JUDGMENT B.S. Chauhan and Arun Tandon, JJ.
1. These two writ petitions have been filed by the same petitioner, P. D. Tandon, and pertain to the same property covered by Survey No. 143 situate in Old Cantonment, Allahabad. Civil Misc. Writ Petition No. 13353 of 1992 was decided by a Division Bench of this Court vide judgment and order dated 7.1.2000 and the writ petition was dismissed while Civil Misc. Writ Petition No. 28558 of 2002 was decided and allowed by another Division Bench of this Court vide judgment an order dated 5.3.2003. The aforesaid judgments and orders of this Court were questioned by way of Civil Appeal No. 7284 of 2001 and Civil Appeal No. 6637 of 2003, before the Hon'ble Supreme Court. The Hon'ble Supreme Court by means of judgment and order dated 19.12.2003 accepted both the appeals. Orders under appeals were set aside and the petitions were remanded to the High Court for fresh decision by the same Bench. It would be worthwhile to reproduce the direction issued by the Hon'ble Supreme Court, as contained in para 11 of the said judgment.
"11. The property involved in both the civil appeals is the same. The dispute is between the same parties. In both the cases the High Court has interpreted the earlier judgment given by the High Court of Allahabad in Second Appeal No. 2866 of 1978. The finding recorded by the High Court in the two writ petitions regarding res jadicata is contrary to each other. To resolve the seeming contradiction it would be in the interest of justice to set aside both the impugned orders passed by the High Court and remit the cases back to the High Court to dispose of them together to avoid any inconsistency in the orders passed in both the cases."
2. On remand both the aforesaid writ petitions have been listed before this Bench for disposal in the light of the judgment and order of the Hon'ble Supreme Court.
3. The third connected Writ Petition No. 34522 of 2003 has been filed by the Cantonment Board against the consequential action taken by the Director of Defence Estate in pursuance of the judgment and order passed by this Court in Civil Misc. Writ Petition No. 28558 of 2002 dated 5.3.2003 and, therefore, the said writ petition has also been clubbed along with these two writ petitions inasmuch as the parties agree that the fate of the third writ petition would depend upon the final judgment and orders to be passed by this Court in the first two writ petitions.
4. We have heard Sri V. K. S. Chaudhary, Sri V. B. Upadhyaya, learned senior counsel with Sri H. P. Pandey advocate on behalf of the petitioner in both the writ petitions and Sri V. B. Singh learned senior counsel with Sri Mohd. Isa Khan advocate on behalf of the Cantonment Board.
Factual Matrix :
5. The property covered by Survey No. 143, Old Cantonment, Allahabad, now Bungalow No. 29, Chaitham Lines, Allahabad, was put to auction in execution of a decree against judgment debtor, M/s. George Spencer, on 25.11.1848. The same was purchased through auction sale by Lala Manohar Lal, the grand-father of the petitioner for a sum of Rs. 2,900. The auction sale was confirmed by the Court on 27.12.1848. The possession of the petitioner over the property in pursuance to the said auction sale is not in dispute.
6. The Union of India by means of resumption notice dated 26.12.1968 asserted its right of being true owner of the property and attempted to resume possession. The said resumption notice was challenged by the petitioner by means of Civil Misc. Writ Petition No. 175 of 1969 before this Court basically on the ground that the property in dispute was purchased by the predecessor . in interest of the petitioner through auction sale and it has fallen in their share by way of family settlement. The ownership of the Union of India was specifically disputed. The claim so set up by the petitioner was resisted by the Union of India. The writ petition was finally dismissed by this Court vide judgment and order dated 6.7.1970 on the ground that it raised highly disputed question of fact relating to title which could not be the subject matter of adjudication in the writ jurisdiction. The parties were relegated to the remedy of civil suit. However, on the undertaking of the Union of India it was provided that the petitioner would not be evicted except in accordance with law.
7. In the meantime Allahabad Polytechnic was put in possession of the property in question on rent by the petitioner with effect from 31.1.1969 and Allahabad Polytechnic in turn is said to have inducted another tenant in part of the premises in question, namely Harijan Sewak Sangh. The petitioner filed a Civil Suit No. 147 of 1971 in the Court of Additional District Judge, Allahabad against Allahabad Polytechnic and Harijan Sewak Sangh, Allahabad. Allahabad Polytechnic was termed as tenant and the Harijan Sewak Sangh was termed as sub-tenant. The relief prayed for in the said suit was for eviction of the defendants from the bungalow in question. The fate of the aforesaid suit has no relevance for the purposes of this suit nor the parties have referred to the same during the course of the arguments.
8. The Union of India served a notice upon the occupants of the property in question to pay rent to the Union of India instead of the alleged ex-occupier, the petitioner, failing which they will be liable to be evicted. The Allahabad Polytechnic, therefore, filed an interpleaded Suit No. 161 of 1973 in the Court of Civil Judge, Allahabad, claiming itself to be the tenant of the defendant No. 1 (petitioner). The Union of India was pleaded as defendant No. 2. The relief prayed for in the suit was that the defendants may interplead, so that the right to collect rent for occupation of the property in dispute could be determined.
9. The suit after contest by the defendants Nos. 1 and 2 was finally decided vide judgment and order dated 31.5.1977 and the defendant No. 1 (petitioner) was held entitled to receive rent of the property in question. Feeling aggrieved by the aforesaid judgment and decree of the trial court the Union of India filed First Appeal No. 555 of 1977. The appeal was allowed by the IInd Additional District Judge, Allahabad vide judgment and order dated 4.8.1978 and it was held that the Union of India (defendant No. 2) alone was entitled to receive the rent from the Allahabad Polytechnic. Being aggrieved by the judgment and order dated 4.8.1978 P. D. Tandon, the petitioner, filed second Appeal No. 2866 of 1978 before this Court. The appeal so filed was allowed by the High Court vide judgment and order dated 27.11.1981 and P. D. Tandon was held entitled to receive the rent of the property in dispute. Accordingly the judgment and decree of the trial court was affirmed. The said judgment and order of this Court was challenged by way of Civil Appeal No. 5931 of 1983 before the Hon'ble Supreme Court. The appeal was dismissed by the Hon'ble Supreme Court vide judgment and order dated 22.2.1984. (The judgment of the Hon'ble Supreme Court has been in 2986 Supp SCC 720. In the said reports the judgment of the Hon'ble High Court has been reproduced in extenso).
10. On the strength of the aforesaid judgment the petitioners moved an application before the Executive Officer/competent authority Cantonment Board, Allahabad, for their names being mutated in respect of the property, Bungalow No. 29, Chaitham Lines, Allahabad, and to be permitted to deposit property taxes etc. The petitioner also filed an application dated 8.4.1977 seeking exemption from the excess vacant land under the provisions of the U. P. Urban Land Holding Ceiling Act, 1932 (hereinafter called the Act 1932) before the competent authority. Since the aforesaid applications were not processed the petitioner filed Civil Misc. Writ Petition No. 3985 of 1992. The writ petition was disposed of with certain directions.
11. On 21.4.1992, the present Civil Misc. Writ Petition No. 13353 of 1992 was filed by the petitioners for the relief, i.e., "issue a writ of mandamus directing the respondents to mutate the name of the petitioners as owners of Bungalow No. 29 Chaitham Lines, Allahabad and also to accept the property taxi. During the pendency of this Civil Misc. Writ Petition No. 13353 of 1992 another Civil Misc. Writ Petition No. 22134 of 1993 was filed by the petitioners seeking similar relief. The said writ petition was disposed of by this Court vide judgment and order dated 19.9.1996 with the finding that the petitioner had confined his claim for a writ of mandamus requiring the competent authority under the Act 1932 to decide the application of the petitioner and, therefore, appropriate direction was issued to the competent authority to decide the application of the petitioner within four weeks of the presentation of the order.
12. Civil Misc. Writ Petition No. 13353 of 1992 was dismissed vide judgment and order dated 7.1.2000 with the finding that the judgment dated 6.7.1970 passed in Civil Misc. Writ Petition No. 175 of 1969 was binding upon the parties and, therefore, no coercive action be taken against the petitioner with regard to eviction from Bungalow No. 29, Chaitham Lines, Allahabad, except in accordance with law. This Court, however, refused to express any opinion on the issue as to whether the findings recorded in the judgment of this Court dated 4.8.1978, passed in Second Appeal No. 2866 of 1978 arising out of interpleader suit in favour of the petitioner and against the Union of India, referred to above, would operate as res judicata. The Division Bench held that such an issue can be subject matter of adjudication in a regular civil suit which may be filed by either of the parties in terms of the judgment and order of this Court dated 6.7.1970 passed in Civil Misc. Writ Petition No. 175 of 1969. The aforesaid judgment and order dated 7.1.2000, passed by the Division Bench of this Court was challenged by way of Civil Appeal No. 7284 of 2001 before the Hon'ble Supreme Court of India.
13. The application filed by the petitioner for sanction of the map under Section 181 of the Cantonment Act, 1924 was rejected by the competent authority by order dated 14.3.2002 on the ground that the petitioner is not the owner of the property. Aggrieved by the same the petitioner filed Civil Misc. Writ Petition No. 28558 of 2002. The said writ petition was decided by another Division Bench of this Court vide judgment and order dated 5.3.2003 wherein a finding was recorded that the judgment and order dated 4.8.1978 passed in Second Appeal No. 2866 of 1978 would operate as res judicata in so far as title of the petitioner over the property in question was concerned. The said order of the Division Bench dated 5.3.2003 was subject matter of challenge by the Cantonment Board before the Hon'ble Supreme Court by way of Civil Appeal No. 6637 of 2003. Both the appeals filed by the Cantonment Board which were practically in the nature of cross-appeals and the cases were clubbed together and have been decided vide judgment and order of the Hon'ble Supreme Court dated 19.12.2003, both the writ petitions have been remanded to this Court with the directions as noticed hereinabove.
14. From the aforesaid facts it is apparently clear that the basic dispute between the parties which is up for consideration in both the writ petitions is as to whether the finding recorded by the Court in Interpleader Suit No. 161 of 1973 giving rise to Second Appeal No. 2866 of 1978 would operate as res judicata in respect of the title of the parties over the property in dispute or not.
Contentions :
15. On behalf of the petitioner it is contended that the second appellate court vide judgment and order passed in Second Appeal No. 2866 of 1978 has held as follows :
"The controversy in the suit mainly turns round the determination of the question whether the property in suit belonged to the Cantonment as alleged by the Union of India or it was the private property of the predecessors of the appellant having been acquired at an auction sale.
...
The property was purchased by the predecessors of the appellant in 1848 and right from 1848 upto 1970 there is no admission of the appellant or his predecessors of the title of the Union of India or its predecessors and the appellant and his predecessors have been enjoying this property without any let or hindrance by the Union of India and consequently by lapse of time for more than 100 years have acquired title even if it is assumed that title was with the Government at any time. The admission in paper No. 67C is vague and ambiguous. No explanation was sought from the appellant regarding this admission which does not and cannot be taken to pass title which can only be passed by a deed of transfer duly registered.
Giving the matter my very anxious considerations I come to the conclusion that the property belongs to the appellant, that there is no proof of any grant in favour of the appellant and as a necessary result recourse cannot be had to a mere notice to evict the appellant."
16. In view of the aforesaid it is submitted that the issue of title over the property in question between the petitioner and the Union of India/Cantonment Board was directly and substantially in issue in the said proceedings. The said issue has been finally determined in favour of the petitioner and it has been held that the property belonged to the appellant-petitioner. The issue of title as such stands conclusively decided and the respondents cannot object to the mutation of the name of the petitioner in the records of the Cantonment Board as owner of the property nor they can refuse to accept property taxes etc. from the petitioner. It is further submitted that the issue about the interpleader suit being not maintainable was raised before the trial court which has been rejected and the decision of the trial court stands affirmed upto the Hon'ble Supreme Court and as such the question of maintainability of the said suit cannot be reopened. It is further submitted that even wrong decisions are binding upon the parties. In support of their contention reliance has been placed on the judgments of the Apex Court in State of West Bengal v. Hemant Kumar Bhattacharjee and Ors., (Para 18) ; Sobhag Singh and Ors. v. Jai Singh and Ors., ; Supreme Court Employees Welfare Association v. Union of India and Anr, and Gorie Gouri Naidu and Anr. v. Thandrothu Bodernma and Ors., .
17. On behalf of respondents it is contended that (a) The interpleader suit by a tenant for determination of title of the true owner is legally not maintainable in view of Order XXXV, Rule 5 of the Code of Civil Procedure ;(b) The finding recorded in the Interpleader Suit No. 161 of 1973 including the judgment of the Second Appellate Court in Second Appeal No. 2866 of 1978 arising therefrom which has since been affirmed by the Hon'ble Supreme Court of India cannot operate as res judicata in the facts and circumstances of the case ; (c) The notice of resumption issued against the petitioner earlier was subjected to challenge by means of writ petition which was disposed of with liberty to the parties to get their title decided by way of civil suit. The petitioner has not filed any suit for getting his title declared.
18. Lastly it has been submitted by the counsel for the respondents that the entries made in the records of the Cantonment Board as well as the G.G.Os. issued from time to time have the force of law. The petitioner has no title over the property in question. Proper remedy for the petitioner is to file a civil suit for getting his title declared.
19. Counsel for the respondents has also produced before us certain extracts of the registers maintained by the Cantonment Board in normal course of business and has made an attempt to establish from the aforesaid registers that the property in question is an old grant and therefore the petitioner cannot claim title over the property as Mr. S. Spensor did not possess any title over the property.
20. We have heard learned Counsel for the parties and gone through the record of the writ petitions.
Legal principles applicable :
21. The principles of res judicata have been enshrined in Section 11 of the Code of Civil Procedure (hereinafter called the C.P.C.) which read as follows :
"11. Res judicata.--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.
Explanation I. -- The expression 'former suit' shall-denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II. -- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former-suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI. -- Where persons litigate bona Jide in respect of a public right or of a private right claimed in common for themselves and Ors., all persons interested in such right shall, for the purposes of this 'section, be deemed to claim under the persons so litigating.
Explanation VII. -- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.--An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
22. The legal principles which regulate the applicability of res judicata have been the matter of consideration in various judgments of the Hon'ble Supreme Court of India. From the said settled legal position in "order to constitute res judicata, the following conditions must be satisfied :
(a) The matter or the issue directly and substantially in issue in the subsequent proceedings must be the same which was directly and substantially in issue in the earlier proceedings.
(b) Former suit must have been between the same parties or between the parties under whom they claim.
(c) The Court which decided the former suit must have been competent to try and decide the subsequent suit.
(d) The issue/matter has been heard and finally decided by the Court in the former suit.
(Vide Ishwar Singh v. Sarvan Singh, .)
23. For a finding on a matter to operate as res judicata between or amongst the co-defendants it is necessary to establish that (a) there was a conflict of interest between co-defendants, (b) the matter was directly and substantially in issue (c) it was necessary to decide the matter in order to decide the relief, and (d) the Court actually decided the matter in issue finally. Vide Iftekhar Ahmad and Ors. v. Syed Meharban Ali and Ors., , read with the judgments referred to above.
24. The words used in Section 11, C.P.C. are 'directly and substantially in issue', i.e., if the matter was in issue directly and substantially then the decision on the matter would be res judicata in subsequent proceedings. It is not to be assumed that every matter in respect of which issues are framed are primary and substantial in nature. Which of the matter is directly in issue and which is collateral or incidental must be determined on the facts of each case. The material tests to be applied are (a) whether the Court considered the adjudication of the issue material and essential for its decision or whether the issue was only collatory or incidentally required to be decided for the main relief claimed ; (b) the issue must have been finally determined in the earlier proceedings by the competent court of law.
25. Reference may also be had to the provisions of Order XXXV, Rule 5, C.P.C. which reads as follows :
"5. Agents and tenants may not institute interpleader-suits.--Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords."
26. From the aforesaid provision it is apparent that the said order shall not enable an agent to sue his principal, or tenants to sue their landlords for the purpose of compelling them to interplead with another person or persons other than the persons making claim through such principal or landlord. It may be pointed out that a tenant cannot maintain a suit against the landlords compelling them to interplead with the persons who claim independent right of ownership in view of Section 116 of the Evidence Act. (Reference Mulla Code of Civil Procedure, 13th Edn. Page 1351).
Decision :
27. In the light of the legal principles noticed hereinabove it is to be seen as to whether the finding recorded in the Interpleader Original Suit No. 161 of 1973 giving rise to the judgment and order of this Court in Second Appeal No. 2866 of 1978 would operate as res judicata so far as title over the property in question is concerned, or not.
28. It would be relevant to reproduce the reliefs prayed for in the interpleader suit itself which reads as follows :
"(a) The defendants Nos. 1 and 2 be asked to interplead among themselves to establish their respective rights with regard to the amount of rent due from the plaintiff in respect of premises No. 29, Chaitham Lines, Allahabad Cantonment, and declare that the plaintiff is fully discharged from the liability of the payment of rent due against it to defendants Nos. 1 and 2 upto 30.6.1973.
(b) Plaintiff be awarded costs of the suit.
(c) Any other relief deemed fair and just be passed in favour of the plaintiff against the defendants or any of them."
29. Reference may also be had to the following findings recorded by the High Court while deciding Second Appeal No. 2866 of 1978, the relevant portion of which is being reproduced hereunder :
"There is yet another matter of this case which also leads to the same conclusion. On the threat of resumption under the so called G.G.O. of 1836 the appellant was compelled to file a writ petition in the High Court and on the undertaking given by the Union of India that they do not wish to take the law in their hands and to summarily evict the appellant the writ petition was dismissed. The observations made by this Court in the writ petition are very relevant and are reproduced below :
(The judgment of writ petition is paper No. 44/2C on record.) "Since the petitioner himself has an alternative remedy for getting his title adjudicated in the court of law and since the respondents have made it clear that they are not going to evict the petitioner by force and having recourse to the course of law coupled with the fact that highly disputed question of title is involved, this is a fit case where the parties be left to the alternative remedies of law.
In the instant case, Allahabad Polytechnic was the tenant of the appellant and was paying rent to him as long as the appellant was not evicted from the house by taking recourse to the legal proceedings. The demand of rent by the Union of India was wholly uncalled for. Hence the Union of India should first have taken proceedings for ejectment of the appellant and it is alone after success in the ejectment suit should have made a demand for rent and without that the appellant's right to realize rent would not be disturbed. This leads to the conclusion that it is the appellant to whom the rent is payable by the Allahabad Polytechnic until the appellant is evicted by due process of law."
30. The operative portion of the judgment of the second appellate court reads as follows :
"In the result the appeal is allowed with cost against the Union of India and it is held that the appellant and not the Union of India is entitled to receive rent of the property in suit from the Allahabad Polytechnic. The judgment of the trial court is restored."
31. From the aforesaid finding of the second appellate court including the reliefs prayed for in the plaint read with Order XXXV, Rule 5 of the Code of Civil Procedure it cannot be disputed that the main issue for determination in the aforesaid suit proceedings was 'whether the petitioner (P. D. Tandon) or the respondent Union of India was entitled to the rent from the Allahabad Polytechnic'. The issue of title over the property was not the main issue for consideration in the said suit, nor it could have been so in view of Order XXXV, Rule 5, C.P.C. In the facts of the present case it has necessarily to be held that the matter directly and substantially in issue in the interpleader suit was confined to the right of the parties, i.e., between the parties interpleading only for collection of rent and any decision/ finding in such a suit proceeding with regard to the title over the property in question between the two parties interpleading would only be collaterally or incidentally an issue for the purposes of determination of the main issue of right to collect rent and as such cannot operate as res judicata. Legal position in that regard has been settled by the Hon'ble Supreme Court of India in the case of Sajjadanashin Syed MD. B.E. EDR. (D) v. Musa Dadabhai Ummer and Ors., , wherein it has been held as follows :
"20. The Privy Council and the Supreme Court had occasions to deal with these points. Three decisions-two of the Privy Council and one decided by the Supreme Court-can be referred to in this context as illustrations of cases where in spite of an issue and a decision in an earlier case, the finding was treated as being only collaterally or incidentally in issue and not res judicata. In Run Bahadur Singh v. Lucha Koer, ILR (1885)11 Cal 301. See Mulla, p. 107), A, a Hindu, died leaving a widow and a brother C. The widow sued B, the tenant for rent of certain property forming part of the estate of her husband. C, the husband's brother, claimed the rent on the ground that the property was joint family property and that he was entitled to the rent by survivorship. C was then joined as a defendant. Two issues were framed : (1) Whether the deceased alone received the whole rent of the property in his lifetime, or whether the rent was received by him jointly with his brother C ; (2) Whether any rent was due and if so, how much was due from B. The finding on the first issue was that the deceased alone received the whole rent in his lifetime. Subsequently, C sued the widow for declaration that he and his brother were joint, and he claimed the property by right of survivorship. The question arose whether the deceased and C were joint or separate and the earlier finding was held not res judicata inasmuch as the matter was not 'directly and substantially' in issue in the earlier suit. It was in issue in the earlier suit only 'collaterally or incidentally', as it did not cover the entire question of C's title but related merely to the joint or separate receipt of rent.
21. The next decision, again of the Privy Council is the one in Asrar Ahmed v. Durgah Committee, AIR 1947 PC 1, relating to the famous Dargah of Moinuddin Chishti, Ajmer. In a former suit of 1880 under Section 18 of the Religious Endowments Act, 1863 filed by the President and one member of the Durgah Committee for removal of one Ameer All, the mutawalli, on the ground of maladministration, the question as to the hereditary nature of the office was the subject matter of a specific issue and it was held that the office was hereditary, accepting the plea of the defendant, While decreeing the suit for removal of the mutawalli, the Court however held that if the mutawalli behaved properly, he could be reinstated as the office was hereditary. In 1918, the Durgah Committee filed a suit against Nisar Ahmad, brother of the deceased mutawalli, whom the Commissioner proposed to recognize as legal heir, and mutawalli, thus treating the office as hereditary. But in that case the Committee claimed that the office was not hereditary. Nisar Ahmed, the defendant claimed the office as hereditary and relied upon the earlier finding. This suit, 'however, abate. Nisar Ahmad died in 1940. Then Ameer Ali's son filed a suit claiming the office to be hereditary. The suit was decreed by the District Judge but dismissed on appeal. In the plaintiffs appeal to the Privy Council, their Lordships rejected the plea of res judicata and held that the issue as to the hereditary nature of the office was irrelevant in the earlier suit and the decision was incidental to and not the substance of the earlier suit.
22. The Supreme Court decided a similar case in Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai, . There the question of res judicata arose at two stages of the same proceeding. The plaintiffs filed a suit under Section 92, C.P.C. in 1928 for :
(i) a declaration that the properties under the management of the defendant were religious and charitable trust properties ;
(ii) The defendant be removed from the Gadi from possession of the properties and a suitable successor be appointed ;
(iii) The defendant be called upon to account for his period of management ; and
(iv) To frame a scheme for proper management of the .institution.
The defendant traversed the material allegations and pleaded that the suit was not maintainable inasmuch as no public trust existed and the properties were private properties of the defendant. On these pleadings, a number of issues were framed of which two were treated as preliminary issues :
(i) Whether the temple and the properties in suit were public charitable properties ; and
(ii) if not, whether this Court has jurisdiction to try the suit.
On the preliminary issues, the District Court gave a judgment on 18.7.1935 against the plaintiff and dismissed the suit. The High Court however held on 24.1.1938 that the charity was a public one covered by Section 92 of the Code of Civil Procedure. In the application for special leave, the Privy Council refused the application inasmuch as the case was at a preliminary stage but said that the order was without prejudice to the presentation of a fresh petition (for special leave) after all the issues were determined. Later, the District Court took up the suit for decision on merits. The Court held that allegations of breach of trust and misconduct were not proved and the suit was dismissed but 'subject to the declaration already given by the High Court that the temple and the properties in possession of the defendant were public, religious and charitable properties.' The High Court affirmed the same on appeal by the plaintiff. The defendant came up in appeal to the Supreme Court objecting to the 'declaration' as to the public nature of the properties, virtually attacking the earlier finding dated 24.1.1938. The Supreme Court vacated the 'declaration' made as to the public character of the charity and its properties on the ground that the same question was beyond the scope of Section 92, C.P.C. in the earlier suit. This Court also held that in a suit under Section 92, C.P.C. the only reliefs that could be claimed were those specified in Section 92, C.P.C. and (a) relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses'. This Court observed :
"When the defendant denies the existence of trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it."
It was then stated by this Court that when the suit failed for want of cause of action, there was no warrant for giving the plaintiff a declaratory relief as to the public nature of the trust under Section 92, C.P.C. The finding as to the existence of a public trust in such circumstances was not more than an obiter dictum, according to this Court. The appeal of the defendants was allowed and the declaration as to the trust being a public trust was set aside.
23. These three cases are therefore instances where in spite of a specific issue and an adverse finding in an earlier suit, the finding was treated as not res judicata as it was purely incidental or auxiliary or collateral to the main issue in each of these cases, and not necessary for the earlier case nor its foundation."
32. It is to be remembered that no interpleader suit could have been legally entertained by the trial court for the purposes of determination of title of the parties in view of the provisions of Order XXXV, Rule 5, C.P.C. and in case the judgment and decree passed in the interpleader suit is held to be a decision with regard to the title claimed by the parties over the property in question, the suit itself would be without jurisdiction. Even if the trial court has held that it has jurisdiction to decide such an interpleader suit, the said finding would not be said to be res judicata inasmuch as wrong decision on the jurisdictional issue would not attract the principles of res judicata. The legal position in that regard has been settled by the Hon'ble Supreme Court in the case of Ashok Leyland v. State of Tamil Nadu, , wherein the Apex Court has held as under:
"The principle of res judicata is a procedural provision. A jurisdictional question, if wrongly decided, would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is nullity, it cannot be supported by invoking the procedural principles like estoppel, waiver or res judicata."
33. Reference may also be had to the case of Sonepat Cooperative Sugar Mills Ltd, v. Ajit Singh, , wherein the Hon'ble Supreme Court has held as follows :
"The principle of res judicata belongs to the domain of procedure. When the decision relates to the jurisdiction of a Court to try an earlier proceeding, the principle of res judicata would not come into play."
34. The principle of res judicata being applicable to erroneous decision on jurisdiction is legally not justified. A Court which has no jurisdiction in law cannot be conferred with jurisdiction by applying principle of res judicata. Reference Isabella Johnson v. M. A, Susai, .
35. Thus, the contention raised on behalf of the petitioner with reference to part of the finding of the second appellate court and affirmation of the judgment as a whole by the Hon'ble Supreme Court of India referred to above cannot be pleaded to operate as res judicata so far as the title over the property between the petitioner and the respondent Cantonment Board is concerned.
36. There is another reason for coming to the aforesaid conclusion. From the order passed by the second appellate court which has been reproduced hereinabove whereby it has been held that the Union of India should have taken proceedings for ejectment of the appellant and it is only on being successful in the ejectment suit could they have made a demand for rent. It is thus clear that the right of Union of India to seek eviction of the petitioner from the premises in question in accordance with law was still maintained. The judgment and order of this Court passed in Civil Misc. Writ Petition No. 175 of 1969 has more or less been confirmed by the second appellate court. If the right of the Union of India to seek eviction of the petitioner from the premises in question in accordance with law has been maintained by the second appellate court, by no stretch of imagination can it be said that the second appellate court has finally determined the title of the petitioner over the property in question inasmuch as if that would have been the case, there could not have been an observation that before claiming rent the Union of India should seek ejectment of the petitioner in accordance with law. Thus, there is no final determination of the title of the petitioner over the property in question in the interpleader suit so as to operate as res judicata in the subsequent proceedings.
37. So far as the legal contention raised on behalf of the petitioner to the effect that the finding recorded by the second appellate court even if erroneous would operate as res judicata is concerned there is no dispute to the legal proposition so stated. However, it is not necessary to deal with the aforesaid contention any further inasmuch as this Court has come to a conclusion that the matter with regard to the title over the property in the interpleader suit was only ancillary or collatory in issue and any finding recorded in respect of title for the purpose of deciding the main issue of right to collect the rent cannot operate as res judicata. Moreover the title of the petitioner over the property has not been determined finally under the order of the second appellate court sc as to constitute the plea of res judicata in the present proceedings.
38. In view of the aforesaid findings the prayer for mutation of the name of the petitioners in the records of the Cantonment Board and acceptance of property tax as owner cannot be granted by this Court. The petitioner may get his title over the property in question declared in regular proceedings by way of civil suit.
39. The application of the petitioner for sanction of the map has been rejected on the ground that the petitioner is not the owner of the property in question. Since this Court has come to the conclusion that the petitioner has yet to obtain a declaration in respect of his title over the property in question, the order passed by the authorities concerned cannot be said to be illegal in any manner so as to warrant interference under Article 226 of the Constitution of India. However, the petitioner is granted liberty to apply afresh for sanction of the map as and when he is declared title holder of the property in question by the competent court of law in the light of the judgment of this Court in Civil Misc. Writ Petition No. 13353 of 1992.
40. Accordingly the petitioner is relegated to the remedy of civil suit for getting his title declared over the property in question.
41. Both the writ petitions stand