( 1 ) * * * *

( 2 ) IN this appeal the only question which would require consideration is whether the suit is barred by res judicata in view of the decision in the previous civil suit filed by plaintiff No. 2.

( 3 ) THE learned advocate for the appellant vehemently submitted that the finding of the Courts below that the suit filed by the plaintiffs was barred by res judicata is on the face of it illegal because (1) Civil Court has no jurisdiction to decide whether plaintiffs were the trustees of the trust and that the trust was the owner of the suit property in view of sec. 80 of the Bombay Public Trusts Act. Therefore the decision of the Civil Court in previous suit is without jurisdiction; (2) the incidental finding given by the Court in the previous suit cannot be the basis of res judicata; (3) as the previous suit was dismissed on technical grounds as the necessary certificates from the Charity Commissioners office were not produced therefore there was no decision on merits. As against this the learned advocate for the respondents vehemently submitted that the decisions given by both the Courts below are legal. He submitted that the plaintiffs cannot be permitted to file fresh suit on the same cause of action

( 4 ) IN my view the finding given by the Courts below that the suit is barred by res judicata is on the face of it illegal. Section 79 of the Bombay Public Trusts Act 1950 provides as under:79 (1) Any question whether or not a trust exists 2nd such trust is a public trust or particular property is the property of such trust shall be decided by the Deputy of Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act. (2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as the case may be shall unless set aside by the decision of the Court on application or of the High Court in appeal be final and conclusiveunder sec. 80 of the Bombay Public Trusts Act 1950 Civil Court has no jurisdiction to decide or deal with any question which is by or under the Act required to be decided or dealt with by any officer or authority under the Act or in respect of which the decision or order of such officer of authority has been made final and conclusive. Under sec. 19 of the Act the Deputy or Assistant Charity. Commissioner is required to hold an inquiry in the prescribed manner for the purpose of ascertaining inter alia whether any property is the property of trust and the names and addressees of the trustees and manager of such trust. Under sec. 21 of the Act the Deputy or Assistant Charity Commissioner is required to make parties in the register kept under sec. 17 in accordance with the findings recorded by him under sec. 20 or if appeals or applications are made 85 provided by the Act in accordance with the final decision of the competent authority. Sub-section (2) of sec. 21 provides that the entries so made shall subject to the provisions of the Act and subject to any change recorded under the provisions of the Act be final and conclusive. In view of the provisions of secs. 19 20 21 19 Nc 80 of the Bombay Public Trusts Act Civil Court would have no jurisdiction to deal with and decide whether the plaintiffs were trustees of the aforesaid trust or that the suit property was the property of such trust. Therefore the decision given by the Civil Court in regular Civil Suit No. 113 of 1973 deciding the following two issues is without jurisdiction and the findings given by the Civil Court would be void: (1) Whether plaintiffs are trustees of Shri Jam-Jodhpur Sthanakvasi Vardhaman Vanik Trust ? (2) Whether the property mentioned at para twelve of the plaint belongs to plaintiff No. 2 ?this Court in the case of Kuberbhai Shivdas v. Mahant Purshottamdas Kalyandas 2 GLR 564 and in the case of Ishwarlal Nanalal v. Ghanchi Chimanlal R. 1963 (4) ILR Gujarat 767 after considering the provisions of the Trusts Act held that the decisions given under t