{"id":97527,"date":"2004-11-25T00:00:00","date_gmt":"2004-11-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-endowments-ors-vs-vittal-rao-ors-on-25-november-2004"},"modified":"2016-06-10T07:35:50","modified_gmt":"2016-06-10T02:05:50","slug":"commissioner-of-endowments-ors-vs-vittal-rao-ors-on-25-november-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-endowments-ors-vs-vittal-rao-ors-on-25-november-2004","title":{"rendered":"Commissioner Of Endowments & Ors vs Vittal Rao & Ors on 25 November, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Endowments & Ors vs Vittal Rao & Ors on 25 November, 2004<\/div>\n
Author: S V Patil<\/div>\n
Bench: Shivaraj V. Patil, B.N. Srikrishna<\/div>\n
           CASE NO.:\nAppeal (civil)  6246 of 1998\n\nPETITIONER:\nCommissioner of Endowments & Ors.\n\nRESPONDENT:\nVittal Rao & Ors.\n\nDATE OF JUDGMENT: 25\/11\/2004\n\nBENCH:\nSHIVARAJ V. PATIL & B.N. SRIKRISHNA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Shivaraj V. Patil J.\n<\/p>\n
In this appeal, the order dated 21.10.1998 made by
\nthe Division Bench of the High Court in Writ Appeal No. 429
\nof 1998 is under challenge.  Parties are before this Court for
\nthe third time in relation to the same subject matter.
\nOne Fauzdar Khan donated 5 bighas of land situated
\nat Hyderabad to one Gunnaji, the ancestor of the
\nrespondent no. 1 for the purpose of construction of a
\ntemple, now known as Sri Jangli Vittobha Temple.  Gunnaji
\ndied and after his death, his sister Suguna Bai completed
\nthe construction of the temple.  In 1939, one Golakishan
\nGir claiming himself to be the Mutawalli of the temple,
\nmismanaged its affairs.  The Government having come to
\nknow about the same, constituted a committee under Rule
\n156 of Andhra Pradesh (Telangana Areas) Wakf Rules.
\nManik Rao, father of the respondent no. 1, applied to the
\nRegistration Officer in 1962 for transfer of Towliatship of
\ntemple in his name.  The Registration Officer (the Assistant
\nSecretary of Board of Revenue) after holding inquiry by the
\norder dated 15.1.1964 held that said Manik Rao was the
\nrightful claimant to the Towliatship and consequently
\nordered for amendment of Column No. 11 of Munthakab
\nunder Section 36(c) of Hyderabad Endowment Rules.
\nAggrieved by this order, the temple committee filed an
\nappeal to the Director of Endowments, who, by his order
\ndated 29.10.1966, confirmed the aforementioned order
\ndated 15.1.1964.  The temple committee pursued the
\nmatter further by filing a revision petition before the
\nGovernment assailing the order dated 29.10.1966 made by
\nthe Director of Endowments.  The revision petition was
\nallowed and the order of the Director of Endowments
\naffirming the order of the Registration Officer was set aside
\nas is evident by G.O. Rt. No. 680 dated 17.06.1971.  It is
\nagainst this G.O. that Manik Rao filed a suit O.S. No.
\n509\/1971 in the City Civil Court, Hyderabad, for declaration
\nthat he was the hereditary Mutawalli  of the temple; for
\nperpetual injunction against the authorities and individuals,
\nrestraining them from interfering with his Towliatship and
\nfrom constituting or reconstituting any committee for the
\ntemple and for setting aside the said G.O. dated 17.6.1971.
\nThe trial court dismissed the suit.  The appeal No. A.S. No.
\n199\/77 filed against the judgment and decree of the trial
\ncourt was allowed by the first appellate court by its
\njudgment and decree dated 22.12.1978, which decreed the
\nsuit of Manik Rao granting the relief as sought for in the
\nsaid suit.  The temple committee preferred second appeal
\nbeing S.A. No. 122\/79 in the High Court against the
\njudgment dated 22.12.1978 aforementioned made by the
\nfirst appellate court.  It may be stated here itself that
\nneither the Government nor the Commissioner of
\nEndowments (defendants 1 and 2 respectively) filed second
\nappeal challenging the judgment and decree passed by the
\nfirst appellate court in favour of Manik Rao.  Although they
\nwere respondents 2 and 3 in the second appeal No. 122\/79
\nfiled by the temple committee, they did not participate.  In
\nother words, they did not put forth any plea before the High
\nCourt.  The High Court dismissed the said second appeal on
\n2.7.1979 concurring with the findings recorded by the first
\nappellate court and affirming the decree passed by it.  The
\nHigh Court held that the land in question was gifted
\nabsolutely to Gunnaji and that the Government could not
\nclaim any interest in it.  The State of Andhra Pradesh and
\nthe Temple Committee acting through its Chairman,
\napproached this Court by filing SLPs questioning the validity
\nand correctness of judgment and decree passed by the High
\nCourt in the second appeal.  This Court dismissed C.A. Nos.
\n702\/80 & 703\/80 on 12.8.1987 after granting leave in the
\nSLPs.  Thus, the judgment and decree passed in favour of
\nManik Rao by the first appellate court in A.S. No. 199\/77
\nattained finality.\n<\/p>\n
About two years later, the Commissioner of
\nEndowments, Govt. of Andhra Pradesh (appellant No. 1), by
\nhis letter dated 14.6.89 addressed to the Principal
\nSecretary, Deptt. Of Revenue, Andhra Pradesh gave a
\ndetailed report seeking permission to compromise the
\ndispute in the best interest of the temple.  In response to
\nthe said letter, Joint Secretary to the Government by
\nMemorandum dated 27.10.89 stated that a compromise
\nmight be made on certain terms.\n<\/p>\n
The Assistant commissioner of Endowments issued
\ninstructions dated 16.1.1990 to the tenants of the temple
\nproperty to pay the rents due, to Vittal Rao, the respondent
\nno. 1 herein as the entire property had been declared as his
\nprivate property by virtue of the decree passed by the civil
\ncourt in A.S. No. 199\/77 but the Deputy Commissioner of
\nEndowments by his order dated 15.6.1990 set aside the
\ninstructions dated 16.1.1990 given by the Assistant
\nCommissioner of Endowments inter alia stating that the
\nterms of compromise mentioned in the Government
\nMemorandum dated 27.10.1989 issued by the Joint
\nSecretary had not been reduced into a deed of compromise.
\nConsequently, the Assistant Commissioner withdrew his
\ninstructions dated 16.1.1990 and directed the tenants to
\ncomply with the order of the Deputy Commissioner dated
\n15.6.1990.  Thereafter on 25.6.1990, the Commissioner of
\nEndowments appointed an Executive Officer for the
\nmanagement of the temple.  The respondent no. 1 Vittal
\nRao filed writ petition No. 8970\/90 in the High Court to
\nquash the order of the Deputy Commissioner dated
\n15.6.1990 and that of the Commissioner dated 25.6.1990
\naforementioned.  The respondents 2 to 5 got impleaded as
\nparty-respondents in the above writ petition claiming to be
\ninterested persons.  In the said writ petition, the
\nrespondents 1-3, (Officers of the Endowment Department)
\nfiled W.P.M.P. No. 15438\/95 seeking direction to appoint an
\nExecutive Officer to manage the affairs of the temple and
\npermit the officer to conduct the yearly festivals pending
\ndisposal of the writ petition.  The writ petitioner
\n(respondent no. 1 herein) filed a counter affidavit stating
\nthat he was ready to accept the terms of compromise
\nsuggested in the Govt. Memo dated 27.10.1989.  Learned
\nSingle Judge by his order dated 17.10.1995 disposed of the
\nwrit petition on the submission of the learned counsel for
\nboth parties that the writ petition may be disposed of by
\nrecording the said terms of the compromise contained in
\nGovernment Memorandum dated 27.10.1989 and the
\nlearned Judge further directed to implement the terms of
\nthe compromise within four weeks from the date of the
\norder.  The respondent Nos. 1 to 3 of the Endowments
\nDepartment (appellants Nos. 1 to 3 herein) in the writ
\npetition did not file any appeal against the aforementioned
\norder of the learned Single Judge made in the writ petition
\nbut the private respondents 5-8, who were impleaded
\nsubsequently in the writ petition, contending to be the
\npurchasers of the land, filed writ appeal No. 1536\/95.  The
\nDivision Bench of the High Court by the order dated
\n13.1.1997 held that the appellants in the writ appeal having
\nnot represented themselves in the earlier proceedings when
\nthe matter came up to the Supreme Court, the decision of
\nthe Supreme Court had become final in the matter and that
\nin case they have any other right over the property, they
\nhave to approach the civil court.  Thus, the order passed by
\nthe learned Single Judge on 17.10.1995 passed in the writ
\npetition was confirmed by the High Court in the writ appeal.\n<\/p>\n
When the aforementioned writ appeal was pending,
\nsome individuals claiming to be devotees of the temple,
\nfiled W.P. No. 2830\/96 claiming to espouse public interest
\ninter alia to declare the Memo of the Government dated
\n27.10.1989 (suggesting compromise) as illegal and
\narbitrary and to direct the Endowments Department to
\nremove the respondent no. 1 from the post of hereditary
\ntrusteeship of the temple.  The Division Bench of the High
\nCourt dismissed the said writ petition on 21.2.1997.\n<\/p>\n
It is thereafter that the Govt. of Andhra Pradesh,
\nwhich was not a party to the writ appeal No. 1536\/95,
\nsought review of the order made in Writ Appeal No. 1536 of
\n1995 in RWAMP No. 2435\/97 contending that despite
\npermission granted to the Commissioner to enter into
\ncompromise by virtue of the Government Memorandum
\ndated 27.10.1989, no compromise was in fact entered into
\nand therefore, it was unenforceable and that the proposal
\nfor compromise was wrongly interpreted in earlier
\njudgments and that too on a wrong translation of the gift
\ndeed.  The Division Bench of the High Court, by its order
\ndated 12.11.1997 dismissed the review petition taking a
\nview that the earlier Supreme Court judgment in C.A. Nos.
\n702\/80 and 703\/80 attained finality so far as the
\nconstruction of gift deed made in favour of Manik Rao is
\nconcerned and that issue could not be re-opened.  On the
\nsame day, the High Court rendered a judgment in the
\ncontempt case filed by Vittal Rao against the government
\nand impleaded parties alleging that they had violated the
\nearlier judgment of the Court in Writ Appeal No.
\n1536\/1995.  The Court did not proceed with the contempt
\npetition stating that the Govt. had stated that they would
\nabide by the orders of the Court in the review petition and
\nin the contempt case.  A further direction was given that
\nthe order made in Writ Appeal No. 1536\/95 be implemented
\nwithin two months by taking into consideration the
\nobservations made by the Court in review petition.  As
\nagainst the judgment in the review petition, the
\nCommissioner of Endowments and others filed special leave
\npetition No. 22746\/97.  The said SLP was disposed of by
\nthis Court in the following terms:-\n<\/p>\n
“The learned Senior Counsel for the petitioner
\nafter some arguments seeks leave to withdraw
\nthis Special Leave Petition with a view to filing
\nappropriate proceedings for challenging the
\nconsent order in a writ petition which according
\nto him was a nullity as being fraudulent and
\ncontrary to law.  The SLP stands dismissed as
\nwithdrawn.”\n<\/p>\n
It is thereafter the present appellants filed Writ Appeal
\nNo. 429\/98.  There was delay of 739 days in filing the writ
\nappeal which was condoned.  The Division Bench of the
\nHigh Court, by the impugned judgment, dismissed the writ
\nappeal on considerations of the material on record and
\naccepting the preliminary objections raised by the
\nrespondent no. 1.  The Division Bench also held that the
\nGovernment could not go back on its assurance given in the
\ncontempt case.  Hence, this appeal.\n<\/p>\n
\tShri P.P. Rao, learned senior counsel for the
\nappellants in support of the appeal, urged the following
\ncontentions: –\n<\/p>\n
1.\tThe Division Bench of the High Court having condoned
\nthe delay in filing the writ appeal ought to have set aside
\nthe compromise said to have been arrived at between the
\nparties.  There was no concluded compromise in writing
\nsigned by the parties or their authorized representatives,
\nbut there was only proposal for compromise yet to be acted
\nupon by the Commissioner in the manner suggested by the
\nGovernment in its Memorandum dated 27.10.1989; the
\nproposed terms of compromise having been rejected by
\nrespondent No. 1, they ceased to exist in the eye of law;
\nafter filing of writ petition 8970 of 1990 containing serious
\nmisrepresentations of facts and before the same could be
\nadjudicated and their falsity exposed of by the appellants
\nthe respondent No. 1 approached the High Court with a
\nrequest that the writ petition may be disposed of recording
\nthe said compromise as per the Government Memorandum
\ndated 27.10.1989 and got the order in the writ petition
\ntaking the advantage of the absence of the Advocate
\nGeneral at the hearing.\n<\/p>\n
2.\tThe Division Bench of the High Court committed an
\nerror in not considering the effect of Sections 14, 16, 42,
\n80(1)(a) and (b) and Section 87 of the Andhra Pradesh
\nCharitable and Hindu Religious Institutions and
\nEndowments Act, 1987 (for short ‘the Act’); the Division
\nBench ought to have examined the legality of the alleged
\ncompromise in the light of these provisions as the illegality
\nwas writ large in the proposed terms of compromise.\n<\/p>\n
3.\tNot only the Government required the Commissioner
\nof Endowment to see that the above mentioned terms were
\nreduced into a deed of compromise by the parties but Order
\nXXIII Rule 3 CPC also required the compromise to be in
\nwriting and signed by the parties; no court could accept the
\ncompromise, which was not in writing and not signed by the
\nparties; therefore, the order of the learned single Judge
\naccepting the compromise not signed by the parties was in
\nviolation of Order XXIII Rule 3 CPC and consequently it was
\nvoid.  Rule 24 of the A.P. Writ Proceedings Rules, 1977
\nmakes the provisions of Order XXIII Rule 3 CPC applicable
\nto the proceedings under Article 226 of the Constitution of
\nIndia.\n<\/p>\n
4.\tHaving noted the submission of the Advocate General
\nthat he did not appear before the learned single Judge, who
\ndisposed of the writ petition in terms of the alleged
\ncompromise, the Division Bench out to have ascertained the
\nfacts as to who appeared for the official respondent Nos. 1
\nto 4 when the writ petition was disposed of; a concession
\nmade by the counsel on the question of law is not binding
\non the parties; Section 96(3) of CPC is no bar for
\nchallenging the consent order on the ground of illegality
\nand\/or fraud.\n<\/p>\n
5.\tThe learned single Judge, who disposed of the second
\nappeal No. 122\/1979 on 2.7.1979, made the following
\nobservations: –\n<\/p>\n
“As pointed out by the lower appellate
\nCourt, Ex. A-I shows that the land was
\ngifted absolutely to Gunnaji.  The
\nGovernment cannot claim any interest in
\nthe land.  The fact that Gunnaji’s sister
\nconstructed a private temple subsequently
\non a portion of the land, does not make the
\ngift of the land an endowment in favour of
\nGod.”\n<\/p>\n
There being no pleadings, no prayer and no arguments
\nbefore the learned Judge on the above aspects, it was a
\nmistake on his part to have made such observations; it is
\nsettled law that such a mistake on the part of the court
\nshall not prejudice anyone.  Further, the observations
\nquoted above were not ‘findings’ as there was no issue at
\nall warranting the same; the above extracted observations
\nin any event were outside the scope of a second appeal,
\nconsequently, they were without jurisdiction; a decree by a
\ncourt without jurisdiction is a nullity and its validity could be
\nset up whenever and wherever it is sought to be enforced
\nor relied upon, even at the stage of execution and even in
\nthe collateral proceedings.\n<\/p>\n
6.\tThe observations made by the learned single Judge
\nwhile dismissing the second appeal confirming the decree of
\nthe court below declaring respondent No. one’s father as a
\nhereditary trustee of the temple, did not create any
\nadditional right; the decree alone conclusively determines
\nthe rights of the parties.\n<\/p>\n
7.\tIt was not necessary for the appellants to challenge
\nthe orders of the High Court made in PIL and in the
\ncontempt petition as they were based on order of the
\nlearned single Judge dated 17.10.1995; the principle of
\nconsequential orders applies.\n<\/p>\n
\tThe learned counsel for respondent No. 1 on the other
\nhand made following submissions fully supporting the
\nimpugned judgment: –\n<\/p>\n
1.\tThe High Court rightly dismissed the appeal by the
\nimpugned order on the three grounds  (a) in view of
\nSection 96(3) of CPC an appeal against a consent decree
\nwas not maintainable, (b) the allegations of fraud and
\nmisrepresentation were without any basis and (c) the
\nfinding recorded in the first round of litigation operated as
\nresjudicata against the appellants.\n<\/p>\n
2.\tNeither in the review petition nor in the writ appeal
\nnor in the special leave petition filed in this Court in the
\nyear 1998 nor in the present civil appeal it was stated that
\nthe Advocate General was not present or that he did not
\nconsent to the decree being passed as recorded by the
\nlearned single Judge in the High Court in the writ petition; it
\nwas for the first time before the Division Bench of the High
\nCourt it was orally contended that the Advocate General
\nwas not present and his junior had appeared; at no point of
\ntime it was averred that the Advocate General or his junior
\nwere not authorized to appear or to compromise the matter
\nor that they had acted contrary to express instructions.\n<\/p>\n
3.\tFollowing were the circumstances in which the
\nMemorandum dated 27.10.1989 was issued: –\n<\/p>\n
a)\tThe said Memorandum was the culmination of a
\nproposal mooted by the Commissioner, Endowments
\non 14.6.1989 and accepted by the Government of
\nAndhra Pradesh on 27.10.1989.\n<\/p>\n
b)\tIn the proposal dated 14.6.1989, the Commissioner of
\nEndowment traced the entire history of litigation and
\nstated that the land in question was gifted to Gunnaji
\nand the grant covered by the gift deed was absolute in
\nview of the findings recorded by the High Court and
\nthis Hon’ble Court which were binding on the Deputy
\nCommissioner, who had to decide whether or not the
\ngrant in question was an endowment.\n<\/p>\n
c)\tIt is in this view of the matter that the Commissioner,
\nEndowment (and not the Assistant Commissioner as
\ncontended by the other side) mooted the proposal for
\ncompromise, which was accepted by the Government
\nof Andhra Pradesh.\n<\/p>\n
d)\tThe writ petition having been disposed on the basis of
\nthe said proposal mooted by the Commissioner,
\nEndowment (the appellant No. 1 herein) and accepted
\nby the Government and that too on the specific
\nrepresentation by the learned counsel for the
\nappellants that the writ petition may be disposed of on
\nthe said terms, it cannot be contended that the High
\nCourt committed any error in disposing of the writ
\npetition accordingly.\n<\/p>\n
4.\tThe consent order passed in the writ petition is not
\ncontrary to the provisions of the  Act\n<\/p>\n
a)\tIn the first round of litigation findings were recorded
\nthat there was no endowment at all; the gift in
\nquestion was not a gift to God; it was an absolute gift
\nto Gunnaji and that the temple in question was a
\nprivate temple.  This being the position, the provisions
\nof the Act are not attracted to the land in question in
\nany manner whatsoever.\n<\/p>\n
b)\tThe Commissioner, Endowments having accepted in
\nhis proposal dated 14.6.1989 that the said findings
\nwere binding on the Deputy Commissioner,
\nEndowments for the purpose of exercise of jurisdiction
\nunder Section 87 of the Act, it cannot be said that the
\ncompromise was in violation of the provisions of the
\nAct.\n<\/p>\n
5.\tIn the earlier round of litigation a clear finding is
\nrecorded that the temple in question was a private temple
\nand the said finding has attained finality.  Merely because
\nthere is reference to a Dharamshala in the gift deed it did
\nnot imply that there was an endowment of a public
\ncharacter.\n<\/p>\n
6.\tOrder XXIII Rule 3 CPC cannot be strictly applied to
\nthe proceedings under Article 226 of the Constitution of
\nIndia\n<\/p>\n
a)\tThe explanation to Section 141 of CPC states that the
\nexpression ‘proceedings’ does not include any
\nproceedings under Article 226 of the Constitution of
\nIndia.  Therefore, it cannot be said that the provisions
\nof Order XXIII Rule 3 CPC should be mandatorily
\nfollowed in the writ proceedings.\n<\/p>\n
b)\tThe High Court while exercising jurisdiction under
\nArticle 226 of the Constitution of India possesses
\ninherent powers to do justice between the parties; the
\npower of the High Court to dispose of the matter by
\nrecording consent of the parties flows from Article 226
\nof the Constitution of India and not from Order XXIII
\nRule 3 CPC.  Further, the manner in which such power
\nis to be exercised is not controlled by Order XXIII Rule
\n3 CPC.\n<\/p>\n
c)\tThe contention that Order XXIII Rule 3 CPC was
\napplicable in view of the rules framed by the Andhra
\nPradesh High Court is not correct.  The provisions of
\nCPC are applicable to the extent possible and having
\nregard to the context.  If the provisions of CPC are
\nheld to be applicable to proceedings under Article 226
\nof the Constitution, absurd consequences will follow.
\nThen it can be urged that before deciding a writ
\npetition issues should be framed under Order XIV,
\nevidence should be lead, etc.\n<\/p>\n
d)\tIn the present case admittedly the compromise  terms
\nwere available in writing in the form of memorandum
\ndated 27.10.1989 and the same were accepted.  Thus
\nprovisions of Order XXIII Rule 3 CPC stood
\nsubstantially complied with.\n<\/p>\n
7.\tThe decisions and findings recorded in the first round
\nof litigation do operate as resjudicata against the
\nappellants.\n<\/p>\n
8.\tIn view of the dismissal of Civil Appeal Nos. 702 and
\n703 of 1980 by this Court it is not open to the appellants to
\nquestion the validity of the decisions and the findings,
\nwhich stood concluded in the earlier round of litigation.
\nWe have carefully examined the rival contentions
\nurged on behalf of the parties in the light of the material
\nplaced on record.\n<\/p>\n
Late Manik Rao, father of respondent No. 1, filed suit
\nNo. OS No. 509 of 1971 in the City Civil Court at Hyderabad
\nfor declaration that the plaintiff was hereditary mutawalli
\n(trustee) of Pandarinath Temple, generally known as Jangli
\nVithoba Temple at Osman Shahi, Hyderabad City, entitled
\nto get his name entered in column No. 11 of the
\nEndowment Register, for perpetual injunction restraining
\nthe defendants from constituting or reconstituting any
\ncommittee for the temple and to set aside the order of the
\nGovernment dated 17.6.1971 covered by G.O. Rt. No. 680.
\nThe Government of Andhra Pradesh was defendant No. 1
\nand the Commissioner, Endowments (appellant No. 1
\nherein) was the defendant No. 2 in the suit.  One Vasedeve
\nNaik, a person appointed as Chairman of the Managing
\nCommittee constituted for the temple by the Government,
\nwas defendant No. 3 in the said suit.  The trial court
\ndismissed the suit on 23.3.1977.\n<\/p>\n
 \tThe First Appeal A.S. No. 199 of 1977, filed by the
\nplaintiff Manik Rao, was allowed on 22.12.1978 granting
\ndecree as sought for by the plaintiff in the suit.  Temple
\nCommittee, the third defendant in the suit, filed Second
\nAppeal S.A. No. 122 of 1979 in the High Court.  The
\nGovernment and the Endowment Commissioner (defendant
\nNos. 1 and 2) did not file any appeal challenging the decree
\npassed by the first appellate court in favour of Manik Rao,
\nfather of respondent No. 1.  In other words, they accepted
\nthe decree.  Even otherwise the said second appeal was
\nalso dismissed by the High Court on 2.7.1979 affirming the
\ndecree passed by the first appellate court.  The High Court
\nin the said judgment made in the second appeal has
\nnoticed, thus: –\n<\/p>\n
“The case of the plaintiff is that as early as
\nthe year 1809, one Khan gifted five bigas
\nof land in favour of his ancestor, Gunnaji,
\nand that subsequent to the death of
\nGunnaji, the heirs of Gunnaji were enjoying
\nthe property in succession until his father’s
\ntime and that, when his father Jagannath
\nRao was afflicted with a mental disease, he
\napplied to the Government for the
\nappointment of a Managing Committee as
\nhis son (plaintiff) was then a minor unable
\nto manage the land and the temple and
\nthat, after he attained majority, the
\nplaintiff is seeking the instant declaration.
\nThe case of the 3rd defendant, who is the
\nappellant herein, is that the land was gifted
\nin favour of a temple that the same is thus
\nan endowment in favour of the temple;\n<\/p>\n
that the document created a trust in favour
\nof Gunnaji; that the endower did not make
\nany provision in the document in regard to
\nthe management of the temple or the land
\nsubsequent to the death of Gunnaji.\n<\/p>\n
According to the 3rd defendant, the heirs of
\nGunnaji managed the properties for
\nsometime not by virtue of any legal right
\nbut for want of persons who agreed to
\nmanage and that, when the persons who
\nwere managing the property were found to
\nbe adopting malpractices, the Government
\ntook over the management in the year
\n1929 and was ever since appointing
\ncommittees with chairman for such
\ncommittees.  The 3rd defendant is one such
\nChairman appointed by the Government
\nand the plaintiff cannot therefore seek the
\ndeclaration prayer for.”\n<\/p>\n
The High Court also has recorded that although the State
\nand the Commissioner, Endowments were made parties to
\nthe second appeal, they did not participate in the appeal.
\nIn other words, they neither filed the second appeal, as
\nalready stated nor contested it.  After hearing and
\nconsidering the evidence in view of the rival contentions,
\nthe High Court has categorically recorded the findings,
\nthus: –\n<\/p>\n
“As pointed out by the lower appellate
\ncourt, Ex. A-1 shows that the land was
\ngifted absolutely to Gunnaji.  The
\nGovernment cannot claim any interest in
\nthe land.  The fact that Gunnaji’s sister
\nconstructed a private temple subsequently
\non a portion of the land, does not make the
\ngift of the land an endowment in favour of
\nGod.  The land evolves according to law on
\nthe successors of the donees and the
\nplaintiff is admittedly a successor.  The fact
\nthat, due to mal-administration or the
\nincapacity of a successor, the Government
\ntook over the management and appointed
\na committee is no ground to deny the
\nrights of the subsequent successor, which
\nflow by ordinary operation of law.”\n<\/p>\n
The original defendant Nos. 1 and 2 in the suit, i.e.,
\nGovernment of Andhra Pradesh and the Commissioner,
\nendowments although did not file second appeal against the
\ndecree passed by the first appellant court in favour of the
\nfather of respondent No. 1, they filed special leave petition
\nNo. 3427 of 1980 in this Court aggrieved by the judgment
\nand decree passed by the High Court in the aforementioned
\nsecond appeal.  Subsequently after granting leave it was
\nnumbered as Civil Appeal No. 702 of 1980.  The third
\ndefendant in the suit also filed Civil Appeal No. 703 of 1980
\nin this Court.  Both the civil appeals were dismissed by this
\nCourt by the following common order on12.8.1987: –
\n“The High Court concurred with the findings
\nof the Lower Appellate Court on a
\nconstruction of the Deed Ex. A-1.  It is now
\ncontended before us that the translation of
\nEx.A-1 is not correct.  We find from the
\njudgments of the Lower Appellate Court
\nand the High Court and the memorandum
\nof grounds of appeal before the High Court
\nthat it was not suggested anywhere that
\nthe translation is not correct.  If the
\ntranslation as set out in the judgment of
\nthe Lower Appellate Court is correct, the
\nfindings of the Lower Appellate Court and
\nthe High Court must be sustained.  The
\nappeals are therefore dismissed.  No
\ncosts.”\n<\/p>\n
It is clear from the order of this Court, extracted above,
\nthat this Court specifically recorded that the findings of the
\nlower appellate court and the High Court must be
\nsustained.  There is also reference to Ex. A-1, the gift deed,
\nwhich deed was interpreted by the first appellate court and
\nthe same interpretation was accepted by the High Court
\nholding that it conveyed absolute gift of land in favour of
\nthe ancestors of the respondent No. 1, the temple was a
\nprivate property and that the land was not an endowed
\nproperty.  Thus, in the first round of litigation the findings,
\nreferring to Exh-A-1, gift deed, recorded by the first
\nappellate court as affirmed by the High Court in the second
\nappeal that under Exh A-1, gift deed, the land was gifted
\nabsolutely to Gunnaji; the Government cannot claim any
\ninterest in the land and the construction of a private temple
\non a portion of the land did not make gift of the land an
\nendowment in favour of the God, had attained finality.
\n\tOn 14.6.1989, almost after a period of one year and
\nten months after the judgment was delivered by this Court
\nin aforementioned Civil Appeal Nos. 702 and 703 of 1980,
\nthe Commissioner, Endowments sent a detailed report to
\nthe Secretary of Revenue Department suggesting a
\ncompromise by indicating the circumstances and the
\nreasons.  In the said report, detailed history of the litigation
\nand also as to the findings recorded by the first appellate
\ncourt, High Court and Supreme Court in relation to the land
\nin question in the first round of litigation, as already stated
\nabove in detail, were stated.  This report shows that there
\nhas been proper consideration and application of mind as to
\nhow and why it was in the interest of the temple that a
\ncompromise was needed.  In response to the said
\nreport\/letter Joint Secretary to the Government of Andhra
\nPradesh by Memorandum No. 1295\/Endts-II-1\/84-21,Rev.
\ndated 27.10.1989 permitted the compromise on certain
\nterms stated therein.  On the representation made by
\nrespondent No. 1 to the Assistant Commissioner to issue
\nnecessary instructions, the Assistant Commissioner of
\nEndowment issued instructions dated 16.1.1990 to the
\ntenants of the temple property to pay the rents to
\nrespondent No. 1 as the properties had been declared as
\nhis private property.  However, the Deputy Commissioner,
\nEndowments set aside those instructions on the ground that
\nthe term of compromise mentioned in the Memorandum
\ndated 27.10.1989 had not been reduced into a deed of
\ncompromise.  Thereafter, the Assistant Commissioner,
\nEndowments, withdrew his earlier instructions.  When the
\nthings stood thus, the Commissioner of Endowments
\nappointed an Executive Officer by the order dated
\n25.6.1990 for the management of the temple.  Under these
\ncircumstances the respondent no. 1 filed Writ Petition No.
\n8970 of 1990 for setting aside the aforementioned orders of
\nthe Deputy Commissioner, Endowments dated 15.6.1990
\nand of the Commissioner, Endowments dated 25.6.1990
\nrespectively.  This writ petition was disposed of by the
\nlearned single Judge by order dated 17.10.1995.  Operative
\nportion of the said order reads: –\n<\/p>\n
“During the pendency of the writ petition
\nthe respondents filed W.P.M.P. No.
\n15438\/1995 seeking permission to appoint
\nan Executive Officer to manage the affairs
\nof the temple in question and also to
\npermit the said officer to conduct the yearly
\nfestival pending disposal of the writ
\npetition.  The writ petitioner filed a counter
\naffidavit in the said WPMP stating that he is
\nready to accept the terms and conditions
\nmentioned in the Government Memo No.
\n1295 dated 27.10.1989.  Now, counsel for
\nboth parties have represented that the writ
\npetition may be disposed of recording the
\nsaid compromise as per Government Memo
\nNo. 1295 dated 27.10.1989.  Accordingly
\nthis writ petition is disposed of in terms of
\nthe compromise both parties to implement
\nthe terms embodied in the said
\nGovernment Memo within a period of four
\nweeks from today.  Writ petition disposed
\nof accordingly.  No costs.”\n<\/p>\n
Thus, it is clear that the learned single Judge disposed of
\nthe writ petition by the consent of the parties accepting the
\ncompromise memo dated 27.10.1989.  Against this order of
\nthe learned single Judge the present appellants did not file
\nany appeal.  The private parties, who were subsequently
\nimpleaded in the writ petition before the learned single
\nJudge, filed Writ Appeal No. 1536 of 1995 aggrieved by the
\naforementioned order of the learned single Judge.  The
\nDivision Bench of the High Court dismissed the said writ
\nappeal on 13.1.1997 observing that the appellants in the
\nwrit appeal had not represented themselves in the earlier
\nproceedings when the matter came up to this Court and
\nthat the decision of this Court in the earlier round had
\nbecome final.  Officers of the Endowment Department
\nincluding the Commissioner, Endowments sought review of
\nthe order passed in the aforementioned Writ Appeal No.
\n1536 of 1995, which was dismissed on 12.11.1997 holding
\nthat the earlier judgment of this Court in Civil Appeal Nos.
\n702 and 703 of 1980 had attained finality so far as the
\nconstruction of gift deed made in favour of Manik Rao,
\nfather of respondent No. 1 and the issue could not be re-
\nopened.  Hence the order passed by the learned single
\nJudge accepting the compromise on the basis of the
\nstatement made on behalf of the parties was upheld.
\nRespondent No. 1 had also filed a contempt petition alleging
\nthe violation of the judgment of the Division Bench made in
\nWrit Appeal No. 1536 of 1995.  The Contempt Petition also
\nwas disposed of on the same day, i.e., on 12.11.1997.  In
\nthe said order it is recorded, thus: –\n<\/p>\n
“We have disposed of the Review W.A.M.P.
\n(SR) No. 84816 of 1997 today and in view
\nof the definite stand taken in the counter-
\naffidavit by the Respondents that they will
\nabide by the orders of this Court.  We are
\nof the opinion that it is not a fit case to
\nproceed with the contempt cases.  We,
\ntherefore, direct the implementation of the
\norders of this Court in Writ Appeal No.
\n1536 of 1995 by taking into consideration
\nthe observations made in the review
\nW.A.M.P. (SR) No. 84816 of 1997 which is
\ndisposed of by us today.  The Respondents
\nwill however implement the order in the
\nW.A. No. 1536 of 1995 within two months
\nfrom today.”\n<\/p>\n
Against the dismissal of the review petition the
\nCommissioner, Endowments and others filed Special Leave
\nPetition No. 22746 of 1997 before this Court.  The same
\nwas dismissed as withdrawn on the statement made by the
\nlearned counsel that the petitioners wanted to file
\nappropriate proceedings challenging the consent order
\nmade in the writ petition by the learned single Judge.  It is
\nonly thereafter the appellants herein filed Writ Appeal No.
\n429 of 1998, which was disposed of by the impugned
\njudgment.\n<\/p>\n
\tIt was not contended on behalf of the appellants, till it
\nwas raised for the first time during the course of arguments
\nbefore the Division Bench in the Writ Appeal No. 429 of
\n1998, that the learned Advocate General did not appear
\nbefore the learned single Judge and it is not the case of the
\nappellants that the counsel representing the appellants
\nbefore the learned single Judge were not authorized to
\nmake the consent statement to accept the compromise.
\nHowever, it was contended before us that a concession
\nmade on the question of law by the learned counsel does
\nnot bind the parties.  Learned Single Judge disposed of the
\nwrit petition on the representation of learned counsel for
\nthe parties recording the compromise as per the
\nGovernment Memo No. 1295 dated 27.10.1989.  The writ
\npetition was disposed of in terms of the compromise with a
\ndirection to implement them within a period of four weeks.
\nThe representation so made or consent given for disposal of
\nthe Writ Petition before the Learned Single Judge, in our
\nview, is not and does not amount to giving of concession on
\na point of law particularly when we are taking a view that
\nthe provisions of the Act have no application to the property
\nin question.  The two decisions in Nedunuri
\nKameswaramma vs.  Sampat Subba Rao<\/a> [1963) 2 SCR
\n208] and (2) B.S. Bajwa & Anr. vs.  State of Punjab &
\nOrs. [(1998) 2 SCC 523] have no application to the facts of
\nthe present case for the reasons that they were the cases
\ndealing with concession on the point of law given by the
\ncounsel and those decisions were rendered on the facts of
\nthose cases.  Further, we are of the view that in this case,
\nthere was no concession by the learned counsel on behalf of
\nthe appellants on a point of law.\n<\/p>\n
The contention that the order passed by the learned
\nsingle Judge accepting the compromise when it was not in
\nwriting and not signed by the parties could not be accepted
\nby the learned single Judge, in our view, has no force for
\nthe reasons more than one.\n<\/p>\n
The decisions in Gurpreet Singh vs Chatur Bhuj
\nGoel<\/a> [(1988) 1 SCC 270] and Banwari Lal vs.  Chando
\nDevi (Smt.)<\/a> through L.Rs. & Anr. [(1993) 1 SCC 581]
\ncited by the learned counsel for the appellants to contend
\nthat the order passed by the learned Single Judge in the
\nwrit petition based on the consent statement made on
\nbehalf of the parties when the compromise was not reduced
\nto writing and was not signed by the parties could not be
\naccepted, do not advance the case of the appellants.  These
\ndecisions dealt with the validity of the compromises arising
\nout of suits.  It is true that under Rule 24 of the Andhra
\nPradesh Writ Proceedings Rule, 1977, the provisions of the
\nCode of Civil Procedure would apply to the writ petitions or
\nthe writ appeals.  Section 141 of CPC provides that
\nprocedure provided in the Code in regard to suits shall be
\nfollowed in all proceedings in any court of civil jurisdiction.
\nBut, the explanation to Section 141 states that the
\nexpression `proceedings’ does not include any proceedings
\nunder Article 226 of the Constitution of India.  By virtue of
\nRule 24 of A.P. Writ Proceedings Rules, the provisions of
\nCivil Procedure Code could be applied as far as possible.
\nThe learned Single Judge disposed of the writ petition in
\nterms of Memorandum dated 27.10.1989 on the basis of
\nthe submissions made by the learned counsel for the
\nparties.  The Memorandum was issued by the Government
\nat the instance of the Endowment Commissioner and the
\nsame was accepted by the respondent no. 1 though not
\ninitially but during the pendency of the writ petition in the
\nHigh Court.  Further, it is not the case of the appellants that
\nthe counsel did not have authority to make a statement
\nbefore the court to accept the compromise.  In Byram
\nPestonji Gariwala vs. Union Bank of India & Ors.<\/a>
\n[(1992) 1 SCC 31], in para 39, it is held thus:-
\n“39. To insist upon the party himself
\npersonally signing the agreement or
\ncompromise would often cause undue
\ndelay, loss and inconvenience, especially in
\nthe case of non-resident persons. It has
\nalways been universally understood that a
\nparty can always act by his duly authorised
\nrepresentative. If a power-of-attorney
\nholder can enter into an agreement or
\ncompromise on behalf of his principal, so
\ncan counsel, possessed of the requisite
\nauthorisation by vakalatnama, act on
\nbehalf of his client. Not to recognise such
\ncapacity is not only to cause much
\ninconvenience and loss to the parties
\npersonally, but also to delay the progress
\nof proceedings in court. If the legislature
\nhad intended to make such a fundamental
\nchange, even at the risk of delay,
\ninconvenience and needless expenditure, it
\nwould have expressly so stated.”\n<\/p>\n
\tThe High Court while exercising jurisdiction under
\nArticle 226 of the Constitution of India has jurisdiction to
\npass appropriate orders.  Such power can neither be
\ncontrolled nor affected by the provisions of Order XXIII Rule
\n3 CPC.  It would not be correct to say that the terms of
\norder XXIII Rule 3 should be mandatorily complied with
\nwhile exercising jurisdiction under Article 226 of the
\nConstitution of India.  Otherwise anomalous situation would
\narise such as before disposing of the writ petition, issue
\nshould be framed or evidence should be recorded etc.
\nProceedings under Article 226 of the Constitution of India
\nstand on a different footing when compared to the
\nproceedings in suits or appeals arising therefrom.
\n\tThere was some dispute as to whether the learned
\nAdvocate General himself appeared on the date when the
\nwrit petition was disposed of by the learned Single Judge in
\nterms of the compromise or his junior appeared.  In the
\nimpugned judgment, it is stated that the State Government
\nwas duly represented by a lawyer.  In State of
\nMaharashtra vs.  Ramdas Shrinivas Nayak &  Anr.<\/a>
\n[(1982) 2 SCC 463], dealing with the practice and
\nprocedure regarding statement of fact recorded in the
\njudgment of a court, this Court held that such a statement
\nis conclusive and not open to be contradicted in appeal.
\nParas 4 to 8 of the said judgment read:-\n<\/p>\n
.”4.\tWhen we drew the attention of the learned
\nAttorney-General to the concession made before
\nthe High court, Shri A.K. Sen, who appeared for
\nthe State of Maharashtra before the High Court
\nand led the arguments for the respondents there
\nand who appeared for Shri Antulay before us
\nintervened and protested that he never made
\nany such concession and invited us to peruse the
\nwritten submissions made by him in the High
\nCourt. We are afraid that we cannot launch into
\nan enquiry as to what transpired in the High
\nCourt. It is simply not done. Public policy bars
\nus. Judicial decorum restrains us. Matters of
\njudicial record are unquestionable. They are not
\nopen to doubt. Judges cannot be dragged into
\nthe arena. “Judgments cannot be treated as
\nmere counters in the game of litigation (Per Lord
\nAtkinson in Somasundaram Chetty v.\n<\/p>\n
Subramanian Chetty, AIR 1926 PC 136 : 99 IC\n<\/p>\n
742).” We are bound to accept the statement of
\nthe judges recorded in their judgment, as to
\nwhat transpired in court. We cannot allow the
\nstatement of the judges to be contradicted by
\nstatements at the Bar or by affidavit and other
\nevidence. If the judges say in their judgment
\nthat something was done, said or admitted
\nbefore them, that has to be the last word on the
\nsubject. The principle is well-settled that
\nstatements of fact as to what transpired at the
\nhearing, recorded in the judgment of the court,
\nare conclusive of the facts so stated and no one
\ncan contradict such statements by affidavit or
\nother evidence. If a party thinks that the
\nhappenings in court have been wrongly recorded
\nin a judgment, it is incumbent upon the party,
\nwhile the matter is still fresh in the minds of the
\njudges, to call the attention of the very judges
\nwho have made the record to the fact that the
\nstatement made with regard to his conduct was
\na statement that had been made in error (Per
\nLord Buckmaster in Madhu Sudan Chowdhri v.
\nChandrabati Chowdhrain, AIR 1917 PC 30 : 42
\nIC 527). That is the only way to have the record
\ncorrected. If no such step is taken, the matter
\nmust necessarily end there. Of course a party
\nmay resile and an appellate court may permit
\nhim in rare and appropriate cases to resile from
\na concession on the ground that the concession
\nwas made on a wrong appreciation of the law
\nand had led to gross injustice; but, he may not
\ncall in question the very fact of making the
\nconcession as recorded in the judgment.\n<\/p>\n
5. In R v. Mellor ((1858) 7 Cox CC 454 : 6 WR
\n322 : 169 ER 1084) Martin, B. was reported to
\nhave said :\n<\/p>\n
We must consider the statement of
\nthe learned judge as absolute verity
\nand we ought to take his statement
\nprecisely as a record and act on it in
\nthe same manner as on a record of
\nCourt which of itself implies an
\nabsolute verity.\n<\/p>\n
6. In king-Emperor v. Barendra Kumar Ghose
\n(28 Cal WN 170 : AIR 1924 Cal 257 : 38 Cal LJ
\n411 : 25 Cri LJ 817), Page, J. said :\n<\/p>\n
…these proceedings emphasis the
\nimportance of rigidly maintaining the
\nrule that a statement by learned
\nJudge as to what took place during
\nthe course of a trial before him is final
\nand decisive : It is not to be criticized
\nor circumvented; much less is it to be
\nexposed to animadversion.\n<\/p>\n
7. In Sarat Chandra Maiti v. Bibhabati Debi (34
\nCal LJ 302 : AIR 1921 Cal 584 : 66 IC 433) Sir
\nAsutosh Mookerjee explained what had to be
\ndone :\n<\/p>\n
…It is plain that in cases of this
\ncharacter where a litigant feels
\naggrieved by the statement in a
\njudgment that an admission has been
\nmade, the most convenient and
\nsatisfactory course to follow,
\nwherever practicable, is to apply to
\nthe Judge without delay and ask for
\nrectification or review of the
\njudgment…\n<\/p>\n
8. So the judges’ record is conclusive. Neither
\nlawyer nor litigant may claim to contradict it,
\nexcept before the judge himself, but nowhere
\nelse. ”\n<\/p>\n
Under the circumstances, the Division Bench of the
\nHigh Court was right in not disturbing the order of the
\nlearned Single Judge accepting the compromise as
\nrepresented by learned counsel for the parties.
\nThus, on the facts of the case, it is not possible to
\nhold that the order of the learned Single Judge disposing of
\nthe writ petition was bad in law particularly when he
\nexercised his jurisdiction under Article 226 of the
\nConstitution of India.  At any rate, when the findings
\nrecorded and the decision made in the first round of
\nlitigation between the parties being binding, the appellants
\ncannot take advantage on the ground that compromise was
\nnot reduced to writing and not signed by the parties.  Even
\notherwise, if this compromise is to be annulled accepting
\nthe contention of the appellants, it would be to their
\ndisadvantage in the light of the findings recorded earlier in
\nthe first round of litigation.\n<\/p>\n
\tIn the earlier round of litigation, it was specifically
\nheld that the gift deed did not create an endowment and
\nthe temple in question was not a public temple and the land
\nwas gifted absolutely to Gunnaji.  In a private trust, the
\nbeneficiaries are specific individuals and in a public trust,
\nthe beneficiary is general public as a class.  In a private
\ntrust, the beneficiaries can be ascertained whereas in a
\npublic trust, they are incapable of ascertainment.  In the
\npresent case, the ascertained individual was Gunnaji.  This
\nposition is clear from the decision in Deoki Nandan vs.
\nMurlidhar<\/a> [(1956) SCR 756].\n<\/p>\n
\tMere use of the premises as a `Dharamshala’ for
\nnumber of years could not lead to an inference that the
\nsame belongs to a public trust.  Whether an endowment is
\nof public or private nature, depends on the facts of each
\ncase satisfying certain tests and guidelines.  This position is
\nevident from the judgment of this Court in Kuldip Chand &
\nAnr. vs. Advocate-General<\/a> to Government of H.P. &
\nOrs. [(2003) 5 SCC 46].  Para 34 of the said judgment
\nreads:-\n<\/p>\n
“Long user of a property as Dharamsala by itself
\nwould not lead to an inference that dedication of
\nthe property by Kanwar Bir Singh in favour of
\nthe public was complete and absolute.  Had such
\ndedication been made, the same was expected
\nto be recorded in the revenue records.”
\nThe argument that the impugned order is unsustainable
\non the ground that the Division Bench did not consider the
\neffect of Sections 14, 16, 42, 80(1)(a) and (b) and Section 87
\nof the Act also does not help the appellants in the light of the
\nspecific finding of fact that the gift made in Exh. A-1 in respect
\nof the land was absolute in favour of the ancestors of the
\nrespondent No.1, the temple was a private temple and the
\nland was not endowed under the gift deed.  As is evident from
\nSection 1(3) of the Act, it applies to all public charitable
\ninstitutions and endowments whether registered or not. This
\nbeing the position, having regard to the findings as to the
\nnature and scope of the gift of the land in favour of the
\nancestors of the respondent no. 1, the temple was a private
\ntemple and the land was not endowed under the gift deed, the
\nDivision Bench did commit no error in not considering the
\neffect of the aforementioned Section of the Act when the Act
\nitself did not apply to the properties in question.
\n\tIn the suit O.S. No. 509\/1971, although no specific
\nissue was raised as to the scope and nature of the gift
\ndeed, the Commissioner of Endowments (appellant no. 1) in
\nthe written statement, had raised a plea that the gift deed
\nmerely gave general power of attorney to Gunnaji.  In that
\nsituation, in order to decide the issues that arose for
\nconsideration in the suit, it was necessary to decide as to
\nwhat rights were conferred by the gift deed on Gunnaji and
\nwhat was the nature and scope of the gift deed.  It cannot
\nbe said that these aspects as to the nature and scope of the
\ngift deed and the rights that were conferred on Gunnaji did
\narise for consideration. Both the parties knew about the
\nsame.  The High Court in the second appeal No. 122\/79, as
\nalready stated above, noticing the findings of the lower
\nappellate court, recorded a findings that the land was gifted
\nto Gunnaji absolutely, the Government could not claim any
\ninterest, temple constructed on a portion of the land was a
\nprivate temple and it did not make the gift of the land an
\nendowment in favour of the God.  These findings have
\nattained finality.  Failure to frame a formal issue by the
\ncourt would not invalidate the findings of the binding
\njudgment between the parties.  The aforementioned
\nfindings against the appellants could neither dilute nor
\ndeprive their binding character merely because specific
\nissue was not raised in the suit.  It was also contended that
\nin the suit, father of the respondent no. 1 claimed only
\ndeclaration as to his Mutawalliship and if he was Mutawalli,
\nthe question of claiming absolute right over the land did not
\narise.  In the suit, one of the reliefs sought by Manik Rao
\nwas that the order passed by the appellant no. 1 holding
\nthat the gift in favour of Gunnaji was an endowment be set
\naside which relief was ultimately granted to Manik Rao.  For
\nsetting aside the order of the appellant no. 1, it was
\nnecessary to consider the nature and scope of gift deed
\nand, therefore, the finding in that regard, which had
\nattained finality, could not be re-opened.  Merely because
\nManik Rao claimed declaration of his mutawalliship under
\nmisconception or wrongly, that does not affect the merit of
\nthe case of the respondent no. 1 when there are positive
\nand categorical findings as to the nature and scope of the
\ngift deed conferring absolute right over the land in
\nquestion.  It is pertinent to state here itself that the findings
\nof the first appellate court and the second appellate court
\nregarding the nature of the gift deed were specifically
\nimpugned by the appellants in Civil Appeal Nos. 702 and
\n703 of 1980 and thus the issue was raised.  The contention
\nwas raised in the aforementioned appeals before this Court
\nthat the courts below had wrongly interpreted the gift deed
\nand the findings should be overturned.  This Court in the
\njudgment dated 12th August, 1987 made in the said appeals
\nhas clearly stated that the findings of the lower appellate
\ncourt and the High Court must be sustained.  It may also be
\nnoticed that the appellants challenged the judgment of the
\nfirst appellate court and the High Court in the first round of
\nlitigation before this Court substantially on the grounds
\nwhich are urged in the present appeal.  Some decisions are
\ncited on the question as to whether the judgments in the
\nfirst round of litigation operate as res judicata and whether
\nthey are binding on the parties.\n<\/p>\n
\tThe decision  in Mathura Prasad Bajoo Jaiswal &
\nOrs. Vs. Dossibai N.B. Jeejeebhoy [(1970) 3 SCR 830]
\nand Madhvi Amma Bhawani Amma & Ors. Vs.
\nKunjikutty Pillai Meenakshi Pillai & Ors. [(2000) 6 SCC
\n301] relied on by the learned counsel for the appellants to
\nsupport the contention that any observation made or
\nfinding given in the judgment in the absence of an issue
\nframed does not operate as res judicata.  In the first case,
\nthe question that arose for consideration was whether a
\ndecision relating to the jurisdiction of a court erroneously
\ndecided would operate as res judicata subsequently.  This
\nCourt held that by an erroneous decision, if the court
\nassumes jurisdiction which it does not possess under the
\nstatute, such a decision would not operate as res judicata
\nbetween the parties.  This is not a decision on the point that
\na finding given by the courts having jurisdiction on the
\nquestion of fact, does not bind the parties or such a finding
\ndoes not operate as res judicata.  In the second case, the
\nquestion for consideration was whether an order of granting
\nsuccession certificate under Section 373 of the Indian
\nSuccession Act, 1925 would operate as res judicata to the
\nsuit for partition in a civil court between the same parties.
\nThis Court held that the finding recorded while granting
\nsuccession certificate did not operate as res judicata in the
\nsuit filed for partition in a civil court. It was noticed that the
\ngrant of succession certificate falls under Part X of the said
\nAct.  Under Section 387 of the Act, no decision under Part X
\nupon any question of right between the parties shall be held
\nto bar the trial of the same question in any suit or in any
\nother proceeding between the same parties.  In para 16 of
\nthe judgment, it is stated thus:-\n<\/p>\n
“16.\tThis leaves no room for doubt.  Thus any
\nadjudication made under Part X of this Act which
\nincludes Section 373 does not bar the same
\nquestion being raised between the same parties
\nin any subsequent suit or proceeding.  This
\nprovision takes the decisions under Part X of the
\nAct outside the purview of Explanation VIII to
\nSection 11.  This gives protective umbrella to
\nward off from the rays of res judicata to the
\nsame issue being raised in a subsequent suit or
\nproceedings.”\n<\/p>\n
Rameshwar Dayal vs. Banda (Dead)<\/a> through His
\nLRs. & Anr. [(1993) 1 SCC 531] also does not help the
\nappellants.  That was a case where question of title was
\nincidentally determined by the Small Causes Court and
\nwhen a plea of res judicata was sought to be raised in a
\nsubsequent suit based on title, the Court held that there
\nwas no bar of res judicata.  The question of title incidentally
\nconsidered by the Small Cause Court in eviction
\nproceedings against tenant could not be taken as bar to
\napply principle of res judicata in a subsequent suit based on
\ntitle.\n<\/p>\n
\tThis Court in Raj Laxmi Dasi & Ors. Vs. Banamali
\nSen & Ors. [1953 SCR 154] while dealing with the doctrine
\nof res judicata reproduced the observations of Sir Lawrence
\nJenkings made in the judgment of the Board in
\nSheoparsan Singh vs. Ramnandan Singh [(1916) 43
\nI.A. 91] which read:-\n<\/p>\n
“In view of the arguments addressed to them,
\ntheir Lordships desire to emphasize that the rule
\nof res judicata while founded on ancient
\nprecedent, is dictated by a wisdom which is for
\nall time.  `It hath been well said’ declared Lord
\nCoke, `interest reipubliae ut sit finis litium
\notherwise, great oppression might be done under
\ncolour and pretence of law’ (6 Coke, 9a).
\nThough the rule of the Code may be traced to an
\nEnglish source, it embodies a doctrine in no way
\nopposed to the spirit of the law as expounded by
\nthe Hindu commentators.  Vijnaneswara and
\nNilakantha include the plea of a former judgment
\namong those allowed by law, each citing for this
\npurpose the text of Katyayana, who describes
\nthe plea thus:`If a person though defeated at
\nlaw, sue again, he should be answered “you
\nwere defeated formerly”.  This is called the plea
\nof former judgment.  And so the application of
\nthe rule by the courts in India should be
\ninfluenced by no technical considerations of
\nform, but by matter of substance within the
\nlimits allowed by law.”\n<\/p>\n
 (Emphasis supplied)<\/p>\n
In support of his submission, the learned counsel for
\nrespondent no. 1 contended that as long as an issue arises
\nsubstantially in a litigation irrespective of the fact whether
\nor not a formal issue has been framed or a formal relief has
\nbeen claimed, a finding on the said issue would operate as
\nres judicata, strongly relied on the decision of this Court in
\nSajjadanashin Sayed MD. B.E. EDR. (D) by LRs. Vs.
\nMusa Dadabhai Ummer & Ors. [(2000) 3 SCC 350].
\nParas 18 and 19 of the said judgment read:-
\n“18. In India, Mulla has referred to similar tests
\n(Mulla, 15th Edn., p. 104). The learned author
\nsays : a matter in respect of which relief is
\nclaimed in an earlier suit can be said to be
\ngenerally a matter “directly and substantially” in
\nissue but it does not mean that if the matter is
\none in respect of which no relief is sought it is
\nnot directly or substantially in issue. It may or
\nmay not be. It is possible that it was “directly
\nand substantially” in issue and it may also be
\npossible that it was only collaterally or
\nincidentally in issue, depending upon the facts of
\nthe case. The question arises as to what is the
\ntest for deciding into which category a case falls
\n? One test is that if the issue was “necessary” to
\nbe decided for adjudicating on the principal issue
\nand was decided, it would have to be treated as
\n“directly and substantially” in issue and if it is
\nclear that the judgment was in fact based upon
\nthat decision, then it would be res judicata in a
\nlatter case (Mulla, p. 104). One has to examine
\nthe plaint, the written statement, the issues and
\nthe judgment to find out if the matter was
\ndirectly and substantially in issue (Ishwer Singh
\nv. Sarwan Singh (AIR<\/a> 1965 SC 948) and Syed
\nMohd. Salie Labbai v. Mohd. Hanifa ((1976) 4
\nSCC 780 : AIR 1976 SC 1569). We are of the
\nview that the above summary in Mulla is a
\ncorrect statement of the law.\n<\/p>\n
19. We have here to advert to another principle
\nof caution referred to by Mulla (p. 105) :
\n“It is not to be, assumed that matters
\nin respect of which issues have been
\nframed are all of them directly and
\nsubstantially in issue. Nor is there any
\nspecial significance to be attached to
\nthe fact that a particular issue is the
\nfirst in the list of issues. Which of the
\nmatters are directly in issue and
\nwhich collaterally or incidentally, must
\nbe determined on the facts of each
\ncase. A material test to be applied is
\nwhether the court considers the
\nadjudication of the issue material and
\nessential for its decision.”\n<\/p>\n
(Emphasis supplied)
\nIn the light of what is stated above, in the case on
\nhand, in our view, it was necessary for the Court in the
\nearlier round of litigation to decide the nature and scope of
\ngift deed Exbt. A-1.  Accordingly, the courts decided that
\nthe gift made in favour of ancestors of the respondent no. 1
\nof the land was absolute and it was not an endowment for a
\npublic or charitable purpose.  On the facts of the case, it is
\nclear that though an issue was not formally framed, the
\nissue was material and essential for the decision of the case
\nin the earlier proceeding.  Hence, the bar of res judicata
\napplies to the facts of the present case.
\nIn Vithal Yeshwant Jathar vs. Shikandarkhan
\nMakhtumkhan Sardesai<\/a> [(1963) 2 SCR 285], this Court
\nobserved that “it is well settled that if the final decision in
\nany matter at issue between the parties is based by a Court
\non its decisions on more than one point  each of which by
\nitself would be sufficient for the ultimate decision  the
\ndecision on each of these points operates as res judicata
\nbetween the parties.”\n<\/p>\n
The following three decisions were relied on by the
\nlearned counsel for the appellants in support of his
\nsubmission that a `finding’ is a decision on an issue framed
\nin a suit and not otherwise:-\n<\/p>\n
(1)\tIncome-tax Officer, A-Ward,Sitapur vs. Murlidhar
\nBhagwandas, Lakhimpur Kheri<\/a>[(1964) 6 SCR 411]
\n(2)\tDaffadar Bhagat Singh & Sons Vs. The Income-tax
\nOfficer, A-Ward, Ferozepore [(1969) 1 SCR 828]
\n(3)\tC.I.T. Andhra Pradesh Vs. M\/s. Vadde Pulliah & Co.
\n[(1973) 4 SCC 121]<\/p>\n
These three decisions are rendered interpreting
\nSection 34(3) of the Income-tax Act.  They do not help the
\nappellants.  There are not the authorities to say that a
\nfinding is a decision on an issue framed in a suit.  This
\nCourt observed in the said decisions that a finding, which
\ncan be considered as relevant under the second proviso to
\nSection 34(3) of the Income-tax Act, must be one which
\nwas necessary for deciding the appeal before the authority.
\n\tIn view of the discussion made above on the point of
\nres judicata, we have taken the view that the findings
\nrecorded between the parties in the earlier round of
\nlitigation are binding on the appellants.  Thus, we do not
\nfind any merit in the submission of the learned counsel for
\nthe appellants that there are no binding findings against the
\nappellants in the earlier round of litigation on the ground
\nthat those findings were recorded without there being any
\nissue.\n<\/p>\n
In the impugned judgment, the Division Bench of the
\nHigh Court, after detailed consideration upheld both the
\npreliminary objections namely (1) as to the maintainability
\nof the appeal against the order of the learned Single Judge
\nas the said order was passed on the basis of the consent of
\nthe parties and (2) on the basis of doctrine of res judicata
\nor constructive res judicata, raised on behalf of the
\nrespondent no. 1 and rightly so in our opinion. We do not
\nfind any good ground or valid reason to interfere with the
\nimpugned judgment.\n<\/p>\n
Thus having regard to all aspects and viewed from any
\nangle, we do not find any merit in this appeal.
\nConsequently it is dismissed but with no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Endowments & Ors vs Vittal Rao & Ors on 25 November, 2004 Author: S V Patil Bench: Shivaraj V. Patil, B.N. Srikrishna CASE NO.: Appeal (civil) 6246 of 1998 PETITIONER: Commissioner of Endowments & Ors. RESPONDENT: Vittal Rao & Ors. DATE OF JUDGMENT: 25\/11\/2004 BENCH: SHIVARAJ V. PATIL & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-97527","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Endowments & Ors vs Vittal Rao & Ors on 25 November, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/commissioner-of-endowments-ors-vs-vittal-rao-ors-on-25-november-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner Of Endowments & Ors vs Vittal Rao & Ors on 25 November, 2004 - 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