2004 Supreme(SC) 1472

2004(8) Supreme 875
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
Shivaraj V. Patil and B.N. Srikrishna, JJ.
The Commissioner of Endowments and Ors. -Appellants
versus
Vittal Rao and Ors. -Respondents
Civil Appeal No. 6246 of 1998
Decided on 25-11-2004
Counsel for the Parties :
For the Appellants : P.P. Rao, Sr. Advocate, B. Sridhar, Ms. P. Mahalakshmi, Ms. A. Aiyagaria and K. Ram Kumar Advocates.
For the Respondent No. 1 : Rajeev Sharma, S. Reddy, Vijay M. Chauhan, Azim H. Laskar and V.N. Raghupathy Advocates.
For the Respondent Nos. 3 and 5 : D. Ramakrishna Reddy, G. Venugopal and Ms. D. Bharathi Reddy Advocates.

IMPORTANT POINT
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.

Headnote:Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987-Sections 14, 16, 42, 80(1)(a) and (b), 87-Andhra Pradesh (Telangana Areas) Wakf Rules-Rule 156-Civil Procedure Code, 1908- Order XXIII Rule 3-A.P. Writ Proceedings Rules 1977-Rule 24-Constitution of India-Article 226-Tests and guidelines to determine whether an endowment is of public or private nature-One F donated 5 bighas of land to one G , the ancestor of respondent No. 1 for the purpose of construction of a temple-After death of G , his sister completed construction of the temple-Mutawalli of the temple mismanaged its affairs-Father of respondent 1 applied for transfer of Towliatship of temple in his name-Father of respondent 1 was held as the rightful claimant to the Towliatship-Order set aside-Father of respondent filed suit for declaration that he was the hereditary Mutawalli of the temple and for perpetual injunction against the authorities and individuals-Suit decreed in appeal-Second Appeal filed by temple Committee-Neither the Government nor the Commissioner of Endowments filed second appeal-High Court dismissed second appeal-Judgment and decree passed in favour of father of respondent 1 attained finality in Supreme Court-Commissioner of Endowments appointed an Executive Officer for management of the temple-Writ petition filed by respondent 1-Single Judge of the High Court disposed of writ petition by recording terms of compromise-Division Bench dismissed the writ appeal-Whether Division Bench of the High Court was right in not disturbing the order of the Single Judge accepting the compromise-(Yes).

       Held : 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 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. (Para 17)

       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, 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. (Para 19 to 21)

       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. (Para 22)

       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. (Para 23)

       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. (Para 29)

       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. (Para 33)