigent members

of

the Edroos family could not, as of right, claim

maintenance out of the surplus income.

We shall now come to the 1928 suit filed under

Section 92 of the Code of Civil Procedure which is the

first of the cases giving rise to the plea of res

judicata. This was a Regular Suit No.201 of 1928

filed

under section 92 CPC by three plaintiffs impleading

the

father of Sayed Mohamed Baquir-El-Edroos, the

appellant

in this appeal, as defendant. (The appellant before

us

was also the appellant before the Division Bench which

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decided Sayed Mohamed vs. Ali Miya 1972 (13) Guj.

L.R.285 in relation to the Ahmedabad Roza). The

plaintiffs contended that the appellant's father was

not legally appointed to the shrines at the three

places

and that he was mismanaging the properties and prayed

that an injunction should be granted. They also asked

for the framing of a scheme and for appointing a board

of trustees. The Collector granted permission on

22.2.28 for filing the suit under section 92 CPC. The

first Sub Judge, Surat dismissed the suit on

6.10.1931.

Appeal No.80/31 filed by the plaintiffs was also

dismissed and cross-objections were allowed on

21.11.1938. The Second appeal to the High Court was

withdrawn. In the judgment of the District Court, we

find that there were 8 points. Points 1 to 7 related

to

the validity of appointment of the defendant and the

nature of the office and the right to the surplus etc.

On those points, it was held that the appointment of

the

defendant as Sajjadanishin was valid and that the

grant

of the property was both for the Rozas and for the

maintenance, presumably of Sajjadanishin and his

family

members. It was held that the Sajjadanishin had

complete power of disposal over the surplus as he was

not in the position of an ordinary trustee. While the

upkeep of the Dargas, the holding of fairs and proper

attention to the visitors to the Rozas was a primary

legal obligation and a charge on the income of then

villages, the Sajjadanishin, it was held, had full

power over the surplus. On this basis, the

plaintiff's

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plea that the Sajjadanishin was misutilising the

income

was rejected by the District Judge and the judgment of

the trial Judge dated 6.10.31 dismissing the suit

filed

under Section 92 of the Code of Civil Procedure was

affirmed. This judgment of the learned District Judge

is

dated 21.11.38.

The District Court in its judgment of 1931 had

also framed Issue 9. The issue was as to whether the

wakf was a private wakf or a public wakf and the

learned

Judge found that the wakf was a private wakf. He

observed in para 15 of his judgment that from 1746

A.D.

onwards, the "Sajjadanishins were using the revenue of

these villages for their own maintenance and that of

the

members of their families and other dependants" and

this

was permissible according to the earlier judgment of

the

Bombay High Court in Saiyad Jaffar El Edroos Case (39

Bom.L.R.277). Always the Sajjadanishin was from the

family and never a stranger or outsider. These facts,

the learned District Judge held were sufficient to

lead

to the conclusion that the wakf was a `private' one.

He

observed that the documents in the case were also

inconsistent with the wakf being a public one. It is

this finding that is pleaded by the appellant as res

judicata in the present proceedings.

We have already stated that in relation to the

Roza at Ahmedabad, an identical plea raised by the

appellant was rejected by the learned Single Judge of

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the Bombay High Court in Ali Miya vs. Sayed Mohamed

[(1968) 9. Guj.L.R.1002] and on appeal by the

Division

Bench in Sayed Mohamed vs. Ali Miya [(1972) 13

Guj.L.R.

285]. It is true that the above-said reported

judgments

of the High Court related to the Ahmedabad Roza and

were

rendered at the preliminary stage on a plea of res

judicata but we find that the learned Judges in the

said

judgments have gone into the matter in detail as to

why

the decision rendered by the District Judge on

21.11.1938 would not be res judicata in the 1954

proceedings initiated under section 19 of the

Maharashtra Public Trusts Act, 1950. Our task in this

behalf has therefore been lightened and we will be

adverting to the reasons given by the Division Bench

of

the High Court in Sayed Mahomed vs. ali Miya [(1972)

13

Guj.L.R. 285] on the question of res judicata under

Point 2. Under point 3, we shall refer to two other

proceedings of 1967 and 1965 as these two decisions of

the authorities also relied upon the 1931 judgment.

The points that arise for consideration are:

(i) What is meant in Section 11, CPC by an issue being

collaterally or incidentally in issue as distinct from

being directly and substantially in issue?

(ii) Whether the decision of the District Judge, Surat

in Appeal No.80/31 operates as res judicata in the

present proceedings?

(iii) Whether the decision of the Assistant Charity

Commissioner dated 19.1.1967 in Inquiry No.14/64 filed

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by Peer Mohammed Fruitwala and Inquiry No.3/65 filed

by

Sayed Hasan Sayed Mohammed El-Edroos holding the

properties in respect of Dargahs at Ahmedabad, Broach

and Surat not to be public trust are res judicata in

the

present proceedings?

Point No.1:

The words `collaterally or incidentally in issue'

have come up for interpretation in several common law

jurisdictions in the context of the principle of res

judicata. While the principle has been accepted that

matters collaterally or incidentally in issue are not

ordinarily res judicata, it has however been accepted

that there are exceptions to this rule. The English,

American, Australian and Indian Courts and Jurists

have

therefore proceeded to lay down certain tests to find

out if even an earlier finding on such an issue can be

res judicata in a later proceeding. There appears to

be

a common thread in the tests laid down in all these

countries.* We shall therefore refer to these

developments.

_______________________________________________________

*See Holdsworth History of English Law 147-54 ( 1944);

Millar - The Historical Relation of Estoppel by Record 35

Ill.L.Rev.41 ( 1940); Millar - res Judicata in Continental

and Anglo American Law - 39 Mich. L.R.1(1940); Comparative

Study ( 1940) Wisc L.R. 234; Development in Res Judicata

1952. 65 Harv. LR 818;

Matters collaterally or incidentally in issue:

It will be noticed that the words used in Section

11 CPC are "directly and substantially in issue". If

the

matter was in issue directly and substantially in a

prior litigation and decided against a party then the

decision would be res judicata in a subsequent

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proceeding. Judicial decisions have however held that

if a matter was only 'collaterally or incidentally' in

issue and decided in an earlier proceeding, the

finding

therein would not ordinarily be res judicata in a

latter

proceeding where the matter is directly and

substantially in issue.

As pointed out in Halsbury's Laws of England (Vol.

16, para 1538) (4th Ed), the fundamental rule is that

a

judgment is not conclusive if any matter came

collaterally in question (R Vs. Knaptoft Inhabitants

(1824) B & C 883; Heptulla Bros Vs. Thakore (

1956(1)

WLR. 289 (297)(PC); or if any matter was

incidentally

cognizable ( Sanders ( otherwise Saunders) Vs.

Sanders (

otherwise Saunders) 1952 (2) All ERR p. 767 at 771).

A collateral or incidental issue is one that is

ancillary to a direct and substantive issue; the

former

is an auxiliary issue and the latter the principal

issue. The expression 'collaterally or incidentally'

in

issue implies that there is another matter which is

'directly and substantially' in issue ( Mulla, CPC

15th

Ed., p.104).

Difficulty in distinguishing whether a matter was

directly in issue or collaterally or incidentally in issue

and tests laid down in various Courts:

Difficulty in this area of law has been felt in

various jurisdictions and therefore some tests have

been

evolved. Halsbury says ( Vol.16, para 1538) ( 4th

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Ed.)

that while the general principle is clear, "difficulty

arises in the application of the rule in determining

in

each case what was the point decided and what was the

matter incidentally cognizable, and the opinion of

Judges seems to have undergone some fluctuations".

Spencer Bower and Turner on 'The Doctrine of Res

Judicata' ( 2nd Ed, 1969) (p.181) refer to the English

and Australian experience and quote Dixon, J. of the

Australian High Court in Blair Vs. Curran ( 1939)62.

CLR. 464 ( 553) to say: "The difficulty in the

actual

application of these conceptions is to distinguish the

matters fundamental or cardinal to the prior decision

on

judgment, or necessarily involved in it as its legal

justification or foundation, from matters which, even

though actually raised and decided as being in the

circumstances of the case the determining

considerations, yet are not in point of law the

essential foundation of a groundwork of the judgment".

The authors say that in order to understand this

essential distinction, one has always to inquire with

unrelenting severity_ - is the determination upon

which

it is sought to find an estoppel so fundamental to the

substantive decision that the latter cannot stand

without the former. Nothing less than this will do.

It

is suggested by Dixon J that even where this inquiry

is

answered satisfactorily, there is still another test

to

pass: viz. whether the determination is the

'immediate

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foundation' of the decision as opposed to merely "a

proposition collateral or subsidiary only, i.e. not

more

than part of the reasoning supporting the conclusion".

It is well settled, say the above authors, "that a

mere

step in reasoning is insufficient. What is required

is

no less than the determination of law, or fact or

both,

fundamental to the substantive decision".

American jurists and Courts have also found

difficulty but they have tried to lay down some tests.

It is conceded in Corpus Juris Secundum ( Vol.50, para

725) that "it is sometimes difficult to determine when

particular issue determined is of sufficient dignity

to

be covered by the rule of estoppel. It is said that

estoppel by judgment does not extend to any matter

which

was only incidentally cognizable or which came

collaterally in question, although it may have arisen

in

the case and have been judicially passed on (Per

Taft,J.

in North Carolina R Co.Vs. Story) (45 S.Ct.531 = 268

US

288). But this rule does not however prevent a

judgment

from constituting an estoppel with reference to

incidental matters necessarily adjudicated in

determining the ultimate vital point. American

Jurisprudence ( Vol. 46 Judgments para 422) too says:

"Under this rule, if the record of the former trial

shows that the judgment could not have been rendered

without deciding the particular matter, it will be

considered as having settled that matter as to all

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future actions between the parties". ( Per Harlan, J.

in

Hoag vs. New Jersey) ( 356, US 464 = 78. S.Ct.829),

quoting Restatement, Judgments (para 68(1)) and

`Developments in the Law - Res Judicata' (1952) 65

Harv.

L.Review 818(820).(See also collateral estoppel by

judgment - by Prof. Scott. (1942) Harvha R 1.)

In India, Mulla has referred to similar tests

(Mulla, 15th Ed.p.104). The learned author says: A

matter in respect of which relief is claimed in an

earlier suit can be said to be generally a matter

'directly and substantially' in issue but it does not

mean that if the matter is one in respect of which no

relief is sought it is not directly or substantially

in

issue. It may or may not be. It is possible that it

was

'directly and substantially' in issue and it may also

be

possible that it was only collaterally or incidentally

in issue, depending upon the facts of the case. The

question arises as to what is the test for deciding

into

which category a case falls? One test is that if the

issue was 'necessary' to be decided for adjudicating

on

the principal issue and was decided, it would have to

be

treated as 'directly and substantially' in issue and

if

it is clear that the judgment was in fact based upon

that decision, then it would be res judicata in a

latter

case. (Mulla, p.104) One has to examine the plaint,

the

written statement, the issues and the judgment to find

out if the matter was directly and substantially in

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issue ( Ishwar Singh Vs. Sarwan Singh: AIR 1965 SC

948

Mohd.S.Labbai Vs. Mohd. Hanifa: AIR 1965 SC 1569).

We

are of the view that the above summary in Mulla is a

correct statement of the law.

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".

The Privy Council and the Supreme Court had

occasion to deal with these points. Three decisions,-

two of the Privy Council and one decided by the

Supreme

Court -can be referred to in this context as

illustrations of cases where in spite of an issue and

a

decision in an earlier case, the finding was treated

as

being only collaterally or incidentally in issue and

not

res judicata. In Run Bahadur Vs. Lucho Koer ( 1885)

ILR

11 Cal 301 (PC) ( see Mulla p.107), A, a Hindu, died

leaving a widow and a brother C.The widow sued B, the

tenant for rent of certain property forming part of

the

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estate of her husband. C, the husband's brother,

claimed

the rent on the ground that the property was joint

family property and that he was entitled to the rent

by

survivorship. C was then joined as a defendant. Two

issues were framed (1) whether the deceased alone

received the whole rent of the property in his life

time, or whether the rent was received by him jointly

with his brother C? (2) whether any rent was due and

if

so, how much was due from B? The finding on the first

issue was that the deceased alone received the whole

rent in his life time. Subsequently, C sued the widow

for declaration that he and his brother were joint,

and

he claimed the property by right of survivorship. The

question arose whether the deceased and C were joint

or

separate and the earlier finding was held not res

judicata inasmuch as the matter was not 'directly and

substantially' in issue in the earlier suit. It was

in

issue in the earlier suit only 'collaterally or

incidentally', as it did not cover the entire question

of C's title but related merely to the joint or

separate

receipt of rent.

The next decision, again of the Privy Council is

the one in Asrar Ahmed Vs. Durgah Committee, Ajmer

(AIR

1947 PC 1) relating to the famous Dargah of Moinuddin

Chisti, Ajmer. In a former suit of 1880 under Section

18

of the Religious Endowments Act, 1863 filed by the

President and one Member of the Durgah Committee for

removal of one Ameer Ali, the Mutavalli on ground of

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maladministration, the question as to the hereditary

nature of the office was the subject matter of a

specific issue and it was held that the office was

hereditary, accepting the plea of the defendant.

While

decreeing the suit for removal of the Mutavalli, the

Court however held that if the Mutavalli behaved

properly, he could be reinstated as the office was

hereditary. In 1918, the Dargah Committee filed a

suit

against Nisar Ahmed, brother of the deceased

Mutawalli,

whom the Commissioner proposed to recognise as legal

heir and Mutawalli, thus treating the office as

hereditary. But in that case the Committee claimed

that

the office was not hereditary. Nisar Ahmed, the

defendant claimed the office as hereditary and relied

upon the earlier finding. This suit however abated.

Nisar Ahmed died in 1940. Then Ameer Ali's son filed

a

suit claiming the office to be hereditary. The suit

was

decreed by the District Judge but dismissed on appeal.

In the plaintiff's appeal to the Privy Council, their

Lordships rejected the plea of res judicata and held

that the issue as to the hereditary nature of the

office

was irrelevant in the earlier suit and the decision

was

incidental to and not the substance of the earlier

suit.

The Supreme Court decided a similar case in

Pragdasji Vs. Ishwarlal Bhai ( AIR 1952 SC 143).There

the question of res judicata arose at two stages of

the

same proceeding. The plaintiffs filed a suit under

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Section 92 CPC in 1928 for (i) a declaration that the

properties under the management of the defendant were

religious and charitable trust properties (ii) the

defendant be removed from the Gadi from possession of

the properties and a suitable successor be appointed,

(iii) the defendant be called upon to account for his

period of management and (iv) to frame a scheme for

proper management of the institution. The defendant

traversed the material allegations and pleaded that

the

suit was not maintainable inasmuch as no public trust

existed and the properties were private properties of

the defendant. On these pleadings, a number of issues

were framed of which two were treated as preliminary

issues (i) whether the temple and the properties in

suit

were public charitable properties? and (ii) if not,

whether this Court has jurisdiction to try the suit?

On

the preliminary issues, the District Court gave a

judgment on 18.7.1935 against the plaintiff and

dismissed the suit. The High Court however held on

24.1.1938 that the charity was a public one covered by

Section 92 of the Code of Civil Procedure. In the

application for special leave, the Privy Council

refused

the application inasmuch as the case was at a

preliminary stage but said that the order was without

prejudice to the presentation of a fresh petition (

for

special leave) after all the issues were determined.

Later, the District Court took up the suit for

decision

on merits. The court held that allegations of breach

of

trust and misconduct were not proved and the suit was

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dismissed but "subject to the declaration already

given

by the High Court that the temple and the properties

in

possession of the defendant were public, religious and

charitable properties". The High Court affirmed the

same

on appeal by the plaintiff. The defendant came up in

appeal to the Supreme Court objecting to the

'declaration' as to the public nature of the

properties,

virtually attacking the earlier finding dated 24.1.38.

The Supreme Court vacated the 'declaration' made as to

the public character of the charity and its properties

on the ground that the said question was beyond the

scope of Section 92 CPC in the earlier suit. This

Court

also held that in a suit under Section 92 CPC the only

reliefs that could be claimed were those specified in

Section 92 CPC and "a relief praying for a declaration

that the properties in the suit are trust properties,

does not come under any of these clauses". This Court

observed:

"When the defendant denies the existence of the trust,

a declaration that the trust does exist might be made as

auxiliary to the main reliefs under the section if the

plaintiff is held entitled to it".

It was then stated by this Court that when the suit

failed for want of cause of action, there was no

warrant

for giving the plaintiff a declaratory relief as to

the

public nature of the trust under Section 92 CPC. The

finding as to the existence of a public trust in such

circumstances was not more than an obiter dictum

according to this Court. The appeal of the defendants

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was allowed and the declaration as to the trust being

a

public trust was set aside.

These three cases are therefore instances where in

spite of a specific issue and an adverse finding in an

earlier suit, the finding was treated as not res

judicata as it was purely incidental or auxiliary or

collateral to the main issue in each of these cases,

and

not necessary for the earlier case nor its foundation.

Before parting with this point, we would like to

refer to two more rulings. In Sulochana Amma Vs.

Narayanan Nair ( 1994 (2) SCC 14), this Court held

that

a finding as to title given in an earlier injunction

suit would be res judicata in a subsequent suit on

title. On the other hand, the Madras High Court, in

Uthiva Somasundareswarar Vs. Rajanga ( AIR 1965 Mad

355)

held ( see para 8 therein) that the previous suit was

only for injunction relating to the crops. May be,

the

question of title was decided, though not raised in

the

plaint. In the latter suit on title, the finding in

the

earlier suit on title would not be res judicata as the

earlier suit was concerned only with a possessory

right.

These two decisions, in our opinion, cannot be treated

as being contrary to each other but should be

understood

in the context of the tests referred to above. Each

of

them can perhaps be treated as correct if they are

understood in the light of the tests stated above. In

the first case decided by this Court, it is to be

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assumed that the tests above referred to were

satisfied

for holding that the finding as to possession was

substantially rested on title upon which a finding was

felt necessary and in the latter case decided by the

Madras High Court, it must be assumed that the tests

were not satisfied. As stated in Mulla, it all

depends

on the facts of each case and whether the finding as

to

title was treated as necessary for grant of an

injunction in the earlier suit and was also the

substantive basis for grant of injunction. In this

context, we may refer to Corpus Juris Secundum(

Vol.50,

para 735, page 229) where a similar aspect in regard

to

findings on possession and incidental findings on

title

were dealt with. It is stated:

"Where title to property is the basis of the right of

possession, a decision on the question of possession is res

judicata on the question of title to the extent that

adjudication of title was essential to the judgment; but

where the question of the right to possession was the only

issue actually or necessarily involved, the judgment is not

conclusive on the question of ownership or title".

We have gone into the above aspects in some detail

so that when a question arises before the Courts as to

whether an issue was earlier decided only incidentally

or collaterally, the Courts could deal with the

question

as a matter of legal principle rather than on vague

grounds. Point 1 is decided accordingly.

Point 2:

This point concerns the difference in the meaning

of wakf in 1928 when the suit under Section 92 of the

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Code of Civil Procedure was filed and the wider

meaning

given in 1950 in the definition of wakf under the

Bombay

Act of 1950. While the law of public Wakfs as it

stood

in 1928 did not take within its meaning a wakf where

the

Sajjadanashin could spend the income for the

maintenance of himself and his family members after

expending for the purposes of wakf, the 1950 Act

widened

the definition of public Wakf even to situations where

under the grant the Sajjadanashin could expend the

income for the maintenance of himself and his family

members. This aspect was considered in great detail

by

the Division Bench of the Gujarat High Court in Sayed

Mohammed Vs. Ali Miya ( 1972(13) Guj.LR 285). It was

pointed out in that case that the definition of Wakf

in

Section 2(19) of the Bombay Public Trusts Act, 1950

covered a permanent dedication by a person professing

Islam not only for the purposes which Islamic Law

considered as 'religious' and 'charitable' but also

which it considered as 'pious' such as where provision

was made for the benefit of the members of the

settlor's

family or of the Sajjadanashin and his family members,

who were poor. Section 2(19) covered even a wakf such

as

the one described in Section 3 of the Mussalman Wakf

Validating Act, 1913 under which any benefit was

claimable by the founder, his family, children and

descendants, - provided that the ultimate benefit in

such cases expressly or impliedly was reserved for the

poor or for any other purpose recognised by the Muslim

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Law as religious, pious or charitable purpose of a

permanent character. Section 9 of the Bombay Act

included charitable purposes also. The Gujarat High

Court pointed out as follows: (p.296)

"It could never be argued after these provisions that

the wakf is not a public trust on the ground that the entire

surplus goes to the Sajjadanashin or Mutawalli or because

the obligation was a pious obligation and not a legal

obligation so that he could dispose of surplus in any manner

he liked. This aspect cannot in any manner alter the public

character of the public trust".

We agree with the above observations of the

Gujarat High Court. The 1931 judgment arising out of

the

1928 suit treated the Wakf as 'private' on the ground

that apart from other obligations and charitable

purposes, the Sajjadanashin could spend the income for

the pious purposes also, namely for maintenance of

members of his family. But now the definition in

Section 2(19) brings in such a wakf also into its

fold.

Thus, for this reason also, the 1931 judgment does not

operate as res judicata. Point 2 is decided against

the

appellant.

Point 3:

The decision of the Assistant Charity Commissioner

on 19.1.1967 in Inquiry 14/64 filed by Peer Mohammed

Fruitwala was no doubt in a case arising under the

Bombay Act 1950. It is true that this very wakf was

held

to be private but the point is that that decision

dated

19.1.67 gets superseded by the latter judgment of the

Gujarat High Court in Sayed Mohammed Vs. Ali Miya (

1972(13) Guj.LR 285) dated 14.9.1970. The latter

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judgment governs. It is well settled that an earlier

decision which is binding between the parties loses

its

binding force if between the parties a second decision

decides to the contrary. Then, in the third

litigation,

the decision in the second one will prevail and not

the

decision in the first. We may also state that the

19.1.67 decision merely relied upon the 1931 decision

without noticing the change in the definition. Hence,

the 19.1.67 decision cannot become res judicata.

So far as the proceeding initiated in 1965, no

plea of res judicata based on it was raised in the

lower

courts in the present proceedings.

Therefore, we hold on point 3 against the

appellant. The rejection of the preliminary objection

is

confirmed. It will now be for the Assistant Charity

Commissioner to go into the merits in Inquiry No.

142/67

as directed by the Joint Commissioner in his orders

dated 17.12.73 insofar as the Rozas at Broach and

Surat

are concerned, in the light of this judgment and the

judgment of the Gujrat High Court in Sayed Mohammed

vs.

Ali Miya [1972 (13) Guj.L.R.285].

The appeal is dismissed. There will be no order as

to costs.