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Syed Abu Mahomed Barakat Ali and ors. Vs. Abdur Rahim and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal187
AppellantSyed Abu Mahomed Barakat Ali and ors.
RespondentAbdur Rahim and ors.
Cases ReferredAnand Rao v. Ramdas Daduram A.I.R.
Excerpt:
- .....which the learned subordinate judge holds that the decree is not binding is that in the previous suit the judge was not competent to declare whether any portion of the property was secular or not, and he further holds that the suit brought under section 92, civil procedure code cannot be compromised and the decree; therefore, is not binding on the plaintiffs.6. one initial difficulty in the way of the plaintiffs is whether in this subsequent suit the previous decree of 1910 can be questioned on the grounds stated by the subordinate judge. there was no want of jurisdiction of the judge to entertain the suit or to order the amendment as prayed for, or to direct a decree to be made on compromise of the suit. the authorities the learned subordinate judge has cited and to which reference.....
Judgment:

1. These two appeals arise out of a suit brought by five persons on the allegation that they as worshippers are interested in a public charitable trust which was wakf property and they brought the suit on behalf of the general Mussalman community as their representatives. The suit was brought against a number of defendants and the main prayer was that the compromise decree in suit No. 48 of 1910 should be declared to be not binding upon the plaintiffs and the Masulis of the Musjid. The defendants Nos. 1 to 18 are the descendants of one Mir Miran who was said to be the original Mutwali of the Mosque and the wakf property. The defendants Nos. 19 to 27 are purchasers of some of the properties which the plaintiffs alleged were included in the wakf estate; and the defendants Nos. 28 to 42 are the representatives of the plaintiffs who representing the Mahomedan community in general brought the previous suit No. 48 of 1910 under Section 92, Civil Procedure Code. The defendants Nos. 43 and 44 also are transferees of certain properties from some of the defendants of Mir Miran, defendants Nos. 1 to 18. The defendants Nos. 19 to 22 are appellants in appeal 168 and defendant No. 44 is the appellant in appeal 212. Defendant No. 26 is a respondent in appeal 168. He appears in this Court and supports the appellants.

2. Various questions of law have been elaborately discussed before us and a large number of rulings has been the subject of minute criticism by both the learned vakils appearing before us; but the main question as it seems to us involved in this case is as to the effect of the decree which was made on compromise in suit No. 48 of 1910. The Subordinate Judge has held that that decree is not binding on the present plaintiffs.

3. Two questions on this head have been argued on behalf of the appellants before us. The first is, whether the compromise decree in Title Suit 48 of 1910 is binding upon the present plaintiffs, and the next question is whether the Court had jurisdiction to set aside the decree in Suit 48 of 1910. Several other issues were raised before the Subordinate Judge and the most important of which is whether the disputed properties were wakf properties. That issue was decided in favour of the plaintiff and no question has been raised with regard to that point before us, as the argument of the appellants proceeded upon the ground that assuming that the property was valid Wakf property, whether the plaintiffs are entitled to succeed in this suit. The suit of 1910 was brought by seven persons as plaintiffs against one defendant originally on the 18th July 1910 under Section 92, Civil Procedure Code, with the sanction of the Advocate General. Subsequently there appears to have been an application for amendment of the plaint and the amendment was allowed by the District Judge before whom the case was pending on the 15th December 1910. The amendment was by the addition of a certain number of defendants who were the descendants of Mir Miran, the original defendant being his son's widow. Another amendment was by the addition of a paragraph which was paragraph 16 of the plaint where it was stated that the defendant No. 1 had executed a document in favour of her son defendant No. 2 which was a collusive paper transaction and that the said defendant No. 2 and the other defendants claiming the property mentioned in the schedule as their personal property wore taking steps to have them partitioned. The third amendment was the addition of a prayer (f) to the effect that the property in suit be declared Wakf property and that the defendants had not any personal interest for a considerable time in Court, and on the 15th September 1911 there was a petition purporting to have boon signed by six of the plaintiffs in the suit stating the terms of compromise of the suit. On the 16th September 1911 the presiding Judge made this order. 'The compromise has now been accepted by all parties to the suit. The terms are set out in the petition filed by the plaintiffs on the 15th September to which a plan is attached.' Then the order winds up by saying 'Let a decree be drawn up in terms of the petition, a copy of the plan above referred to will form a part of the decree'. A formal decree was drawn up subsequently in the presence of the pleaders of both the parties and it is the case of the appellants that the present suit is bound by the said compromise decree. The learned Subordinate Judge has held that the decree was not binding on the plaintiffs on several grounds.

4. With regard to the question that was raised in the plaint and also in the issues as to whether the compromise decree was obtained by fraud the Subordinate Judge finds that there was no fraud and we agree with this finding. But he has held that the decree is not binding, first on the ground that one of the plaintiffs did not join, secondly, that by the amendment of the plaint in the suit which was made under orders of the Court the character of the suit was changed and it ceased to be a suit under Section 92, Civil Procedure Code.

5. The Subordinate Judge says: 'The decree passed on the basis of the amended plaint was illegal and invalid and I may say without jurisdiction. The third point on which the learned Subordinate Judge holds that the decree is not binding is that in the previous suit the Judge was not competent to declare whether any portion of the property was secular or not, and he further holds that the suit brought under Section 92, Civil Procedure Code cannot be compromised and the decree; therefore, is not binding on the plaintiffs.

6. One initial difficulty in the way of the plaintiffs is whether in this subsequent suit the previous decree of 1910 can be questioned on the grounds stated by the Subordinate Judge. There was no want of jurisdiction of the Judge to entertain the suit or to order the amendment as prayed for, or to direct a decree to be made on compromise of the suit. The authorities the learned Subordinate Judge has cited and to which reference has been made by the learned Vakil for the respondents are the cases of Gyananda Asram v. Karisto Chandra Mukherji [1903-04] 8 C.W.N. 404, and Abdul Karim Abu Ahmad Khan v. Abdus Sobhan Chawdry [1915] 18 C.W.N. 1264. These cases only show that in a suit brought under Section 92, Civil Procedure Code, when a petition of com-promise is filed it is open to the Judge to say that the compromise is not lawful and be could then refuse to pass an order on the basis of the compromise. But it is another thing to say that a Judge has no jurisdiction to pass a decree on the basis of compromise in a suit brought under Section 92, Civil Procedure Code Order 23 of the Code of Civil Procedure dealing with adjustment of suits makes no such distinction.

7. It is also argued that the amendment of the plaint ought to have been made with the consent of the Advocate-General. It is not necessary for us in this case to express any opinion on that question, because assuming that such sanction was necessary it is a matter to be decided by the Judge dealing with the case in the first instance. In other words the grounds that have been stated by the Subordinate Judge and which have been pressed before us by the learned vakil for the respondents do not show that there was any want of jurisdiction on the part of the Judge making the decree.

8. With regard to the question of one of the plaintiffs not joining in the petition of compromise we have only to point out that the learned Judge stated in his order that the compromise was accepted by all parties to the suit. This is a question of fact which the learned Judge was competent to decide. It is possible that be made a mistake as regards this question of fact; but it was for the plaintiff who did not join in the compromise to bring it to the notice of the Judge, and the compromise could only be set aside by an application for review of the judgment or by appeal or such other procedure provided by the law. That a judgment passed by a competent Court having jurisdiction cannot he assailed in a subsequent suit on any ground of mistake is a proposition which has been well settled.

9. We need only refer to one of the cases decided by the Privy Council:

10. Rajwant Prosad Pandey v. Ram Ratan Gir A.I.R. 1915 P.C. 99, in which Lord Shaw in. delivering the judgment of the Privy Council says:

It is said that the Court below decided objections wrongly and that the decree was erroneous. Their Lordships think it is very trite and very familiar that a challenge of the exercise of the jurisdiction of a Court can never in law justify a denial of the existence of such jurisdiction. The former has reference to the merits of the ease, and the merits of this case have been in all points directly and substantially determined between the same parties as are now in contention at their Lordships' Bar. The familiar principle is laid down in a series of cases of which the judgment of Lord Hobhouse in Mulkharjan v. Narhari [1901] 25 Bom. 337 is not a very remote example. Their Lordships cannot countenance the laying aside of all that has happened in previous litigations, the allowing of a process to become final, and the institution of a fresh suit, the object of which is to declare that although in terms it was applicable to a particular subject of the King who was a party to the proceedings, still upon a new application to Courts of Justice, a different result should be reached, and it should be decided that the proceedings and decree did not apply to him.

11. The decree, therefore, in suit No. 48 of 1910 cannot be attacked in the present suit on any of the grounds set forth by the Subordinate Judge. In this view it is not necessary for us to consider one of the points which was very elaborately argued as to whether the amendments of the plaint mentioned above take the case out of the provisions of Section 92, Civil P.C.

12. We may state, however, that the decision in the case of Sajedur Raja Chowdhury v. Gour Mohan Das [1897] 24 Cal. 418 is against the contention of the respondents that Section 92 does not contemplate a suit against a stranger and we are bound by that decision. Although that decision appears to have been dissented from in the case of Budh Singh Dudhuria v. Nirad Baran Roy [1906] 2 C.L.J. 431 by Mr. Justice Mookerjee that learned Judge stated that the particular case before him could be decided upon another ground and he therefore referred the question to a Full Bench for decision. We are however in agreement with the decision in Sajedur Raja v. Gour Mohan Das [1897] 24 Cal. 418 and are of opinion that if a suit is brought under Section 92 of the Code with the sanction of the Advocate-General the addition of a stranger as defendant does not render the suit bad. The question then remains whether the present plaintiffs are bound by the decree in the previous suit. The previous suit, as we have already stated, was under Section 92, Civil P.C. Such a suit, as it has been held in numerous cases, is a suit brought by the plaintiffs for themselves and as representatives of the general public. We need only refer to the case of Anand Rao v. Ramdas Daduram A.I.R. 1921 P.C. 123 decided by the Privy Council. If that is so then under Section 11, Explanation VI, the plaintiffs would be bound by the decision of the previous suit if the provisions of the explanation are satisfied. Explanation VI runs thus:

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

13. Then the question is whether the plaintiffs in the previous suit were litigating bona fide in respect of a public right. It has been contended on behalf of the respondents that they were not doing so, and it seems to us that the question of litigating bona fide and the question of fraud were somewhat mixed up in the pleadings of the plaintiffs. What was argued before us is that one Imdad Ali Khan, who happens to be a pleader, although he does not practise as a pleader usually, appeared in the suit of 1910 on behalf of some of the defendants on the day when the plaint was amended. This Imdad Ali and his spiritual director, who is called Pir Barkat Ali, had afterwards purchased by separate conveyances portions of the disputed property themselves.

14. It is urged that Imdad Ali appeared on the scene by reason of a pre-arranged conspiracy that the plaint should be amended and a compromise be effected by which a portion of the property should be declared to be trust and a portion as personal property of the defendants; that this arrangement was carried out by the com-.'promise, and then subsequently the purchases were made. This circumstance may, at most, raise some sort of suspicion, but it cannot be said, in the absence of any other evidence, that there was a conspiracy to defraud a public endowment. As a matter of fact Imdad Ali Khan was one of the two pleaders for the defendants who accepted the vakalatnama, that after Imdad Ali Khan bad accepted the vakalatnama the case was pending in the Court for about ten months and the first purchase that was made by Pir Barkat Ali was in August 1912, that is, about 11 months after the compromise decree. From the various Kabalas to which our attention has been drawn by the learned Vakil for the respondents it does not appear that they paid low prices for these properties.

15. We are, therefore, unable to hold on the materials before us that Imdad Ali Khan appeared on the scene with any preconceived plan having been settled between the plaintiffs and the defendants in the suit of 1910. It may very well be that the plaintiff's in that suit were not quite sure whether they would be able to establish that the whole of the property was a public charitable trust. There was a considerable amount of money in deposit in the Collectorate on account of the acquisition of the portion of the land under the Land Acquisition Act, and it is quite possible that the plaintiffs in the previous suit thought that the compromise by which the mosque and the money in deposit were declared to be public property was sufficient gain on their part in order that they might give up the claim with regard to the tenanted lands.

16. It appears from the evidence also that after the compromise the mosque, which was in a dilapidated condition has been rebuilt at the expense of the public and it may be that on account of the compromise the Mahomedan public became assured that the mosque was public property and thought it to be a fit subject of their generosity and spent money for its improvement. There is no question that, when the plaintiffs had brought the suit they had brought it bona fide with the object of benefiting the public. The only question that arises is whether the compromise was bona fide or not, and as we hold there is nothing on the record to show that the plaintiffs were not acting bona fide in the master the present plaintiffs are barred by the rule of res judicata.

17. There was one question raised on behalf of the appellants as to whether the present suit is competent without the sanction required by Section 92, Civil P.C. It does not appear that this question was argued in the lower Court, although we are informed that it was. The learned Subordinate Judge has not discussed the question at all. The learned vakil for the respondents has cited a number of cases in support of his contention that the present suit is maintainable by the plaintiffs alone, although they described themselves as representatives of the Musalman community. We entertain considerable doubt as to the maintainability of such a suit as this without the sanction of the Advocate-General under Section 92 of the Code of Civil Procedure having regard to Sub-section 2 which has been added to the corresponding Section 539 of the old Code of Civil Procedure. It is, however, unnecessary for us to give any decided opinion having regard to the decree we are going to make.

18. With regard to appeal No. 112 in which Defendant No. 44 is the appellant the point in addition to the questions argued in the other appeal raised was that in the plaint the plaintiffs did not ask for an injunction against this particular defendant who purchased pendente lite from defendant No. 43. In the plaint no prayer was made for injunction against the defendant No. 43, but the learned Judge has made a decree against this defendant also. In our opinion without amendment of the plaint such a decree could not have been made against that defendant.

19. Having regard to the observations we have made, both the appeals must be decreed and the plaintiff's suit dismissed with costs of both Courts against the plaintiffs who are the contesting respondents here. The respondents other than the plaintiffs will bear their own costs in both Courts.


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