Phillips, J.

1. I agree, bat I prefer not 10 express any opinion as to the meaning of the deed of grant (Exhibit VI), but would base my decision on the two points (1) res judicata, (2) failure to prove necessity. The decision of this Court in Appeal No. 169 of 1991 is undoubtedly based upon (sic) take of fact, but is nonetheless binding upon plaintiff for that reason. He cannot now contend that the properties are not wakf; that being so, he must prove necessity for the alienation. Having failed to do this, his appeal fails and must be dismissed wish, costs, of the first respondent.

2. Plaintiffs right to retain possession of the property, if he is really in possession, does not arise in this suit for money and need not be discussed.

Devadoss, J.

3. This appeal is against the decree of the District Judge of Vizagapatam dismissing the plaintiffs suit on a mortgage-bond dated 8th December 1900 on the ground that the hypotheca are wakf or trust properties and, therefore, Could not be alienated, and that there was no necessity to mortgage the wakf properties.

4. It Is contended for the plaintiff (appellant) before us, (1) that the properties are not wakf properties, but are only burd