Jagannathan, J.:—
The plaintiff before the trial court is the appellant herein and the cause of action for this appeal arises out of concurrent findings of the courts below that the suit filed by the plaintiff for declaration and possession of the suit property, is hit by the principle of res judicata.
2. The trial court though framed nine issues based on the pleadings of the parties, considered as preliminary issues, issue No. 5 which required the defendants to prove that the suit of the appellant is hit by principles of res judicata and issue No. 6 which required the defendants to prove that the suit is barred by limitation. The trial court answered the issue no. 6 in the negative but agreed that the suit of the plaintiff is hit by principles of res judicata. The lower appellate court confirmed the said view taken by the trial court. Hence, the plaintiff is before this court in this second appeal.
3. The facts which are relevant briefly stated are to the effect that the appellant filed a suit praying for declaration that the said Wakf Board is the owner in possession of the suit item which is Sy. No. 2 of Gubbi village measuring 2 acres 4 guntas as described in detail in the schedule to the plaint and also for farther relief of injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit item, by granting permanent injunction. The basis for the said suit is traced by the appellant to a Notification dated 6.7.65 which declared that the suit item is the property of the Wakf Board and the said Notification itself is based on the declaration said to have been given by the Khazi Abdul kuddus in the year 1963. The defendants are the L.Rs of the said Abdul Kuddus.
4. The defendants on their part took up the stand that the suit item has been declared to be the property of the aforesaid Khazi Abdul Kuddus and the said suit item was also the subject matter of an earlier suit in O.S No. 92/50-51 and also in the proceedings before this court in R.A No. 510/54. Referring to the aforesaid proceedings, the defendants contended that the question as to the ownership over the suit item has been decided earlier in the aforesaid original suit, as well as by the decision of this court and hence the suit of the plaintiff is hit by the principles of res judicata. Apart from the aforesaid defence taken, the defendants also denied the case of the plaintiff in respect of other plaint averments. The trial court having framed several issues, initially took up for consideration the issue concerning the suit being hit by principles of res judicata and being barred by time. But as already indicated by me above, the issue of limitation was held in favour of the appellant-plaintiff, but the trial court accepted the contention put forward by the defendants that the suit of the plaintiff is hit by principles of res judicata.
5. Since the trial court has dismissed the suit of the plaintiff only on this preliminary issue of suit being barred by principles of res judicata and the lower appellate court has also confirmed the said findings of the trial court, I confine the discussion, in the light of the argument addressed by the learned counsel for the parties before this court, only with regard to the question whether the suit is hit by res judicata or not.
6. Since the courts below have held that the suit of the plaintiff is not maintainable as is being hit by the principles of res judicata, in view of section 11 of the C.P.C, it is necessary, before going into the details of the arguments addressed by the learned counsel for the parties, to keep in view the provisions of section 11 of the C.P.C and as to the conditions to be satisfied in order to constitute res judicata. Section 11 of the C.P.C reads asunder:
“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.”
On a careful perusal of the aforesaid provision, it becomes clear that the following conditions must be satisfied in order to make res judicata applicable to a particular case:
(i) There must be two suits - one former suit and the other subsequent suit;
(ii) The Court which decided the former suit must be competent to try the subsequent suit;
(iii) The matter directly and subsequently in issue must be the same either actually or constructively in both the suits.
(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit;
(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits;
(vi) The parties in both the suits must have litigated under the same title.
7. The trial court has dismissed the suit of the plaintiff by holding that a finding has been recorded in O.S No. 92/50-51 that the suit item is the personal property of the father of Abdul Kuddus and the said finding was also confirmed in appeal by this court in R.A No. 510/54. Therefore, the court was of the view that as the issue concerning ownership of the suit before has been decided in the aforesaid proceedings, the appellant herein cannot be permitted to raise the same issue once again. The lower appellate court concurred with the trial court and dismissed the appeal preferred by the appellant herein by making the following observations in para. 29 of its judgment.
“In view of the foregoing ex cursus, the conclusion of the court of first instance that the judgment in O.S 92/50-51 and R.A 51/54 operate as res judicata is quite supportable and does not suffer from any infirmity which requires interference in appeal.”
8. Therefore, what is required to be examined is, whether the judgment rendered in O.S No. 92/50-51 and R.A No. 510/54 do operate as res judicata in respect of the present suit filed by the appellant herein, which question, is the substantial question of law to be answered.
9. Heard the learned counsel for the parties.
10. Sri. Prasanna Kumar, learned counsel for the appellant contended that the decision rendered in the earlier suit O.S No. 92/50-51 as well as the decision of the court in R.A No. 510/54 do not operate as res judicata because the suit that is filed now is to declare the appellant as the owner of the suit item and for other reliefs, whereas the earlier suit O.S No. 92/50-51 was in respect of the plaintiff therein approaching the trial court for the purpose of settling the scheme for the management of the trust properties. Therefore, the question of findings in O.S No. 92/50-51 operating as res judicata will not arise as far as the present suit is concerned. It was then submitted that the suit in O.S No. 92/50-51 was filed u/s 92 of the C.P.C which implies that there was no private party involved in adjudication in the said suit.
11. Referring to the observations made at para 10 of the judgment of the trial court in O.S No. 92/50-51 it is submitted that all that the court observed in the said suit was that the defendant in the said suit, namely Abdul Kuddus has prima facie right to only suit schedule items 2 and 3 and at the same time the court also observed that it was open to the trustees to be appointed, to take such steps as it may deem fit even in respect of items 2 and 3. Referring to the said observations it is submitted that the learned trial judge while disposing of the said suit, did not give any finding that Abdul Kuddus is the absolute owner of the suit item. As far as the decision rendered in R.A No. 510/54 is concerned, learned counsel for the appellant submitted that the observations that a scheme can be settled in respect of items 1 and 5 and as regards the items 2, 3 and 4 are concerned, the suit stood dismissed, also does not lead to the inference that Abdul Kuddus has been declared as the absolute owner of the present suit item as well. Therefore, the submission made is that the courts below committed error in taking the view that the decisions in the aforementioned suit and appeal do operate as res judicata.
12. The next submission made is that in so far as the suit filed in O.S No. 748/68 is concerned, the said suit ended in a compromise and even in the compromise arrived at between the parties, Abdul Kuddus has not been stated to be the absolute owner of the suit item. But all that is mentioned in the said compromise is that Abdul Kuddus is the lessor and nothing more than that. As such, even the compromise arrived at between the parties in O.S No. 748/68 cannot come in the way of the present suit being filed by the appellant. As far as the suit in O.S No. 100/83 is concerned, it is submitted that though the said suit was filed for permanent injunction by the Karnataka Board of Wakfs, the said suit was withdrawn following the present suit being instituted and hence even the said event of the suit in O.S No. 100/83 does not operate as res judicata. In other words, referring to all the above proceedings, learned counsel for the appellant contended that there has been no decision to the effect that Abdul-Kuddus is the absolute owner of the present suit item and as such, the earlier proceedings operating as res judicata cannot arise.
13. Another submission made by the learned counsel for the appellant is that Abdul Kuddus himself gave a declaration in the year 1963 and the purpose mentioned in the said declaration by Abdul Kuddus in respect of the suit item was that it was for mashrut-ul-khidmat and the said expression means permanent dedication by a person professing Islam and this is clear from section 3(r)(ii) of the Wakf Act 1995. Therefore, based on the aforesaid declaration given by Abdul Kuddus, a Notification came to be issued in the year 1965 declaring that the suit item is wakf property. It is under these circumstances, that the present suit came to be filed by the appellant.
14. Yet another submission made by the learned counsel for the appellant is that the parties to the present suit are entirely different from the ones involved in the earlier proceedings. Moreover, in the earlier suit O.S No. 92/50-51, the suit was filed u/s 92 of the C.P.C praying for settlement of a scheme and as such, the said suit was not brought to establish the right of any individual.
15. But, on the other hand, it was a suit filed to establish the right of the public in respect of a public trust and therefore the said suit is altogether different from the present suit, in as much as, in the present suit one of the prayers sought is to declare Wakf Board as the absolute owner of the suit item. As far as the other proceedings are concerned, namely the compromise in O.S No. 748/68 and the reasons that led to withdrawal of the suit in O.S No. 100/83, they are all matters which have to be gone into by the trial court at a later stage, on merits. But at the present stage, all that the trial courts were required to do was to find out as to whether the decisions in the earlier suit and regular appeal had the effect of operating as res judicata in so far as the present suit is concerned. The submission is therefore made that both the courts below lost sight of this important distinction between a suit filed u/s 92 of the C.P.C and a suit filed to declare right of ownership over the suit item and hence by no stretch of imagination can it be said that there was a decision rendered in the earlier proceedings declaring that Abdul Kuddus is the absolute owner of the suit item.
16. In support of the aforesaid submissions, the learned counsel for the appellant placed reliance on the decisions reported in AIR 1957 S.C 286, AIR 1967 S.C 1044, (1982) 1 SCC 4 : AIR 1982 S.C 20, AIR 1991 KAR 400. (2005) 4 SCC 120 : AIR 2005 S.C 454, (2003) 11 SCC 377 : AIR 2003 S.C 3349, 1989 S.C.C 487, (1974) 2 SCC 695 : AIR 1974 S.C 2141, (2000) 6 SCC 301 : AIR 2000 S.C 2301 and AIR 1952 S.C 143.
17. Relying on the aforesaid submissions and the ruling, learned counsel for the appellant argued that both the courts below were in, error in wrongly taking the view that the suit of the plaintiff is hit by principles of res judicata and as such the appeal be allowed by setting aside the judgments of the courts below and the matter be remanded to the trial court for trial.
18. On the other hand, Sri. Shanmukappa, Learned Counsel for the respondents took this court through all the earlier proceedings and submitted that the decision rendered in O.S No. 92/50-51 has the effect of declaring Abdul Kuddus as the absolute owner of the present suit item and further the said view taken by the trial court also was confirmed by this court in R.A No. 510/54 and a close reading of the observations of the courts in the aforesaid cases will leave no doubt in anyone's mind as to the declaration of title to the suit items in favour of Abdul Kuddus. It was then submitted that O.S No. 748/68 was filed by none other than the Mysore State Board of Wakfs. Though the said suit ended in a compromise, the plaintiff therein was also one of the signatories for the compromise. As such, the compromise arrived at between the parties in the said suit O.S No. 748/68 also operates as res judicata and the Wakf Board cannot be permitted now to once again seek declaration that it is the owner of the suit items, by filing the present suit through the present plaintiff.
19. As far as the withdrawal of the suit O.S No. 100/83 is concerned, the submission made is that having regard to the provision of law contained in Order 23 Rule 4(b), the appellant is precluded from preferring any fresh suit. Reference was also made to Order 23 Rule 3-A to submit that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Therefore, learned counsel for the respondents contended that the view taken by the courts below that the suit of the plaintiff is barred by res judicata can not be termed as erroneous on facts or in law.
20. Further the submission made is that even the earlier suit in O.S No. 92/50-51 was filed by certain persons who are interested in the affairs of the mosque namely Jamia Masjid and the present suit is also filed by the very same Jamia Masjid through its President and therefore the appellant cannot be permitted to open up the issue once again though the issue concerning ownership of the suit item stood settled long ago by virtue of the findings in the aforesaid suit O.S 92/50-51 and R.A No. 510/54. Reference was also made to explanation 5 and 6 of section 11 of the C.P.C to submit that any relief claimed in the plaint, which is not expressly granted by the decree, shall be deemed to have been refused and the persons litigating bonafide 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 be deemed to claim under the persons so litigating. Therefore, submission made by the learned counsel for the respondents is that no interference is called for in respect of the view taken by the courts below and the suit of the plaintiff is hit by principles of res judicata.
21. In support of the above submissions, learned counsel for the respondents placed reliance on the following decisions reported in 1989 Supp (2) SCC 356 : AIR 1990 SC 444, (1996) 3 SCC 149 : AIR 1996 SC 1211, (2003) 11 SCC 377 : AIR 2003 SC 3349, (1994) 4 SCC 53 : AIR 1994 SC 2145, 2005 SAR (CIVIL) 626, (2005) 6 SCC 166, AIR 1966 SC 1061, 2008 SAR (CIVIL) 468, 1989 Supp (1) SCC 487 : AIR 1989 SC 1834, (1992) 1 SCC 31 : AIR 1991 SC 2234, (1987) 1 SCC 5 : AIR 1987 SC 88, 2005 SAR (CIVIL) 451, 1967 (2) MYS L.J 509 (DB), ILR 1999 KAR 1264, AIR 1991 KAR 400 and (1979) 2 SCC 468 : AIR 1979 SC 289.
22. In the light of the aforesaid submissions made by the learned counsel for the parties and the rulings referred to by them, I proceed to answer the substantial question of law raised.
23. The answer to the question raised depends upon the fulfillment of the conditions which may be satisfied to constitute res judicata. The courts below have taken the view that the decision in O.S No. 92/1950-1951 and in R.A No. 510/1954 have the effect of operating as res judicata insofar as the present suit is concerned. O.S No. 92/19, 50-51 was instituted by the plaintiffs therein under Section 92 of the C.P.C and they were the persons who have interest in the mosque viz., Jamia Masjid. The prayer in the said suit read as under:
“7. The plaintiffs pray that this court be pleased to make a decree;
a) setting a scheme for the proper management of the Jamia Masjid, Gubbi Town, and the management of its properties;
b) directing the defendant to render proper accounts in respect of income and other funds that he has received for the institution and from its properties; and
c) granting such further or other reliefs as the court may deem fit to grant.”
24. While rendering decision in the said suit, the court recorded a finding that the schedule items-1, 4 and 5 of the said suit schedule belongs to the mosque and decreed the suit directing settlement of the scheme towards proper management of the Jamia Mosque and for proper administration of suit schedule items-1, 4 and 5. Another important observation made by the learned judge in the said suit is to be found at paragraph-10 of the judgment, which is as under:
“10. In his written statement the defendant claimed all the suit schedule immoveable as his own. But as observed before the evidence discloses his prima facie right to only suit schedule items 2 and 3. These two items cannot therefore be considered as belonging to the mosque. It shall however be open for the trustees to be appointed to take such steps as they may deem fit if they consider that in respect of those two items (items 2 and 3) the defendant has not satisfied the terms of the grant. ……”
25. It is, therefore, clear from the nature of the suit that is instituted that the prayer made in the plaint viz., settlement of the scheme and the decree granted by the court that in the entire suit, the question of title to the present suit item was not directly or substantially in question. Secondly, the court did not record a positive finding to the effect that Khaji Abdul Khuddus is declared to be the absolute owner of the suit item with which we are concerned in the present suit. Thirdly, as rightly submitted by the learned counsel for the appellant, the said suit in O.S No. 92/1950-1951 was by way of seeking certain directions to enforce the rights of the public in respect of a public trust.
26. As has been observed by the learned author Mulla in his Code of Civil Procedure (13th Edition) to which a reference was made by the learned counsel for the appellant, the suit that is contemplated by Section 92 of the C.P.C is a representative suit and the suit brought, not to vindicate or establish the rights of the public in respect of a public trust but to remedy an infringement of an individual right or to vindicate an appropriate right do not fall within this section. Therefore, it is clear from the scope of Section 92 of the C.P.C that the suit that was filed in O.S No. 92/1950-1951 was not in respect of any private right or to vindicate private right of an individual, whereas the present suit that is filed is clearly seeking the prayer that the Wakf Board be declared as the absolute owner of the suit item. Thus, the very nature of the suit that is filed in O.S No. 92/1950-1951 and the one with which we are concerned are entirely different.
27. Secondly, the very observation of the court at paragraph-10 of the judgment in the aforementioned suit clearly makes it clear that the trustees to be appointed can take such steps as they deem it fit if they consider that in respect of the two items i.e, items-2 and 3, the defendant therein has not satisfied the terms of the grant. The further observation by the learned judge in the aforesaid judgment at paragraph-10 that the evidence discloses prima facie right of the defendant therein to only suit items-2 and 3 cannot be construed as declaring that the defendant therein viz., Khaji Abdul Khuddus, is the absolute owner of the said two items-2 and 3. Furthermore, while decreeing the suit, it was observed by the learned judge that a direction for settlement of scheme is issued in respect of proper administration of suit items-1, 4 and 5. Thus, nowhere in the entire judgment, it has been said in clear terms that Khaji Abdul Khuddus is the absolute owner of the present suit item.
28. Coming to the decision in R.A No. 510/1954, a Division Bench of this court, while disposing of the said appeal, held that though the learned judge in his judgment in O.S No. 92/1950-1951 had come to the conclusion that items-1, 4 and 5 were trust properties, this court reversed the said finding of the learned District Judge insofar as item-4 of the said suit schedule is concerned by observing that item-4 is not established to be the property of the mosque. Ultimately, while allowing the appeal preferred by the defendant in the aforesaid O.S No. 1950-1951, this court, in the above mentioned R.A, held that a scheme shall be worked out insofar as the properties which are items-1 and 5 and as regards the suit items-2, 3 and 4 are concerned, the suit stood dismissed. On a careful reading of the judgment of this court in the aforementioned. R.A, one does not get the impression that this court had declared in clear terms that suit item-2 belongs absolutely to Khaji Abdul Khuddus.
29. As far as the compromise in O.S No. 748/1968 is concerned, the said suit, though filed by the Mysore State Board of Wakfs for declaration that the suit property constitute wakf property, ultimately ended in compromise and as per the compromise entered into between the parties viz., the Mysore State Board of Wakfs as the plaintiff and Khaji Abdul Khuddus and one H.S Gururaja Rao as the defendants, the compromise provided for the second defendant viz., H.S Gururaja Rao, to continue as the lessee under the first defendant viz., Khaji Abdul Khuddus. The said compromise though is signed by the plaintiff viz., Mysore State Board of Wakfs, also does not declare in clear terms that Khaji Abdul Khuddus is acknowledged as the absolute owner of the present suit item.
30. The last of the proceedings to be considered is the suit filed in O.S No. 100/1983 by the Karnataka Board of Wakfs by Hussain Khan, President, Jamia Masjid, against Khazi Abdul Masood and others and the said suit, though filed for permanent injunction, was withdrawn following the institution of the present suit. The order passed by the trial court in the aforesaid O.S No. 100/1983 on 22.11.1984 mentions that the suit of the plaintiff has been dismissed without costs at the request of the plaintiff therein. The present suit i.e, O.S No. 149/1998, was filed on 5.11.1984 much prior to the withdrawal of the suit in O.S No. 100/1983.
31. As far as the argument advanced by the learned counsel for the respondents invoking Order 23 Rule 4(b) of the C.P.C is concerned, the said Rule 4(b) provides that where the plaintiff withdraws from a suit or part of a claim without the permission referred to in sub-Rule (3) of Order 23, the plaintiff shall be precluded from instituting any fresh suit in respect of such subject matter dr such part of the claim. The very fact that the trial court permitted the plaintiff to withdraw the suit as dismissed and the further fact that the said suit was dismissed at the instance of the plaintiff following the plaintiff having instituted a suit much earlier i.e, on 5.11.1984 itself, the question of the plaintiff filing a fresh suit after the orders passed on 22.11.1984 does not arise.
32. As far as the submission made by the learned counsel for the respondents that Jamia Masjid itself was a party in the earlier suit in O.S No. 92/1950-1951 is concerned, no doubt, in the said suit, the plaintiffs have stated that Jamia Masjid is a religious institution and owns the property described in the suit schedule and that the plaintiffs are Muslim residents of Gubbi having interest in the said mosque, that itself will not preclude the present appellant Jamia Masjid to institute the present suit having regard to the nature of the relief that is sought in the present suit as compared to the relief sought in the suit filed by the plaintiffs in O.S No. 92/1950-1951.
33. As far as reference made by the learned counsel for the respondents to Explanations 5 and 6 of section 11 of the C.P.C is concerned, it has to be mentioned that neither in the suit O.S No. 92/1950-1951 nor in the subsequent suit O.S No. 748/1968, was there any claim made by the respective plaintiffs therein, seeking a declaration that the present suit item belongs to the Wakf Board but, on the other hand, as already mentioned by me, the suit was for seeking a settlement of claim whereas the second suit ended in a compromise without any adjudication as to the title to the present suit item.
34. The present appellant Jamia Masjid through its President, has filed the suit in question seeking the relief that the Wakf Board be declared as the absolute owner of the suit item. The earlier suit i.e, O.S No. 92/1950-1951, did not involve Jamia Masjid as a plaintiff and the subsequent suit i.e, O.S No. 748/1968, also did not involve the present appellant as one of the parties. Therefore, it is clear from the above undisputed facts that the parties to the suits O.S No. 92/1950-1951 and O.S No. 748/1968 were not the same as the parties to the present suit.
35. In this regard, it is also useful to refer to a decision of the Apex Court in the case of Jaswant Singh v. Custodian of Evacuee Property, New Delhi, reported in (1985) 3 SCC 648, and, dealing with Section 11 of the C.P.C, the court held that in order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings.
36. In another decision in the case of K.B Ramachandra Raje Urs v. State of Karnataka . AIR 2001 Karnataka 512., a learned Single Judge of this court has observed that where the petitioner was not a party to the earlier proceedings, bar of res judicata is not applicable.
37. In yet another decision in the case of Munesh Kumar Agnihotri v. Lalli Prasad Gupta . AIR 1989 Allahabad 202., it has been held that where the plaintiff in latter suit was neither a party in the earlier suit nor claiming through any of the parties in the suit, res judicata is not attracted, notwithstanding that issues are identical in both suits.
38. As far as the decisions cited by the learned counsel for the parties are concerned, there can be no two opinions as regards the well settled proposition of law laid down by the Apex Court in the said decisions. In fact, one of the decisions cited by the learned counsel for the respondents is the one in the case of R. Venugopala Naidu v. Venkatarayulu Naidu Charities . 1989 Supp 2 SCC 356, and it is held in the said decision that a suit under Section 92 of the Code is a suit of a special nature for the protection of public rights in the Public Trusts and charities and it is for the vindication for public rights. It was also held in the said case that the named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit and, therefore, a suit under Section 92 of the Code binds not only the parties named in the suit title but all those who are interested in the trust and it is for this reason that explanation VI to Section 11 of the Code constructively bars by res judicata the entire body of interested persons from reagitating the matters directly and substantially in issue in an earlier suit under Section 92 of the Code.
39. Applying the above principles to the case on hand, it cannot be said that the issues which are directly and substantially involved in the present suit were also directly and substantially involved in the earlier suit that was filed in O.S No. 92/1950-1951.
40. As far as the contention put forward by the learned counsel for the respondents that the compromise entered into in O.S No. 748/1968 constitutes estoppel by res judicata is concerned, no doubt, in the decision cited by the learned counsel for the respondents in the case of Bhima Rama Jadhav v. Abdul Rashid @ Yaktyar Saheb . 1967 2 Mys. L.J 509., it has been held that where a compromise decree passed by a court of competent jurisdiction contains a term which is opposed to law or public policy and that decree has not been set aside in proper proceedings, that decree can be pleaded as constituting estoppel by res judicata in a subsequent proceeding between the same parties.
41. Even the aforesaid decision cannot come to the rescue of the respondents because, as already mentioned by me, the parties in the present suit and the parties in the earlier suit i.e, O.S No. 748/1968, are altogether different and secondly, even in the earlier suits which ended in compromise, all that is declared is that Khaji Abdul Khuddus is the lessor to whom the second defendant therein has to pay the rents. Thus, the said decision also cannot be of much use to the respondents. For the very same reasons, the decision in the case of Byram Pestonji Gariwala v. Union Bank of India . 1992 1 SCC 31, which lays down the proposition that a compromise decree creates an estoppel by judgment also cannot be pressed into service by the respondents.
42. As far as the decisions cited concerning the scope of this court to interfere as against the concurrent findings of facts of the courts below are concerned, no doubt, it has been held by the Apex Court in innumerable cases that High Court cannot interfere with concurrent findings of facts in second appeal. But, this proposition of law also will have to be read along with the observations of the Apex Court in the case of Kashmir Singh v. Harnam Singh . 2008 AIR SCW 2417.. The Apex Court, while dealing with interference with concurrent findings of feet by the High Court, has observed thus:
“As a general rule, the High Court will not interfere with the concurrent findings of facts unless the case comes within the well recognised exceptions viz., (i) the courts below have ignored the material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”
43. Therefore, it is clear from the above law laid down by the Apex Court that where the courts have drawn wrong inferences from proved facts by applying the law erroneously, a case arises for interference in second appeal notwithstanding that it is against concurrent findings of fact.
44. In the instant case, for the reasons stated above, I am of the view that all the conditions which have been referred to by me at the beginning of this judgment with regard to what constitutes res judicata under Section 11 of the C.P.C have not been fully satisfied. Conditions 3, 4 and 5 as well as 6 of the conditions have not been fulfilled in the instant case. Both the courts below, therefore, erred in drawing wrong inferences from proved facts and also by applying the law erroneously.
45. As far as the submission made by the appellant's counsel with regard to the declaration given by Khaji Abdul Khuddus dedicating his property to Wakf Board and the notification issued declaring the suit item as Wakf property are concerned, I am of the view that it will not be proper for this court to deal with the said aspects of the case and it is a matter for the trial court to look into after considering the contentions put forward by the respective sides and, as such, I have confined the discussion only with regard to the finding of the courts below that the decision rendered in O.S No. 92/1950-1951 and R.A No. 510/1954 do operate as res judicata or not and my conclusion is that, as the conditions referred to above by me have not been satisfied in the instant case, the question of the suit of the plaintiff being barred by res judicata does not arise. As the matter has to go to the trial court for further proceedings, I refrain from making any observations touching upon the merits of the case.
46. The other decisions referred to by the learned counsel for the respondents are not, in my view, applicable to the facts of the case on hand as the application of the principles laid down in those decisions depends upon the facts peculiar to each case. In the case on hand, therefore, the other decisions referred to by the learned counsel for the respondents are inapplicable.
47. In the result, I answer the substantial question of law in favour of the appellant and proceed to pass the following order:
The appeal is allowed. The impugned judgments of the courts below are set aside. The matter is remanded to the trial court for disposal in accordance with law.