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.

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