Judgement

Consolidated Appeal (No. 6 of 1931) from a judgment and decree of the High Court (November 30, 1927) reversing a judgment and decree of the Subordinate Judge of Masulipatam (February 5, 1925).

The action out of which this appeal arose was instituted in 1923 by the appellants, as representing the interested public, under Order 1, r. 8, of the Code of Civil Procedure, seeking a declaration that five temples of the village of Vellatur, Guntur District, were public temples, and that certain inam lands in Kowthavaram village formed the endowment of the temples, and also claiming certain other relief.

The five temples were built by Thadikonda Seshayya, the grandfather of the first respondents adoptive father. During his lifetime T. Seshayya conducted the festivals and other affairs of the deities, and by his will he directed his widow to make a permanent endowment for the temples out of his self-acquired properties. She in due course purchased lands in Kowthavaram and another village and made a formal gift of the lands to the idols. In 1838, T. Seshayyas two sons, Ganapati and Gajanana, who as dharmakartas were then conducting the festivals and the affairs of the temples, executed a deed recognizing the gift of the above lands. Ganapati died in 1857, and in 1888 Gajanana and his adopted son granted a permanent lease of the Kowthavaram to one Gopalkrishnamma.

In 1891, two persons with leave of the Court under s. 18 of the Religious Endowments Act (XX. of 1863) instituted a suit against Gajanana, his adopted son and Gopalkrishnamma, claiming that the temples were public and the alienation invalid, and praying for the removal of the dharmakartas. The main defence was that the temples and lands were private property, and that the Act (XX. of 1863) did not apply. The District Judge, whose decision was affirmed by the High Court at Madras, dismissed the suit, holding that the temples were private and that the lands were a private foundation.

The present suit was instituted in 1923 for a declaration as above stated, and the defendants pleaded (inter alia) that the suit was barred as res judicata by the decision in the suit of 1891, it being conceded that the plaintiffs in the present suit must be deemed to be claiming under the plaintiffs in the 1891 suit within the meaning of Explanation VI. Of s. 11 of the Code of Civil Procedure, and that the matter in issue in the two suits was substantially the same. The appellants alleged, however, that the 1891 suit was not a bona fide litigation.

By s. 11 of the Code of Civil Procedure (V. of 1908) " No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

" Explanation VI.—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 persons so litigating.

Sect. 44 of the Indian Evidence Act (I. of 1872) provides that " Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under s. 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

The facts appear more fully from the judgment of the Judicial Committee.

The Subordinate Judge held that the plaintiffs in the 1891 suit were guilty of gross negligence in the conduct of the proceedings before the Courts, and that therefore, in accordance with the statutory provisions, there was no res judicata.

On appeal, the High Court (Phillips and Ramesam JJ.) held