1. Suit for declaration of property as wakf — dispute over whether entire property or only the mosque is wakf — multiple rounds of prior litigation. (Para 1 , 2 , 3 , 4 )
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1999 Supreme(SC) 171
1999(2) Supreme 11
Supreme Court of India
(From Madhya Pradesh High Court)
K. Venkataswami & S. Rajendra Babu, JJ.
Nazim Ali & Ors. -Appellants
versus
Anjuman Islamia Chhatarpur & Ors. -Respondents
Civil Appeal No. 2943 of 1981
Decided on 10-2-1999
Counsel for the Parties :
For the Appellants : S.K. Mehta, Advocate.
For the Respondents : M. Qamaruddin, Mrs. M, Qamaruddin and F.M.S. Anam, Advocates.
Important Point
Where in declaratory suit over a particular area falling within a plot, the defendants set up plea that entire property belonged to them which was rejected for want of proof and the decree attained finality subsequent suit for declaration of right over entire property by the defendants in earlier suit is not maintainable on the principles of res judicata.
Headnote:Code of Civil Procedure, 1908 -Section 11 - Res judicata-Suit for declaration and possession of property known as ‘Badi Takia’ over which defendant had put their Tazia-Defendants plea that entire property belong to wakf-Decree in favour of plaintiff holding only mosque could be said to be wakf property-Decree attained finality-Subsequent suit by defendants in earlier suit for declaration that defendants (plaintiff’s in earlier suit) have no right over property known as ‘Badi Takia’ - Dismissal on grounds, inter alia, suit barred by res judicata-High Court reversing findings of lower Court holding that decision in earlier suit not res judicata as entire property in ‘Badi Takia’ was not subject matter of dispute in earlier suit-Not sustainable-Though plaintiffs in earlier suit had not raised issue as to entire property in Badi Takia, defendant (plaintiffs in present suit) raised plea that entire property was wakf which was rejected-Subject matter same-Decision in earlier suit operates as res judicata-High Court’s judgment set aside.(Paras 9 to 14)
Legal Category Hierarchy
Table of Contents
2. Whether the suit is barred by res judicata and whether a prior agreement regarding religious arrangements operates as an estoppel against claims of private ownership. (Para 5 , 6 )
3. Previous litigation established that only the mosque was wakf by user, while other portions remained private; prior findings on the agreement's effect were final. (Para 8 , 10 , 11 , 12 )
4. Findings in previous litigation regarding the nature of property and the effect of agreements are binding on parties under the principle of res judicata. (Para 11 , 13 )
5. Appeal allowed — High Court judgment set aside — Trial Court decree restored. (Para 15 )
6. When does the principle of res judicata bar a subsequent suit regarding the nature of a property?
When a previous suit between the same parties has already determined whether the property is wakf or private, and those findings have become final, the parties cannot re-litigate the same issue. (Para 11 )
7. How is the status of a property as wakf determined in the absence of a formal declaration or will?
The court examines long and immemorial user to infer an implied wakf; if proof is insufficient for the entire property, only specific portions may be declared wakf. (Para 8 , 10 )
8. Does an agreement regarding the management of religious arrangements necessarily operate as an estoppel against claims of property title?
No; if an agreement relates primarily to specific arrangements (such as Muharram) and not to the settlement of ownership rights, it does not operate as an estoppel against title. (Para 12 )
Judgment
Rajendra Babu, J.-Anjuman Islamia Chhatarpur (Respondent No. 1) filed a suit (Civil Suit No. 2-A of 1974) on the file of the District Judge, Chhatarpur in Madhya Pradesh for declaration that the suit property known as ‘Badi Takia’ described in plaint sketch Ex-P-2 except for a plot measuring 6’x6 situate in it is wakf. In respect of this property there are three rounds of litigation.
2. First of them was brought by Tegh Ali and Wajid Ali by way of a suit filed on April 4, 1959 which was numbered C.S. 28 of 1960 in the court of the Civil Judge, Chhatarpur for declaration, possession and damages against the respondents on the ground that they were owners of the whole property known as ‘Badi Takia’ for over 250 years and the respondents had without consent of plaintiffs had put their Tazia on the land. The Civil Judge II Class, Chhatarpur decreed the suit declaring that the plaintiffs are title holders, owners and occupiers of ‘Badi Takia’ and the respondent had committed trespass by keeping their Tazia on the suit land. In the appeal referred against that decree the Appellate Court reversed the decree of the trial Court and held the property to be wakf property. The matter was carried successfully further in second appeal to the High Court. As against the judgment in the second appeal, an appeal was filed in this Court being Civil Appeal No. 2527 of 1966 which was dismissed upholding the judgment of the High Court in second appeal.
3. Second round of litigation was commenced thereafter by the respondents seeking recovery of Rs. 597.71 paisa for repairs of Mosque against defendants in the suit, Munshi Tegh Ali, Mohammad Jakir and others, regarding fund collected for repair of Mosque. The trial Court held that the Mosque is a wakf property but was not maintained by Anjuman Islamia and, therefore, dismissed the suit.
4. Third round of litigation was commenced thereafter by the respondents out of which the present appeal arises. In that suit the respondents sought for declaration that appellants have no right over property known as ‘Badi Takia’. The Trial Court dismissed the suit on several grounds : (i) that Mosque is a wakf property by user and not other portions of the property and the respondents are not the Mutwallis of the suit property and therefore, not competent to file the suit; (ii) that the plaintiffs not being in possession of the suit property, suit was barred by Section 34 of the Specific Relief Act; and (iii) that the suit was also barred by principle of res judicata by virtue of the decision in C.S. No. 28 of 1960 to which we have already adverted to. The appeal filed by the respondents was allowed by the High Court reversing the findings on all issues. In particular, it was held that the decision in the earlier suit in C.S. No. 28 of 1960 is not res judicata and Mosque, water tank, taps, imambada and imamchowk were wakf property by user but residential houses have not been established as wakf by user. The High Court relied upon an agreement executed by Tegh Ali and Wajid Ali on September 19, 1953 and construed that the appellants were estopped from contending that the property in ‘Badi Takia’ was not wakf property.
5. In this appeal, Shri Mehta, learned counsel for the appellants, submitted that the High Court erred in construing the effect of the agreement dated September 19, 1953 and ought to have given due weight to the finding that had been recorded by the trial Court, appellate Court and the High Court in the earlier proceedings that the said agreement does not amount to estoppel when that finding had become final. In the previous proceedings in C.S. No. 28 of 1960 it is submitted that it is only the Mosque which had been held to be a wakf property and other properties in ‘Badi Takia’ were never treated as wakf property. He has also pointed out that there is no basis for the conclusion reached by the High Court that the Mosque and the land around the Mosque within the compound along with imam
