( 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 t