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CASE NO.: Appeal (civil) 5390  of  1985

PETITIONER: SAJJADANASHIN SAYED MD.B.E.EDR.(D)BY LRS

       Vs.

RESPONDENT: MUSA DADABHAI UMMER & OTHERS .

DATE OF JUDGMENT:       23/02/2000

BENCH: R.C.Lahoti, M.J.Rao

JUDGMENT:

M.JAGANNADHA RAO,J.

L.....I.........T.......T.......T.......T.......T.......T..J

     This appeal arises out of orders passed rejecting

     the  preliminary  objection raised by  the  appellant. The

     preliminary objection was that the present proceedings

     initiated   by  the  deceased   first  respondent   on 21.8.1967

     before  the  Assistant   Charity  Commissioner,  Surat Region

     under section 19 of the Bombay Public Trusts Act, 1950

     to declare three Rozas (situated at three places

     Ahmedabad, Broach and Surat) were public trusts, were

     barred by res judicata in view of three decisions

     arrived at earlier - one in 1931, another dated

     19.1.1967 and a third one initiated in 1965.

     In the present proceedings, which relate to the

     Rozas at all the three places, the Assistant

     Commissioner in his orders in Inquiry No.142/67 dated

     26.7.68 accepted the preliminary objection of res

     judicata  but the Joint Charity Commissioner,  Gujarat

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in

     his order in Appeal No.85/68 dated 17.12.73 did not

     accept the plea (before him, the plea was confined to

     the  Rozas  at  Broach and Surat).  He set  aside  the order

     and  remanded the matter for inquiry.  The said  order of

     the Joint Commissioner was affirmed on 30.9.76 by the

     learned  Assistant  Judge in Misc.  Civil  Application No.32

     of 1974 and by the Division Bench of the Gujarat High

     Court  in First Appeal No.985 of 1976 on 27.7.85.   As the

     preliminary objection was negatived, a direction was

     given to the Assistant Commissioner to dispose of the

     Inquiry No.142 of 1967 on merits.  Aggrieved by the

     above-said orders, the appellant(who was respondent in

     the main Inquiry No.142/67) has filed this appeal and

     has  raised  the same plea of res judicata  before  us once

     again.   In  the  present  appeal,  the  plea  of  res judicata

     is confined to the Rozas at Broach and Surat.

     As the contention of res judicata raised by the

     appellant concerns three earlier proceedings, we shall

     have to refer to them.  But we may also point out that in

     certain   other  proceedings  relied   upon   by   the respondents

     a view has already been taken that principle of res

     judicata does not apply.  These other proceedings were

     those  started in 1954 under section 19 of the  Bombay Act

     (Appl.  289/54) by one Ali Miya Mahmadiya & others, in

     connection  with the Ahmedabad Roza.  There a  similar plea

     of res judicata was raised by the appellant Sayed

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     Mohumed  Baquir  El-Edroos  and   the  said  plea  was rejected

     by  the  Deputy  Commissioner  on  23.4.56  and   that decision

     was confirmed by the Charity Commissioner in Appeal

     125/56 on 29.5.57,-reversed by the District Judge in

     149/57  on  29.12.1959 - but the plea of res  judicata was

     once again rejected by a learned Single Judge of the

     Gujarat High Court on 24.4.67 in the case reported in

     Ali Miya vs.  Sayed Mohammed [1968 (9) Guj.L.R.  1002] and

     that decision of the learned Single Judge was affirmed

     on 14.9.70 by a Division Bench in Sayed Mohammed vs.

     Ali Miya [1972 (13) Guj.L.R.285].  In fact, in the

     present proceedings, the Joint Commissioner, the

     Assistant  Judge  and the High Court have all  applied the

     ratio  of  those two decisions relating  to  Ahmedabad Roza

     - on the question of res judicata - in relation to the

     Broach  and Surat Rozas as well.  It was held that  on the

     same ratio, that the earlier orders relied upon by the

     appellant declaring the Broach and Surat Rozas to be

     private trusts and not public trusts, were not res

     judicata.

     We may also point out that special Leave petitions

     Nos.2574,  2575/71 against the Division Bench Judgment of

     the High Court dated 14.9.70 were got dismissed by the

     appellant as withdrawn on 16.11.1971.  No doubt, this

     Court observed that the plea of res judicata would be

     available to the appellant in the regular inquiry in

     that  case.   Later on, the District Judge  renumbered the

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     Petition 149/57 as CMA 352/67 and on merits held that

     the  Ahmedabad  Roza  was a public trust,  RFA  488/72 filed

     by the appellant was dismissed by the High Court on

     4.5.73 and SLP (CA No.1974/75) was dismissed for non-

     prosecution by this Court.  Thus the rejection of the

     plea  of res judicata and the finding on merits so far as

     the Ahmedabad Roza was concerned, became final.  That

     was  why  in the present proceedings at the  stage  of Joint

     Charity Commissioner, the plea of res judicata was

     confined to the Rozas at Broach and Surat.

     The earlier history of these wakfs is set out in

     the reported judgments of the Gujarat High Court

     referred to above.  These judgments refer to two other

     judgments of the Bombay High Court.

     Edroos family in Gujarat claimed to be descendants

     of Hazarat Imam Ali, the son-in-law and cousin of

     Prophet Muhamed.  One of the descendants of the said

     Hazrat  came  down to India in 1542 A.D.  and  founded his

     Gadi  at Ahmedabad, Broach and Surat.  The members  of the

     Edroos family were Sajjadanashins or Mutavallis of the

     wakf  throughout.  The three Rozas at the three places as

     well as the villages which were granted - not only for

     the  maintenance  of  these  Rozas but  also  for  the benefit

     of the Waquif’s family, - constituted the wakf.  The

     holder was buried in the house and his Dargah is

     situated in this place.  There is also a place for

     reciting  prayers.   In Sayed Abdul Edroos vs.   Sayad Zain

     Sayad  Hasan  Edroos  [ILR 13 Bom.  555],  a  Division

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Bench

     of  the  Bombay High Court, traced the history of  the wakf

     and  held  that  the custom of primogeniture  did  not apply

     to the office of Sajjadanishin or Mutavalli of this

     wakf.  In the next litigation, in Saiyad Jaffar El

     Edroos  vs.   Jayad  Mahomed El Edroos  [ILR  39  Bom. 277],

     which is more important, another Division Bench held,

     after construing the royal grants relating to the

     villages Umrao and Orma that the grants were primarily

     for the Rozas and Dargas and they clearly constituted

     "wakf" but that the Sajjadanashin or Mutavalli had,

     however, a right to the surplus income left over after

     discharge of the legal obligations regarding the wakf.

     In exercise of that power over the surplus income, the

     Sajjadanishin,  it  was  held, could provide  for  the needs

     of the indigent members of the family and this was a

     pious obligation which was only a moral obligation and

     not  a legal obligation and hence the indigent members of

     the Edroos family could not, as of right, claim

     maintenance out of the surplus income.

     We shall now come to the 1928 suit filed under

     Section 92 of the Code of Civil Procedure which is the

     first of the cases giving rise to the plea of res

     judicata.   This  was  a Regular Suit No.201  of  1928 filed

     under  section  92 CPC by three plaintiffs  impleading the

     father   of   Sayed   Mohamed  Baquir-El-Edroos,   the appellant

     in  this appeal, as defendant.  (The appellant  before us

     was also the appellant before the Division Bench which

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     decided Sayed Mohamed vs.  Ali Miya 1972 (13) Guj.

     L.R.285 in relation to the Ahmedabad Roza).  The

     plaintiffs contended that the appellant’s father was

     not  legally  appointed  to the shrines at  the  three places

     and that he was mismanaging the properties and prayed

     that an injunction should be granted.  They also asked

     for the framing of a scheme and for appointing a board

     of trustees.  The Collector granted permission on

     22.2.28 for filing the suit under section 92 CPC.  The

     first   Sub  Judge,  Surat   dismissed  the  suit   on 6.10.1931.

     Appeal No.80/31 filed by the plaintiffs was also

     dismissed and cross-objections were allowed on

     21.11.1938.  The Second appeal to the High Court was

     withdrawn.  In the judgment of the District Court, we

     find  that there were 8 points.  Points 1 to 7 related to

     the validity of appointment of the defendant and the

     nature of the office and the right to the surplus etc.

     On  those points, it was held that the appointment  of the

     defendant  as  Sajjadanishin  was valid and  that  the grant

     of the property was both for the Rozas and for the

     maintenance,  presumably  of   Sajjadanishin  and  his family

     members.  It was held that the Sajjadanishin had

     complete power of disposal over the surplus as he was

     not in the position of an ordinary trustee.  While the

     upkeep of the Dargas, the holding of fairs and proper

     attention to the visitors to the Rozas was a primary

     legal obligation and a charge on the income of then

     villages, the Sajjadanishin, it was held, had full

     power   over   the  surplus.   On  this   basis,   the plaintiff’s

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     plea  that  the  Sajjadanishin  was  misutilising  the income

     was rejected by the District Judge and the judgment of

     the  trial  Judge  dated 6.10.31 dismissing  the  suit filed

     under Section 92 of the Code of Civil Procedure was

     affirmed.  This judgment of the learned District Judge is

     dated 21.11.38.

     The District Court in its judgment of 1931 had

     also framed Issue 9.  The issue was as to whether the

     wakf  was  a  private wakf or a public  wakf  and  the learned

     Judge found that the wakf was a private wakf.  He

     observed  in  para 15 of his judgment that  from  1746 A.D.

     onwards, the "Sajjadanishins were using the revenue of

     these  villages for their own maintenance and that  of the

     members  of  their families and other dependants"  and this

     was  permissible according to the earlier judgment  of the

     Bombay High Court in Saiyad Jaffar El Edroos Case (39

     Bom.L.R.277).  Always the Sajjadanishin was from the

     family and never a stranger or outsider.  These facts,

     the  learned  District Judge held were  sufficient  to lead

     to  the conclusion that the wakf was a ‘private’  one. He

     observed that the documents in the case were also

     inconsistent with the wakf being a public one.  It is

     this finding that is pleaded by the appellant as res

     judicata in the present proceedings.

     We have already stated that in relation to the

     Roza at Ahmedabad, an identical plea raised by the

     appellant was rejected by the learned Single Judge of

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     the Bombay High Court in Ali Miya vs.  Sayed Mohamed

     [(1968)  9.   Guj.L.R.1002]  and  on  appeal  by   the Division

     Bench  in  Sayed  Mohamed  vs.  Ali  Miya  [(1972)  13 Guj.L.R.

     285].   It  is  true   that  the  above-said  reported judgments

     of  the  High Court related to the Ahmedabad Roza  and were

     rendered at the preliminary stage on a plea of res

     judicata  but  we find that the learned Judges in  the said

     judgments  have  gone into the matter in detail as  to why

     the decision rendered by the District Judge on

     21.11.1938 would not be res judicata in the 1954

     proceedings initiated under section 19 of the

     Maharashtra Public Trusts Act, 1950.  Our task in this

     behalf has therefore been lightened and we will be

     adverting  to the reasons given by the Division  Bench of

     the  High Court in Sayed Mahomed vs.  ali Miya [(1972) 13

     Guj.L.R.  285] on the question of res judicata under

     Point 2.  Under point 3, we shall refer to two other

     proceedings of 1967 and 1965 as these two decisions of

     the authorities also relied upon the 1931 judgment.

     The points that arise for consideration are:

     (i) What is meant in Section 11, CPC by an issue being

     collaterally or incidentally in issue as distinct from

     being directly and substantially in issue?

     (ii) Whether the decision of the District Judge, Surat

     in Appeal No.80/31 operates as res judicata in the

     present proceedings?

     (iii) Whether the decision of the Assistant Charity

     Commissioner dated 19.1.1967 in Inquiry No.14/64 filed

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     by  Peer Mohammed Fruitwala and Inquiry No.3/65  filed by

     Sayed Hasan Sayed Mohammed El-Edroos holding the

     properties in respect of Dargahs at Ahmedabad, Broach

     and  Surat not to be public trust are res judicata  in the

     present proceedings?

     Point No.1:

     The words ‘collaterally or incidentally in issue’

     have come up for interpretation in several common law

     jurisdictions in the context of the principle of res

     judicata.  While the principle has been accepted that

     matters collaterally or incidentally in issue are not

     ordinarily res judicata, it has however been accepted

     that there are exceptions to this rule.  The English,

     American,  Australian  and Indian Courts  and  Jurists have

     therefore proceeded to lay down certain tests to find

     out if even an earlier finding on such an issue can be

     res  judicata in a later proceeding.  There appears to be

     a common thread in the tests laid down in all these

     countries.* We shall therefore refer to these

     developments.

     _______________________________________________________ *See  Holdsworth  History  of English Law  147-54  (  1944); Millar  -  The Historical Relation of Estoppel by Record  35 Ill.L.Rev.41  ( 1940);  Millar - res Judicata in Continental and Anglo American Law - 39 Mich.  L.R.1(1940);  Comparative Study  ( 1940) Wisc L.R.  234;  Development in Res  Judicata 1952.  65 Harv.  LR 818;

     Matters collaterally or incidentally in issue:

     It will be noticed that the words used in Section

     11  CPC are "directly and substantially in issue".  If the

     matter was in issue directly and substantially in a

     prior litigation and decided against a party then the

     decision would be res judicata in a subsequent

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     proceeding.  Judicial decisions have however held that

     if a matter was only ’collaterally or incidentally’ in

     issue  and  decided  in  an  earlier  proceeding,  the finding

     therein  would  not  ordinarily be res judicata  in  a latter

     proceeding where the matter is directly and

     substantially in issue.

     As pointed out in Halsbury’s Laws of England (Vol.

     16,  para 1538) (4th Ed), the fundamental rule is that a

     judgment is not conclusive if any matter came

     collaterally in question (R Vs.  Knaptoft Inhabitants

     (1824)  B  &  C  883;  Heptulla Bros  Vs.   Thakore  ( 1956(1)

     WLR.    289   (297)(PC);   or  if   any   matter   was incidentally

     cognizable   (  Sanders  (  otherwise  Saunders)   Vs. Sanders (

     otherwise Saunders) 1952 (2) All ERR p.  767 at 771).

     A collateral or incidental issue is one that is

     ancillary  to  a  direct and substantive  issue;   the former

     is an auxiliary issue and the latter the principal

     issue.   The expression ’collaterally or incidentally’ in

     issue implies that there is another matter which is

     ’directly  and  substantially’ in issue (  Mulla,  CPC 15th

     Ed., p.104).

     Difficulty  in  distinguishing  whether a  matter  was directly  in issue or collaterally or incidentally in  issue and tests laid down in various Courts:

     Difficulty in this area of law has been felt in

     various  jurisdictions  and therefore some tests  have been

     evolved.   Halsbury  says ( Vol.16, para 1538)  (  4th

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Ed.)

     that while the general principle is clear, "difficulty

     arises  in the application of the rule in  determining in

     each case what was the point decided and what was the

     matter incidentally cognizable, and the opinion of

     Judges seems to have undergone some fluctuations".

     Spencer Bower and Turner on ’The Doctrine of Res

     Judicata’ ( 2nd Ed, 1969) (p.181) refer to the English

     and Australian experience and quote Dixon, J.  of the

     Australian High Court in Blair Vs.  Curran ( 1939)62.

     CLR.   464  (  553) to say:  "The  difficulty  in  the actual

     application of these conceptions is to distinguish the

     matters  fundamental or cardinal to the prior decision on

     judgment, or necessarily involved in it as its legal

     justification or foundation, from matters which, even

     though actually raised and decided as being in the

     circumstances of the case the determining

     considerations, yet are not in point of law the

     essential foundation of a groundwork of the judgment".

     The authors say that in order to understand this

     essential distinction, one has always to inquire with

     unrelenting  severity_  -  is the  determination  upon which

     it is sought to find an estoppel so fundamental to the

     substantive decision that the latter cannot stand

     without  the former.  Nothing less than this will  do. It

     is  suggested by Dixon J that even where this  inquiry is

     answered  satisfactorily, there is still another  test to

     pass:    viz.   whether  the   determination  is   the ’immediate

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     foundation’ of the decision as opposed to merely "a

     proposition  collateral or subsidiary only, i.e.   not more

     than part of the reasoning supporting the conclusion".

     It  is  well settled, say the above authors,  "that  a mere

     step  in reasoning is insufficient.  What is  required is

     no  less  than  the determination of law, or  fact  or both,

     fundamental to the substantive decision".

     American jurists and Courts have also found

     difficulty but they have tried to lay down some tests.

     It is conceded in Corpus Juris Secundum ( Vol.50, para

     725) that "it is sometimes difficult to determine when

     particular  issue determined is of sufficient  dignity to

     be covered by the rule of estoppel.  It is said that

     estoppel  by  judgment does not extend to  any  matter which

     was only incidentally cognizable or which came

     collaterally  in question, although it may have arisen in

     the  case  and  have been judicially  passed  on  (Per Taft,J.

     in  North Carolina R Co.Vs.  Story) (45 S.Ct.531 = 268 US

     288).   But  this  rule  does not  however  prevent  a judgment

     from constituting an estoppel with reference to

     incidental matters necessarily adjudicated in

     determining the ultimate vital point.  American

     Jurisprudence ( Vol.  46 Judgments para 422) too says:

     "Under this rule, if the record of the former trial

     shows that the judgment could not have been rendered

     without deciding the particular matter, it will be

     considered as having settled that matter as to all

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     future actions between the parties".  ( Per Harlan, J. in

     Hoag vs.  New Jersey) ( 356, US 464 = 78.  S.Ct.829),

     quoting Restatement, Judgments (para 68(1)) and

     ‘Developments  in  the Law - Res Judicata’  (1952)  65 Harv.

     L.Review 818(820).(See also collateral estoppel by

     judgment - by Prof.  Scott.  (1942) Harvha R 1.)

     In India, Mulla has referred to similar tests

     (Mulla, 15th Ed.p.104).  The learned author says:  A

     matter in respect of which relief is claimed in an

     earlier suit can be said to be generally a matter

     ’directly and substantially’ in issue but it does not

     mean that if the matter is one in respect of which no

     relief  is sought it is not directly or  substantially in

     issue.   It may or may not be.  It is possible that it was

     ’directly  and substantially’ in issue and it may also be

     possible that it was only collaterally or incidentally

     in issue, depending upon the facts of the case.  The

     question  arises  as to what is the test for  deciding into

     which category a case falls?  One test is that if the

     issue  was ’necessary’ to be decided for  adjudicating on

     the  principal issue and was decided, it would have to be

     treated  as ’directly and substantially’ in issue  and if

     it is clear that the judgment was in fact based upon

     that  decision,  then  it would be res judicata  in  a latter

     case.   (Mulla, p.104) One has to examine the  plaint, the

     written statement, the issues and the judgment to find

     out if the matter was directly and substantially in

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     issue  ( Ishwar Singh Vs.  Sarwan Singh:  AIR 1965  SC 948

     Mohd.S.Labbai  Vs.  Mohd.  Hanifa:  AIR 1965 SC 1569). We

     are of the view that the above summary in Mulla is a

     correct statement of the law.

     We have here to advert to another principle of

     caution  referred to by Mulla (p.105).  "It is not  to be

     assumed that matters in respect of which issues have

     been framed are all of them directly and substantially

     in issue.  Nor is there any special significance to be

     attached to the fact that a particular issue is the

     first in the list of issues.  Which of the matters are

     directly in issue and which collaterally or

     incidentally, must be determined on the facts of each

     case.  A material test to be applied is whether the

     Court considers the adjudication of the issue material

     and essential for its decision".

     The Privy Council and the Supreme Court had

     occasion 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 Vs.  Lucho Koer ( 1885) ILR

     11 Cal 301 (PC) ( 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

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     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 life

     time, 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 life time.  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.

     The next decision, again of the Privy Council is

     the  one  in Asrar Ahmed Vs.  Durgah Committee,  Ajmer (AIR

     1947 PC 1) relating to the famous Dargah of Moinuddin

     Chisti, 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 Ali, the Mutavalli on ground of

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     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 Mutavalli, the

     Court however held that if the Mutavalli behaved

     properly, he could be reinstated as the office was

     hereditary.   In  1918, the Dargah Committee  filed  a suit

     against   Nisar  Ahmed,  brother   of   the   deceased Mutawalli,

     whom the Commissioner proposed to recognise 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 abated.

     Nisar  Ahmed 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 plaintiff’s 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.

     The Supreme Court decided a similar case in

     Pragdasji Vs.  Ishwarlal Bhai ( AIR 1952 SC 143).There

     the  question  of res judicata arose at two stages  of the

     same proceeding.  The plaintiffs filed a suit under

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     Section 92 CPC 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

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     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 24.1.38.

     The Supreme Court vacated the ’declaration’ made as to

     the public character of the charity and its properties

     on the ground that the said question was beyond the

     scope  of  Section 92 CPC in the earlier  suit.   This Court

     also held that in a suit under Section 92 CPC the only

     reliefs that could be claimed were those specified in

     Section 92 CPC and "a relief praying for a declaration

     that the properties in the suit are trust properties,

     does not come under any of these clauses".  This Court

     observed:

     "When the defendant denies the existence of the trust, a  declaration  that the trust does exist might be  made  as auxiliary  to  the  main reliefs 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 CPC.  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

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     was  allowed and the declaration as to the trust being a

     public trust was set aside.

     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.

     Before parting with this point, we would like to

     refer to two more rulings.  In Sulochana Amma Vs.

     Narayanan  Nair  ( 1994 (2) SCC 14), this  Court  held that

     a finding as to title given in an earlier injunction

     suit would be res judicata in a subsequent suit on

     title.  On the other hand, the Madras High Court, in

     Uthiva  Somasundareswarar Vs.  Rajanga ( AIR 1965  Mad 355)

     held ( see para 8 therein) that the previous suit was

     only  for  injunction relating to the crops.  May  be, the

     question  of  title was decided, though not raised  in the

     plaint.   In the latter suit on title, the finding  in the

     earlier suit on title would not be res judicata as the

     earlier  suit  was  concerned only with  a  possessory right.

     These two decisions, in our opinion, cannot be treated

     as  being  contrary  to  each   other  but  should  be understood

     in  the context of the tests referred to above.   Each of

     them can perhaps be treated as correct if they are

     understood in the light of the tests stated above.  In

     the first case decided by this Court, it is to be

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     assumed   that  the  tests   above  referred  to  were satisfied

     for holding that the finding as to possession was

     substantially rested on title upon which a finding was

     felt necessary and in the latter case decided by the

     Madras High Court, it must be assumed that the tests

     were  not  satisfied.   As  stated in  Mulla,  it  all depends

     on  the facts of each case and whether the finding  as to

     title was treated as necessary for grant of an

     injunction in the earlier suit and was also the

     substantive basis for grant of injunction.  In this

     context,  we  may  refer  to  Corpus  Juris  Secundum( Vol.50,

     para  735, page 229) where a similar aspect in  regard to

     findings  on  possession  and incidental  findings  on title

     were dealt with.  It is stated:

     "Where  title to property is the basis of the right of possession,  a decision on the question of possession is res judicata  on  the  question  of title  to  the  extent  that adjudication  of  title was essential to the judgment;   but where  the question of the right to possession was the  only issue  actually or necessarily involved, the judgment is not conclusive on the question of ownership or title".

     We have gone into the above aspects in some detail

     so that when a question arises before the Courts as to

     whether an issue was earlier decided only incidentally

     or  collaterally,  the  Courts  could  deal  with  the question

     as a matter of legal principle rather than on vague

     grounds.  Point 1 is decided accordingly.

     Point 2:

     This point concerns the difference in the meaning

     of wakf in 1928 when the suit under Section 92 of the

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     Code  of  Civil  Procedure  was filed  and  the  wider meaning

     given  in  1950  in the definition of wakf  under  the Bombay

     Act  of  1950.   While the law of public Wakfs  as  it stood

     in  1928 did not take within its meaning a wakf  where the

     Sajjadanashin could spend the income for the

     maintenance of himself and his family members after

     expending  for  the  purposes of wakf,  the  1950  Act widened

     the definition of public Wakf even to situations where

     under the grant the Sajjadanashin could expend the

     income for the maintenance of himself and his family

     members.   This aspect was considered in great  detail by

     the Division Bench of the Gujarat High Court in Sayed

     Mohammed Vs.  Ali Miya ( 1972(13) Guj.LR 285).  It was

     pointed  out in that case that the definition of  Wakf in

     Section 2(19) of the Bombay Public Trusts Act, 1950

     covered a permanent dedication by a person professing

     Islam not only for the purposes which Islamic Law

     considered as ’religious’ and ’charitable’ but also

     which it considered as ’pious’ such as where provision

     was  made  for  the  benefit of  the  members  of  the settlor’s

     family or of the Sajjadanashin and his family members,

     who were poor.  Section 2(19) covered even a wakf such as

     the one described in Section 3 of the Mussalman Wakf

     Validating Act, 1913 under which any benefit was

     claimable by the founder, his family, children and

     descendants, - provided that the ultimate benefit in

     such cases expressly or impliedly was reserved for the

     poor or for any other purpose recognised by the Muslim

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     Law as religious, pious or charitable purpose of a

     permanent character.  Section 9 of the Bombay Act

     included charitable purposes also.  The Gujarat High

     Court pointed out as follows:  (p.296)

     "It  could never be argued after these provisions that the wakf is not a public trust on the ground that the entire surplus  goes  to the Sajjadanashin or Mutawalli or  because the  obligation  was  a  pious obligation and  not  a  legal obligation so that he could dispose of surplus in any manner he liked.  This aspect cannot in any manner alter the public character of the public trust".

     We agree with the above observations of the

     Gujarat  High Court.  The 1931 judgment arising out of the

     1928 suit treated the Wakf as ’private’ on the ground

     that apart from other obligations and charitable

     purposes, the Sajjadanashin could spend the income for

     the pious purposes also, namely for maintenance of

     members of his family.  But now the definition in

     Section  2(19)  brings  in such a wakf also  into  its fold.

     Thus, for this reason also, the 1931 judgment does not

     operate  as res judicata.  Point 2 is decided  against the

     appellant.

     Point 3:

     The decision of the Assistant Charity Commissioner

     on 19.1.1967 in Inquiry 14/64 filed by Peer Mohammed

     Fruitwala was no doubt in a case arising under the

     Bombay  Act 1950.  It is true that this very wakf  was held

     to  be  private  but the point is that  that  decision dated

     19.1.67 gets superseded by the latter judgment of the

     Gujarat High Court in Sayed Mohammed Vs.  Ali Miya (

     1972(13) Guj.LR 285) dated 14.9.1970.  The latter

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     judgment governs.  It is well settled that an earlier

     decision  which  is binding between the parties  loses its

     binding force if between the parties a second decision

     decides   to  the  contrary.    Then,  in  the   third litigation,

     the  decision  in the second one will prevail and  not the

     decision in the first.  We may also state that the

     19.1.67 decision merely relied upon the 1931 decision

     without noticing the change in the definition.  Hence,

     the 19.1.67 decision cannot become res judicata.

     So far as the proceeding initiated in 1965, no

     plea  of  res judicata based on it was raised  in  the lower

     courts in the present proceedings.

     Therefore, we hold on point 3 against the

     appellant.  The rejection of the preliminary objection is

     confirmed.  It will now be for the Assistant Charity

     Commissioner  to  go  into the merits in  Inquiry  No. 142/67

     as directed by the Joint Commissioner in his orders

     dated  17.12.73  insofar  as the Rozas at  Broach  and Surat

     are concerned, in the light of this judgment and the

     judgment  of  the Gujrat High Court in Sayed  Mohammed vs.

     Ali Miya [1972 (13) Guj.L.R.285].

     The appeal is dismissed.  There will be no order as

     to costs.