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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 & B.N. SRIKRISHNA

JUDGMENT: J U D G M E N T

Shivaraj V. Patil J.

In this appeal, the order dated 21.10.1998 made by  the Division Bench of the High Court in Writ Appeal No. 429  of 1998 is under challenge.  Parties are before this Court for  the third time in relation to the same subject matter.   One Fauzdar Khan donated 5 bighas of land situated  at Hyderabad to one Gunnaji, the ancestor of the  respondent no. 1 for the purpose of construction of a  temple, now known as Sri Jangli Vittobha Temple.  Gunnaji  died and after his death, his sister Suguna Bai completed  the construction of the temple.  In 1939, one Golakishan  Gir claiming himself to be the Mutawalli of the temple,  mismanaged its affairs.  The Government having come to  know about the same, constituted a committee under Rule  156 of Andhra Pradesh (Telangana Areas) Wakf Rules.   Manik Rao, father of the respondent no. 1, applied to the  Registration Officer in 1962 for transfer of Towliatship of  temple in his name.  The Registration Officer (the Assistant  Secretary of Board of Revenue) after holding inquiry by the  order dated 15.1.1964 held that said Manik Rao was the  rightful claimant to the Towliatship and consequently  ordered for amendment of Column No. 11 of Munthakab  under Section 36(c) of Hyderabad Endowment Rules.   Aggrieved by this order, the temple committee filed an  appeal to the Director of Endowments, who, by his order  dated 29.10.1966, confirmed the aforementioned order  dated 15.1.1964.  The temple committee pursued the  matter further by filing a revision petition before the  Government assailing the order dated 29.10.1966 made by  the Director of Endowments.  The revision petition was  allowed and the order of the Director of Endowments  affirming the order of the Registration Officer was set aside  as is evident by G.O. Rt. No. 680 dated 17.06.1971.  It is  against this G.O. that Manik Rao filed a suit O.S. No.  509/1971 in the City Civil Court, Hyderabad, for declaration  that he was the hereditary Mutawalli  of the temple; for  perpetual injunction against the authorities and individuals,  restraining them from interfering with his Towliatship and  from constituting or reconstituting any committee for the  temple and for setting aside the said G.O. dated 17.6.1971.   The trial court dismissed the suit.  The appeal No. A.S. No.  199/77 filed against the judgment and decree of the trial  court was allowed by the first appellate court by its  judgment and decree dated 22.12.1978, which decreed the

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suit of Manik Rao granting the relief as sought for in the  said suit.  The temple committee preferred second appeal  being S.A. No. 122/79 in the High Court against the  judgment dated 22.12.1978 aforementioned made by the  first appellate court.  It may be stated here itself that  neither the Government nor the Commissioner of  Endowments (defendants 1 and 2 respectively) filed second  appeal challenging the judgment and decree passed by the  first appellate court in favour of Manik Rao.  Although they  were respondents 2 and 3 in the second appeal No. 122/79  filed by the temple committee, they did not participate.  In  other words, they did not put forth any plea before the High  Court.  The High Court dismissed the said second appeal on  2.7.1979 concurring with the findings recorded by the first  appellate court and affirming the decree passed by it.  The  High Court held that the land in question was gifted  absolutely to Gunnaji and that the Government could not  claim any interest in it.  The State of Andhra Pradesh and  the Temple Committee acting through its Chairman,  approached this Court by filing SLPs questioning the validity  and correctness of judgment and decree passed by the High  Court in the second appeal.  This Court dismissed C.A. Nos.  702/80 & 703/80 on 12.8.1987 after granting leave in the  SLPs.  Thus, the judgment and decree passed in favour of  Manik Rao by the first appellate court in A.S. No. 199/77  attained finality.

About two years later, the Commissioner of  Endowments, Govt. of Andhra Pradesh (appellant No. 1), by  his letter dated 14.6.89 addressed to the Principal  Secretary, Deptt. Of Revenue, Andhra Pradesh gave a  detailed report seeking permission to compromise the  dispute in the best interest of the temple.  In response to  the said letter, Joint Secretary to the Government by  Memorandum dated 27.10.89 stated that a compromise  might be made on certain terms.   The Assistant commissioner of Endowments issued  instructions dated 16.1.1990 to the tenants of the temple  property to pay the rents due, to Vittal Rao, the respondent  no. 1 herein as the entire property had been declared as his  private property by virtue of the decree passed by the civil  court in A.S. No. 199/77 but the Deputy Commissioner of  Endowments by his order dated 15.6.1990 set aside the  instructions dated 16.1.1990 given by the Assistant  Commissioner of Endowments inter alia stating that the  terms of compromise mentioned in the Government  Memorandum dated 27.10.1989 issued by the Joint  Secretary had not been reduced into a deed of compromise.   Consequently, the Assistant Commissioner withdrew his  instructions dated 16.1.1990 and directed the tenants to  comply with the order of the Deputy Commissioner dated  15.6.1990.  Thereafter on 25.6.1990, the Commissioner of  Endowments appointed an Executive Officer for the  management of the temple.  The respondent no. 1 Vittal  Rao filed writ petition No. 8970/90 in the High Court to  quash the order of the Deputy Commissioner dated  15.6.1990 and that of the Commissioner dated 25.6.1990  aforementioned.  The respondents 2 to 5 got impleaded as  party-respondents in the above writ petition claiming to be  interested persons.  In the said writ petition, the  respondents 1-3, (Officers of the Endowment Department)  filed W.P.M.P. No. 15438/95 seeking direction to appoint an  Executive Officer to manage the affairs of the temple and  permit the officer to conduct the yearly festivals pending  disposal of the writ petition.  The writ petitioner

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(respondent no. 1 herein) filed a counter affidavit stating  that he was ready to accept the terms of compromise  suggested in the Govt. Memo dated 27.10.1989.  Learned  Single Judge by his order dated 17.10.1995 disposed of the  writ petition on the submission of the learned counsel for  both parties that the writ petition may be disposed of by  recording the said terms of the compromise contained in  Government Memorandum dated 27.10.1989 and the  learned Judge further directed to implement the terms of  the compromise within four weeks from the date of the  order.  The respondent Nos. 1 to 3 of the Endowments  Department (appellants Nos. 1 to 3 herein) in the writ  petition did not file any appeal against the aforementioned  order of the learned Single Judge made in the writ petition  but the private respondents 5-8, who were impleaded  subsequently in the writ petition, contending to be the  purchasers of the land, filed writ appeal No. 1536/95.  The  Division Bench of the High Court by the order dated  13.1.1997 held that the appellants in the writ appeal having  not represented themselves in the earlier proceedings when  the matter came up to the Supreme Court, the decision of  the Supreme Court had become final in the matter and that  in case they have any other right over the property, they  have to approach the civil court.  Thus, the order passed by  the learned Single Judge on 17.10.1995 passed in the writ  petition was confirmed by the High Court in the writ appeal.   

When the aforementioned writ appeal was pending,  some individuals claiming to be devotees of the temple,  filed W.P. No. 2830/96 claiming to espouse public interest  inter alia to declare the Memo of the Government dated  27.10.1989 (suggesting compromise) as illegal and  arbitrary and to direct the Endowments Department to  remove the respondent no. 1 from the post of hereditary  trusteeship of the temple.  The Division Bench of the High  Court dismissed the said writ petition on 21.2.1997.

It is thereafter that the Govt. of Andhra Pradesh,  which was not a party to the writ appeal No. 1536/95,  sought review of the order made in Writ Appeal No. 1536 of  1995 in RWAMP No. 2435/97 contending that despite  permission granted to the Commissioner to enter into  compromise by virtue of the Government Memorandum  dated 27.10.1989, no compromise was in fact entered into  and therefore, it was unenforceable and that the proposal  for compromise was wrongly interpreted in earlier  judgments and that too on a wrong translation of the gift  deed.  The Division Bench of the High Court, by its order  dated 12.11.1997 dismissed the review petition taking a  view that the earlier Supreme Court judgment in C.A. Nos.  702/80 and 703/80 attained finality so far as the  construction of gift deed made in favour of Manik Rao is  concerned and that issue could not be re-opened.  On the  same day, the High Court rendered a judgment in the  contempt case filed by Vittal Rao against the government  and impleaded parties alleging that they had violated the  earlier judgment of the Court in Writ Appeal No.  1536/1995.  The Court did not proceed with the contempt  petition stating that the Govt. had stated that they would  abide by the orders of the Court in the review petition and  in the contempt case.  A further direction was given that  the order made in Writ Appeal No. 1536/95 be implemented  within two months by taking into consideration the  observations made by the Court in review petition.  As  against the judgment in the review petition, the

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Commissioner of Endowments and others filed special leave  petition No. 22746/97.  The said SLP was disposed of by  this Court in the following terms:-

"The learned Senior Counsel for the petitioner  after some arguments seeks leave to withdraw  this Special Leave Petition with a view to filing  appropriate proceedings for challenging the  consent order in a writ petition which according  to him was a nullity as being fraudulent and  contrary to law.  The SLP stands dismissed as  withdrawn."

It is thereafter the present appellants filed Writ Appeal  No. 429/98.  There was delay of 739 days in filing the writ  appeal which was condoned.  The Division Bench of the  High Court, by the impugned judgment, dismissed the writ  appeal on considerations of the material on record and  accepting the preliminary objections raised by the  respondent no. 1.  The Division Bench also held that the  Government could not go back on its assurance given in the  contempt case.  Hence, this appeal.         Shri P.P. Rao, learned senior counsel for the  appellants in support of the appeal, urged the following  contentions: - 1.      The Division Bench of the High Court having condoned  the delay in filing the writ appeal ought to have set aside  the compromise said to have been arrived at between the  parties.  There was no concluded compromise in writing  signed by the parties or their authorized representatives,  but there was only proposal for compromise yet to be acted  upon by the Commissioner in the manner suggested by the  Government in its Memorandum dated 27.10.1989; the  proposed terms of compromise having been rejected by  respondent No. 1, they ceased to exist in the eye of law;  after filing of writ petition 8970 of 1990 containing serious  misrepresentations of facts and before the same could be  adjudicated and their falsity exposed of by the appellants  the respondent No. 1 approached the High Court with a  request that the writ petition may be disposed of recording  the said compromise as per the Government Memorandum  dated 27.10.1989 and got the order in the writ petition  taking the advantage of the absence of the Advocate  General at the hearing. 2.      The Division Bench of the High Court committed an  error in not considering the effect of Sections 14, 16, 42,  80(1)(a) and (b) and Section 87 of the Andhra Pradesh  Charitable and Hindu Religious Institutions and  Endowments Act, 1987 (for short ’the Act’); the Division  Bench ought to have examined the legality of the alleged  compromise in the light of these provisions as the illegality  was writ large in the proposed terms of compromise. 3.      Not only the Government required the Commissioner  of Endowment to see that the above mentioned terms were  reduced into a deed of compromise by the parties but Order  XXIII Rule 3 CPC also required the compromise to be in  writing and signed by the parties; no court could accept the  compromise, which was not in writing and not signed by the  parties; therefore, the order of the learned single Judge  accepting the compromise not signed by the parties was in  violation of Order XXIII Rule 3 CPC and consequently it was  void.  Rule 24 of the A.P. Writ Proceedings Rules, 1977  makes the provisions of Order XXIII Rule 3 CPC applicable  to the proceedings under Article 226 of the Constitution of  India.

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4.      Having noted the submission of the Advocate General  that he did not appear before the learned single Judge, who  disposed of the writ petition in terms of the alleged  compromise, the Division Bench out to have ascertained the  facts as to who appeared for the official respondent Nos. 1  to 4 when the writ petition was disposed of; a concession  made by the counsel on the question of law is not binding  on the parties; Section 96(3) of CPC is no bar for  challenging the consent order on the ground of illegality  and/or fraud. 5.      The learned single Judge, who disposed of the second  appeal No. 122/1979 on 2.7.1979, made the following  observations: - "As pointed out by the lower appellate  Court, Ex. A-I shows that the land was  gifted absolutely to Gunnaji.  The  Government cannot claim any interest in  the land.  The fact that Gunnaji’s sister  constructed a private temple subsequently  on a portion of the land, does not make the  gift of the land an endowment in favour of  God."

There being no pleadings, no prayer and no arguments  before the learned Judge on the above aspects, it was a  mistake on his part to have made such observations; it is  settled law that such a mistake on the part of the court  shall not prejudice anyone.  Further, the observations  quoted above were not ’findings’ as there was no issue at  all warranting the same; the above extracted observations  in any event were outside the scope of a second appeal,  consequently, they were without jurisdiction; a decree by a  court without jurisdiction is a nullity and its validity could be  set up whenever and wherever it is sought to be enforced  or relied upon, even at the stage of execution and even in  the collateral proceedings. 6.      The observations made by the learned single Judge  while dismissing the second appeal confirming the decree of  the court below declaring respondent No. one’s father as a  hereditary trustee of the temple, did not create any  additional right; the decree alone conclusively determines  the rights of the parties. 7.      It was not necessary for the appellants to challenge  the orders of the High Court made in PIL and in the  contempt petition as they were based on order of the  learned single Judge dated 17.10.1995; the principle of  consequential orders applies.         The learned counsel for respondent No. 1 on the other  hand made following submissions fully supporting the  impugned judgment: - 1.      The High Court rightly dismissed the appeal by the  impugned order on the three grounds \026 (a) in view of  Section 96(3) of CPC an appeal against a consent decree  was not maintainable, (b) the allegations of fraud and  misrepresentation were without any basis and (c) the  finding recorded in the first round of litigation operated as  resjudicata against the appellants. 2.      Neither in the review petition nor in the writ appeal  nor in the special leave petition filed in this Court in the  year 1998 nor in the present civil appeal it was stated that  the Advocate General was not present or that he did not  consent to the decree being passed as recorded by the  learned single Judge in the High Court in the writ petition; it  was for the first time before the Division Bench of the High  Court it was orally contended that the Advocate General

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was not present and his junior had appeared; at no point of  time it was averred that the Advocate General or his junior  were not authorized to appear or to compromise the matter  or that they had acted contrary to express instructions. 3.      Following were the circumstances in which the  Memorandum dated 27.10.1989 was issued: - a)      The said Memorandum was the culmination of a  proposal mooted by the Commissioner, Endowments  on 14.6.1989 and accepted by the Government of  Andhra Pradesh on 27.10.1989. b)      In the proposal dated 14.6.1989, the Commissioner of  Endowment traced the entire history of litigation and  stated that the land in question was gifted to Gunnaji  and the grant covered by the gift deed was absolute in  view of the findings recorded by the High Court and  this Hon’ble Court which were binding on the Deputy  Commissioner, who had to decide whether or not the  grant in question was an endowment. c)      It is in this view of the matter that the Commissioner,  Endowment (and not the Assistant Commissioner as  contended by the other side) mooted the proposal for  compromise, which was accepted by the Government  of Andhra Pradesh.   d)      The writ petition having been disposed on the basis of  the said proposal mooted by the Commissioner,  Endowment (the appellant No. 1 herein) and accepted  by the Government and that too on the specific  representation by the learned counsel for the  appellants that the writ petition may be disposed of on  the said terms, it cannot be contended that the High  Court committed any error in disposing of the writ  petition accordingly. 4.      The consent order passed in the writ petition is not  contrary to the provisions of the  Act \026 a)      In the first round of litigation findings were recorded  that there was no endowment at all; the gift in  question was not a gift to God; it was an absolute gift  to Gunnaji and that the temple in question was a  private temple.  This being the position, the provisions  of the Act are not attracted to the land in question in  any manner whatsoever. b)      The Commissioner, Endowments having accepted in  his proposal dated 14.6.1989 that the said findings  were binding on the Deputy Commissioner,  Endowments for the purpose of exercise of jurisdiction  under Section 87 of the Act, it cannot be said that the  compromise was in violation of the provisions of the  Act. 5.      In the earlier round of litigation a clear finding is  recorded that the temple in question was a private temple  and the said finding has attained finality.  Merely because  there is reference to a Dharamshala in the gift deed it did  not imply that there was an endowment of a public  character. 6.      Order XXIII Rule 3 CPC cannot be strictly applied to  the proceedings under Article 226 of the Constitution of  India \026 a)      The explanation to Section 141 of CPC states that the  expression ’proceedings’ does not include any  proceedings under Article 226 of the Constitution of  India.  Therefore, it cannot be said that the provisions  of Order XXIII Rule 3 CPC should be mandatorily  followed in the writ proceedings. b)      The High Court while exercising jurisdiction under  Article 226 of the Constitution of India possesses

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inherent powers to do justice between the parties; the  power of the High Court to dispose of the matter by  recording consent of the parties flows from Article 226  of the Constitution of India and not from Order XXIII  Rule 3 CPC.  Further, the manner in which such power  is to be exercised is not controlled by Order XXIII Rule  3 CPC. c)      The contention that Order XXIII Rule 3 CPC was  applicable in view of the rules framed by the Andhra  Pradesh High Court is not correct.  The provisions of  CPC are applicable to the extent possible and having  regard to the context.  If the provisions of CPC are  held to be applicable to proceedings under Article 226  of the Constitution, absurd consequences will follow.   Then it can be urged that before deciding a writ  petition issues should be framed under Order XIV,  evidence should be lead, etc. d)      In the present case admittedly the compromise  terms  were available in writing in the form of memorandum  dated 27.10.1989 and the same were accepted.  Thus  provisions of Order XXIII Rule 3 CPC stood  substantially complied with. 7.      The decisions and findings recorded in the first round  of litigation do operate as resjudicata against the  appellants. 8.      In view of the dismissal of Civil Appeal Nos. 702 and  703 of 1980 by this Court it is not open to the appellants to  question the validity of the decisions and the findings,  which stood concluded in the earlier round of litigation. We have carefully examined the rival contentions  urged on behalf of the parties in the light of the material  placed on record.   Late Manik Rao, father of respondent No. 1, filed suit  No. OS No. 509 of 1971 in the City Civil Court at Hyderabad  for declaration that the plaintiff was hereditary mutawalli  (trustee) of Pandarinath Temple, generally known as Jangli  Vithoba Temple at Osman Shahi, Hyderabad City, entitled  to get his name entered in column No. 11 of the  Endowment Register, for perpetual injunction restraining  the defendants from constituting or reconstituting any  committee for the temple and to set aside the order of the  Government dated 17.6.1971 covered by G.O. Rt. No. 680.   The Government of Andhra Pradesh was defendant No. 1  and the Commissioner, Endowments (appellant No. 1  herein) was the defendant No. 2 in the suit.  One Vasedeve  Naik, a person appointed as Chairman of the Managing  Committee constituted for the temple by the Government,  was defendant No. 3 in the said suit.  The trial court  dismissed the suit on 23.3.1977.           The First Appeal A.S. No. 199 of 1977, filed by the  plaintiff Manik Rao, was allowed on 22.12.1978 granting  decree as sought for by the plaintiff in the suit.  Temple  Committee, the third defendant in the suit, filed Second  Appeal S.A. No. 122 of 1979 in the High Court.  The  Government and the Endowment Commissioner (defendant  Nos. 1 and 2) did not file any appeal challenging the decree  passed by the first appellate court in favour of Manik Rao,  father of respondent No. 1.  In other words, they accepted  the decree.  Even otherwise the said second appeal was  also dismissed by the High Court on 2.7.1979 affirming the  decree passed by the first appellate court.  The High Court  in the said judgment made in the second appeal has  noticed, thus: - "The case of the plaintiff is that as early as  the year 1809, one Khan gifted five bigas

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of land in favour of his ancestor, Gunnaji,  and that subsequent to the death of  Gunnaji, the heirs of Gunnaji were enjoying  the property in succession until his father’s  time and that, when his father Jagannath  Rao was afflicted with a mental disease, he  applied to the Government for the  appointment of a Managing Committee as  his son (plaintiff) was then a minor unable  to manage the land and the temple and  that, after he attained majority, the  plaintiff is seeking the instant declaration.   The case of the 3rd defendant, who is the  appellant herein, is that the land was gifted  in favour of a temple that the same is thus  an endowment in favour of the temple;  that the document created a trust in favour  of Gunnaji; that the endower did not make  any provision in the document in regard to  the management of the temple or the land  subsequent to the death of Gunnaji.   According to the 3rd defendant, the heirs of  Gunnaji managed the properties for  sometime not by virtue of any legal right  but for want of persons who agreed to  manage and that, when the persons who  were managing the property were found to  be adopting malpractices, the Government  took over the management in the year  1929 and was ever since appointing  committees with chairman for such  committees.  The 3rd defendant is one such  Chairman appointed by the Government  and the plaintiff cannot therefore seek the  declaration prayer for."

The High Court also has recorded that although the State  and the Commissioner, Endowments were made parties to  the second appeal, they did not participate in the appeal.   In other words, they neither filed the second appeal, as  already stated nor contested it.  After hearing and  considering the evidence in view of the rival contentions,  the High Court has categorically recorded the findings,  thus: - "As pointed out by the lower appellate  court, Ex. A-1 shows that the land was  gifted absolutely to Gunnaji.  The  Government cannot claim any interest in  the land.  The fact that Gunnaji’s sister  constructed a private temple subsequently  on a portion of the land, does not make the  gift of the land an endowment in favour of  God.  The land evolves according to law on  the successors of the donees and the  plaintiff is admittedly a successor.  The fact  that, due to mal-administration or the  incapacity of a successor, the Government  took over the management and appointed  a committee is no ground to deny the  rights of the subsequent successor, which  flow by ordinary operation of law." The original defendant Nos. 1 and 2 in the suit, i.e.,  Government of Andhra Pradesh and the Commissioner,  endowments although did not file second appeal against the  decree passed by the first appellant court in favour of the

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father of respondent No. 1, they filed special leave petition  No. 3427 of 1980 in this Court aggrieved by the judgment  and decree passed by the High Court in the aforementioned  second appeal.  Subsequently after granting leave it was  numbered as Civil Appeal No. 702 of 1980.  The third  defendant in the suit also filed Civil Appeal No. 703 of 1980  in this Court.  Both the civil appeals were dismissed by this  Court by the following common order on12.8.1987: - "The High Court concurred with the findings  of the Lower Appellate Court on a  construction of the Deed Ex. A-1.  It is now  contended before us that the translation of  Ex.A-1 is not correct.  We find from the  judgments of the Lower Appellate Court  and the High Court and the memorandum  of grounds of appeal before the High Court  that it was not suggested anywhere that  the translation is not correct.  If the  translation as set out in the judgment of  the Lower Appellate Court is correct, the  findings of the Lower Appellate Court and  the High Court must be sustained.  The  appeals are therefore dismissed.  No  costs."

It is clear from the order of this Court, extracted above,  that this Court specifically recorded that the findings of the  lower appellate court and the High Court must be  sustained.  There is also reference to Ex. A-1, the gift deed,  which deed was interpreted by the first appellate court and  the same interpretation was accepted by the High Court  holding that it conveyed absolute gift of land in favour of  the ancestors of the respondent No. 1, the temple was a  private property and that the land was not an endowed  property.  Thus, in the first round of litigation the findings,  referring to Exh-A-1, gift deed, recorded by the first  appellate court as affirmed by the High Court in the second  appeal that under Exh A-1, gift deed, the land was gifted  absolutely to Gunnaji; the Government cannot claim any  interest in the land and the construction of a private temple  on a portion of the land did not make gift of the land an  endowment in favour of the God, had attained finality.         On 14.6.1989, almost after a period of one year and  ten months after the judgment was delivered by this Court  in aforementioned Civil Appeal Nos. 702 and 703 of 1980,  the Commissioner, Endowments sent a detailed report to  the Secretary of Revenue Department suggesting a  compromise by indicating the circumstances and the  reasons.  In the said report, detailed history of the litigation  and also as to the findings recorded by the first appellate  court, High Court and Supreme Court in relation to the land  in question in the first round of litigation, as already stated  above in detail, were stated.  This report shows that there  has been proper consideration and application of mind as to  how and why it was in the interest of the temple that a  compromise was needed.  In response to the said  report/letter Joint Secretary to the Government of Andhra  Pradesh by Memorandum No. 1295/Endts-II-1/84-21,Rev.  dated 27.10.1989 permitted the compromise on certain  terms stated therein.  On the representation made by  respondent No. 1 to the Assistant Commissioner to issue  necessary instructions, the Assistant Commissioner of  Endowment issued instructions dated 16.1.1990 to the  tenants of the temple property to pay the rents to  respondent No. 1 as the properties had been declared as

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his private property.  However, the Deputy Commissioner,  Endowments set aside those instructions on the ground that  the term of compromise mentioned in the Memorandum  dated 27.10.1989 had not been reduced into a deed of  compromise.  Thereafter, the Assistant Commissioner,  Endowments, withdrew his earlier instructions.  When the  things stood thus, the Commissioner of Endowments  appointed an Executive Officer by the order dated  25.6.1990 for the management of the temple.  Under these  circumstances the respondent no. 1 filed Writ Petition No.  8970 of 1990 for setting aside the aforementioned orders of  the Deputy Commissioner, Endowments dated 15.6.1990  and of the Commissioner, Endowments dated 25.6.1990  respectively.  This writ petition was disposed of by the  learned single Judge by order dated 17.10.1995.  Operative  portion of the said order reads: - "During the pendency of the writ petition  the respondents filed W.P.M.P. No.  15438/1995 seeking permission to appoint  an Executive Officer to manage the affairs  of the temple in question and also to  permit the said officer to conduct the yearly  festival pending disposal of the writ  petition.  The writ petitioner filed a counter  affidavit in the said WPMP stating that he is  ready to accept the terms and conditions  mentioned in the Government Memo No.  1295 dated 27.10.1989.  Now, counsel for  both parties have represented that the writ  petition may be disposed of recording the  said compromise as per Government Memo  No. 1295 dated 27.10.1989.  Accordingly  this writ petition is disposed of in terms of  the compromise both parties to implement  the terms embodied in the said  Government Memo within a period of four  weeks from today.  Writ petition disposed  of accordingly.  No costs."

Thus, it is clear that the learned single Judge disposed of  the writ petition by the consent of the parties accepting the  compromise memo dated 27.10.1989.  Against this order of  the learned single Judge the present appellants did not file  any appeal.  The private parties, who were subsequently  impleaded in the writ petition before the learned single  Judge, filed Writ Appeal No. 1536 of 1995 aggrieved by the  aforementioned order of the learned single Judge.  The  Division Bench of the High Court dismissed the said writ  appeal on 13.1.1997 observing that the appellants in the  writ appeal had not represented themselves in the earlier  proceedings when the matter came up to this Court and  that the decision of this Court in the earlier round had  become final.  Officers of the Endowment Department  including the Commissioner, Endowments sought review of  the order passed in the aforementioned Writ Appeal No.  1536 of 1995, which was dismissed on 12.11.1997 holding  that the earlier judgment of this Court in Civil Appeal Nos.  702 and 703 of 1980 had attained finality so far as the  construction of gift deed made in favour of Manik Rao,  father of respondent No. 1 and the issue could not be re- opened.  Hence the order passed by the learned single  Judge accepting the compromise on the basis of the  statement made on behalf of the parties was upheld.   Respondent No. 1 had also filed a contempt petition alleging  the violation of the judgment of the Division Bench made in

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Writ Appeal No. 1536 of 1995.  The Contempt Petition also  was disposed of on the same day, i.e., on 12.11.1997.  In  the said order it is recorded, thus: - "We have disposed of the Review W.A.M.P.  (SR) No. 84816 of 1997 today and in view  of the definite stand taken in the counter- affidavit by the Respondents that they will  abide by the orders of this Court.  We are  of the opinion that it is not a fit case to  proceed with the contempt cases.  We,  therefore, direct the implementation of the  orders of this Court in Writ Appeal No.  1536 of 1995 by taking into consideration  the observations made in the review  W.A.M.P. (SR) No. 84816 of 1997 which is  disposed of by us today.  The Respondents  will however implement the order in the  W.A. No. 1536 of 1995 within two months  from today."

Against the dismissal of the review petition the  Commissioner, Endowments and others filed Special Leave  Petition No. 22746 of 1997 before this Court.  The same  was dismissed as withdrawn on the statement made by the  learned counsel that the petitioners wanted to file  appropriate proceedings challenging the consent order  made in the writ petition by the learned single Judge.  It is  only thereafter the appellants herein filed Writ Appeal No.  429 of 1998, which was disposed of by the impugned  judgment.         It was not contended on behalf of the appellants, till it  was raised for the first time during the course of arguments  before the Division Bench in the Writ Appeal No. 429 of  1998, that the learned Advocate General did not appear  before the learned single Judge and it is not the case of the  appellants that the counsel representing the appellants  before the learned single Judge were not authorized to  make the consent statement to accept the compromise.   However, it was contended before us that a concession  made on the question of law by the learned counsel does  not bind the parties.  Learned Single Judge disposed of the  writ petition on the representation of learned counsel for  the parties recording the compromise as per the  Government Memo No. 1295 dated 27.10.1989.  The writ  petition was disposed of in terms of the compromise with a  direction to implement them within a period of four weeks.   The representation so made or consent given for disposal of  the Writ Petition before the Learned Single Judge, in our  view, is not and does not amount to giving of concession on  a point of law particularly when we are taking a view that  the provisions of the Act have no application to the property  in question.  The two decisions in Nedunuri  Kameswaramma vs.  Sampat Subba Rao [1963) 2 SCR  208] and (2) B.S. Bajwa & Anr. vs.  State of Punjab &  Ors. [(1998) 2 SCC 523] have no application to the facts of  the present case for the reasons that they were the cases  dealing with concession on the point of law given by the  counsel and those decisions were rendered on the facts of  those cases.  Further, we are of the view that in this case,  there was no concession by the learned counsel on behalf of  the appellants on a point of law.    The contention that the order passed by the learned  single Judge accepting the compromise when it was not in  writing and not signed by the parties could not be accepted  by the learned single Judge, in our view, has no force for

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the reasons more than one.                       The decisions in Gurpreet Singh vs Chatur Bhuj  Goel [(1988) 1 SCC 270] and Banwari Lal vs.  Chando  Devi (Smt.) through L.Rs. & Anr. [(1993) 1 SCC 581]  cited by the learned counsel for the appellants to contend  that the order passed by the learned Single Judge in the  writ petition based on the consent statement made on  behalf of the parties when the compromise was not reduced  to writing and was not signed by the parties could not be  accepted, do not advance the case of the appellants.  These  decisions dealt with the validity of the compromises arising  out of suits.  It is true that under Rule 24 of the Andhra  Pradesh Writ Proceedings Rule, 1977, the provisions of the  Code of Civil Procedure would apply to the writ petitions or  the writ appeals.  Section 141 of CPC provides that  procedure provided in the Code in regard to suits shall be  followed in all proceedings in any court of civil jurisdiction.   But, the explanation to Section 141 states that the  expression ‘proceedings’ does not include any proceedings  under Article 226 of the Constitution of India.  By virtue of  Rule 24 of A.P. Writ Proceedings Rules, the provisions of  Civil Procedure Code could be applied as far as possible.   The learned Single Judge disposed of the writ petition in  terms of Memorandum dated 27.10.1989 on the basis of  the submissions made by the learned counsel for the  parties.  The Memorandum was issued by the Government  at the instance of the Endowment Commissioner and the  same was accepted by the respondent no. 1 though not  initially but during the pendency of the writ petition in the  High Court.  Further, it is not the case of the appellants that  the counsel did not have authority to make a statement  before the court to accept the compromise.  In Byram  Pestonji Gariwala vs. Union Bank of India & Ors.  [(1992) 1 SCC 31], in para 39, it is held thus:- "39. To insist upon the party himself  personally signing the agreement or  compromise would often cause undue  delay, loss and inconvenience, especially in  the case of non-resident persons. It has  always been universally understood that a  party can always act by his duly authorised  representative. If a power-of-attorney  holder can enter into an agreement or  compromise on behalf of his principal, so  can counsel, possessed of the requisite  authorisation by vakalatnama, act on  behalf of his client. Not to recognise such  capacity is not only to cause much  inconvenience and loss to the parties  personally, but also to delay the progress  of proceedings in court. If the legislature  had intended to make such a fundamental  change, even at the risk of delay,  inconvenience and needless expenditure, it  would have expressly so stated."                  The High Court while exercising jurisdiction under  Article 226 of the Constitution of India has jurisdiction to  pass appropriate orders.  Such power can neither be  controlled nor affected by the provisions of Order XXIII Rule  3 CPC.  It would not be correct to say that the terms of  order XXIII Rule 3 should be mandatorily complied with  while exercising jurisdiction under Article 226 of the  Constitution of India.  Otherwise anomalous situation would  arise such as before disposing of the writ petition, issue

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should be framed or evidence should be recorded etc.   Proceedings under Article 226 of the Constitution of India  stand on a different footing when compared to the  proceedings in suits or appeals arising therefrom.         There was some dispute as to whether the learned  Advocate General himself appeared on the date when the  writ petition was disposed of by the learned Single Judge in  terms of the compromise or his junior appeared.  In the  impugned judgment, it is stated that the State Government  was duly represented by a lawyer.  In State of  Maharashtra vs.  Ramdas Shrinivas Nayak &  Anr.  [(1982) 2 SCC 463], dealing with the practice and  procedure regarding statement of fact recorded in the  judgment of a court, this Court held that such a statement  is conclusive and not open to be contradicted in appeal.   Paras 4 to 8 of the said judgment read:- ."4.    When we drew the attention of the learned  Attorney-General to the concession made before  the High court, Shri A.K. Sen, who appeared for  the State of Maharashtra before the High Court  and led the arguments for the respondents there  and who appeared for Shri Antulay before us  intervened and protested that he never made  any such concession and invited us to peruse the  written submissions made by him in the High  Court. We are afraid that we cannot launch into  an enquiry as to what transpired in the High  Court. It is simply not done. Public policy bars  us. Judicial decorum restrains us. Matters of  judicial record are unquestionable. They are not  open to doubt. Judges cannot be dragged into  the arena. "Judgments cannot be treated as  mere counters in the game of litigation (Per Lord  Atkinson in Somasundaram Chetty v.  Subramanian Chetty, AIR 1926 PC 136 : 99 IC  742)." We are bound to accept the statement of  the judges recorded in their judgment, as to  what transpired in court. We cannot allow the  statement of the judges to be contradicted by  statements at the Bar or by affidavit and other  evidence. If the judges say in their judgment  that something was done, said or admitted  before them, that has to be the last word on the  subject. The principle is well-settled that  statements of fact as to what transpired at the  hearing, recorded in the judgment of the court,  are conclusive of the facts so stated and no one  can contradict such statements by affidavit or  other evidence. If a party thinks that the  happenings in court have been wrongly recorded  in a judgment, it is incumbent upon the party,  while the matter is still fresh in the minds of the  judges, to call the attention of the very judges  who have made the record to the fact that the  statement made with regard to his conduct was  a statement that had been made in error (Per  Lord Buckmaster in Madhu Sudan Chowdhri v.  Chandrabati Chowdhrain, AIR 1917 PC 30 : 42  IC 527). That is the only way to have the record  corrected. If no such step is taken, the matter  must necessarily end there. Of course a party  may resile and an appellate court may permit  him in rare and appropriate cases to resile from  a concession on the ground that the concession  was made on a wrong appreciation of the law

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and had led to gross injustice; but, he may not  call in question the very fact of making the  concession as recorded in the judgment.  5. In R v. Mellor ((1858) 7 Cox CC 454 : 6 WR  322 : 169 ER 1084) Martin, B. was reported to  have said :  We must consider the statement of  the learned judge as absolute verity  and we ought to take his statement  precisely as a record and act on it in  the same manner as on a record of  Court which of itself implies an  absolute verity.  6. In king-Emperor v. Barendra Kumar Ghose  (28 Cal WN 170 : AIR 1924 Cal 257 : 38 Cal LJ  411 : 25 Cri LJ 817), Page, J. said :  ...these proceedings emphasis the  importance of rigidly maintaining the  rule that a statement by learned  Judge as to what took place during  the course of a trial before him is final  and decisive : It is not to be criticized  or circumvented; much less is it to be  exposed to animadversion.  7. In Sarat Chandra Maiti v. Bibhabati Debi (34  Cal LJ 302 : AIR 1921 Cal 584 : 66 IC 433) Sir  Asutosh Mookerjee explained what had to be  done :  ...It is plain that in cases of this  character where a litigant feels  aggrieved by the statement in a  judgment that an admission has been  made, the most convenient and  satisfactory course to follow,  wherever practicable, is to apply to  the Judge without delay and ask for  rectification or review of the  judgment...  8. So the judges’ record is conclusive. Neither  lawyer nor litigant may claim to contradict it,  except before the judge himself, but nowhere  else. "

Under the circumstances, the Division Bench of the  High Court was right in not disturbing the order of the  learned Single Judge accepting the compromise as  represented by learned counsel for the parties. Thus, on the facts of the case, it is not possible to  hold that the order of the learned Single Judge disposing of  the writ petition was bad in law particularly when he  exercised his jurisdiction under Article 226 of the  Constitution of India.  At any rate, when the findings  recorded and the decision made in the first round of  litigation between the parties being binding, the appellants  cannot take advantage on the ground that compromise was  not reduced to writing and not signed by the parties.  Even  otherwise, if this compromise is to be annulled accepting  the contention of the appellants, it would be to their  disadvantage in the light of the findings recorded earlier in  the first round of litigation.         In the earlier round of litigation, it was specifically  held that the gift deed did not create an endowment and  the temple in question was not a public temple and the land  was gifted absolutely to Gunnaji.  In a private trust, the  beneficiaries are specific individuals and in a public trust,

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the beneficiary is general public as a class.  In a private  trust, the beneficiaries can be ascertained whereas in a  public trust, they are incapable of ascertainment.  In the  present case, the ascertained individual was Gunnaji.  This  position is clear from the decision in Deoki Nandan vs.  Murlidhar [(1956) SCR 756].         Mere use of the premises as a ‘Dharamshala’ for  number of years could not lead to an inference that the  same belongs to a public trust.  Whether an endowment is  of public or private nature, depends on the facts of each  case satisfying certain tests and guidelines.  This position is  evident from the judgment of this Court in Kuldip Chand &  Anr. vs. Advocate-General to Government of H.P. &  Ors. [(2003) 5 SCC 46].  Para 34 of the said judgment  reads:- "Long user of a property as Dharamsala by itself  would not lead to an inference that dedication of  the property by Kanwar Bir Singh in favour of  the public was complete and absolute.  Had such  dedication been made, the same was expected  to be recorded in the revenue records." The argument that the impugned order is unsustainable  on the ground that the Division Bench did not consider the  effect of Sections 14, 16, 42, 80(1)(a) and (b) and Section 87  of the Act also does not help the appellants in the light of the  specific finding of fact that the gift made in Exh. A-1 in respect  of the land was absolute in favour of the ancestors of the  respondent No.1, the temple was a private temple and the  land was not endowed under the gift deed.  As is evident from  Section 1(3) of the Act, it applies to all public charitable  institutions and endowments whether registered or not. This  being the position, having regard to the findings as to the  nature and scope of the gift of the land in favour of the  ancestors of the respondent no. 1, the temple was a private  temple and the land was not endowed under the gift deed, the  Division Bench did commit no error in not considering the  effect of the aforementioned Section of the Act when the Act  itself did not apply to the properties in question.         In the suit O.S. No. 509/1971, although no specific  issue was raised as to the scope and nature of the gift  deed, the Commissioner of Endowments (appellant no. 1) in  the written statement, had raised a plea that the gift deed  merely gave general power of attorney to Gunnaji.  In that  situation, in order to decide the issues that arose for  consideration in the suit, it was necessary to decide as to  what rights were conferred by the gift deed on Gunnaji and  what was the nature and scope of the gift deed.  It cannot  be said that these aspects as to the nature and scope of the  gift deed and the rights that were conferred on Gunnaji did  arise for consideration. Both the parties knew about the  same.  The High Court in the second appeal No. 122/79, as  already stated above, noticing the findings of the lower  appellate court, recorded a findings that the land was gifted  to Gunnaji absolutely, the Government could not claim any  interest, temple constructed on a portion of the land was a  private temple and it did not make the gift of the land an  endowment in favour of the God.  These findings have  attained finality.  Failure to frame a formal issue by the  court would not invalidate the findings of the binding  judgment between the parties.  The aforementioned  findings against the appellants could neither dilute nor  deprive their binding character merely because specific  issue was not raised in the suit.  It was also contended that  in the suit, father of the respondent no. 1 claimed only  declaration as to his Mutawalliship and if he was Mutawalli,

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the question of claiming absolute right over the land did not  arise.  In the suit, one of the reliefs sought by Manik Rao  was that the order passed by the appellant no. 1 holding  that the gift in favour of Gunnaji was an endowment be set  aside which relief was ultimately granted to Manik Rao.  For  setting aside the order of the appellant no. 1, it was  necessary to consider the nature and scope of gift deed  and, therefore, the finding in that regard, which had  attained finality, could not be re-opened.  Merely because  Manik Rao claimed declaration of his mutawalliship under  misconception or wrongly, that does not affect the merit of  the case of the respondent no. 1 when there are positive  and categorical findings as to the nature and scope of the  gift deed conferring absolute right over the land in  question.  It is pertinent to state here itself that the findings  of the first appellate court and the second appellate court  regarding the nature of the gift deed were specifically  impugned by the appellants in Civil Appeal Nos. 702 and  703 of 1980 and thus the issue was raised.  The contention  was raised in the aforementioned appeals before this Court  that the courts below had wrongly interpreted the gift deed  and the findings should be overturned.  This Court in the  judgment dated 12th August, 1987 made in the said appeals  has clearly stated that the findings of the lower appellate  court and the High Court must be sustained.  It may also be  noticed that the appellants challenged the judgment of the  first appellate court and the High Court in the first round of  litigation before this Court substantially on the grounds  which are urged in the present appeal.  Some decisions are  cited on the question as to whether the judgments in the  first round of litigation operate as res judicata and whether  they are binding on the parties.         The decision  in Mathura Prasad Bajoo Jaiswal &  Ors. Vs. Dossibai N.B. Jeejeebhoy [(1970) 3 SCR 830]  and Madhvi Amma Bhawani Amma & Ors. Vs.  Kunjikutty Pillai Meenakshi Pillai & Ors. [(2000) 6 SCC  301] relied on by the learned counsel for the appellants to  support the contention that any observation made or  finding given in the judgment in the absence of an issue  framed does not operate as res judicata.  In the first case,  the question that arose for consideration was whether a  decision relating to the jurisdiction of a court erroneously  decided would operate as res judicata subsequently.  This  Court held that by an erroneous decision, if the court  assumes jurisdiction which it does not possess under the  statute, such a decision would not operate as res judicata  between the parties.  This is not a decision on the point that  a finding given by the courts having jurisdiction on the  question of fact, does not bind the parties or such a finding  does not operate as res judicata.  In the second case, the  question for consideration was whether an order of granting  succession certificate under Section 373 of the Indian  Succession Act, 1925 would operate as res judicata to the  suit for partition in a civil court between the same parties.   This Court held that the finding recorded while granting  succession certificate did not operate as res judicata in the  suit filed for partition in a civil court. It was noticed that the  grant of succession certificate falls under Part X of the said  Act.  Under Section 387 of the Act, no decision under Part X  upon any question of right between the parties shall be held  to bar the trial of the same question in any suit or in any  other proceeding between the same parties.  In para 16 of  the judgment, it is stated thus:- "16.    This leaves no room for doubt.  Thus any  adjudication made under Part X of this Act which

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includes Section 373 does not bar the same  question being raised between the same parties  in any subsequent suit or proceeding.  This  provision takes the decisions under Part X of the  Act outside the purview of Explanation VIII to  Section 11.  This gives protective umbrella to  ward off from the rays of res judicata to the  same issue being raised in a subsequent suit or  proceedings."    

Rameshwar Dayal vs. Banda (Dead) through His  LRs. & Anr. [(1993) 1 SCC 531] also does not help the  appellants.  That was a case where question of title was  incidentally determined by the Small Causes Court and  when a plea of res judicata was sought to be raised in a  subsequent suit based on title, the Court held that there  was no bar of res judicata.  The question of title incidentally  considered by the Small Cause Court in eviction  proceedings against tenant could not be taken as bar to  apply principle of res judicata in a subsequent suit based on  title.         This Court in Raj Laxmi Dasi & Ors. Vs. Banamali  Sen & Ors. [1953 SCR 154] while dealing with the doctrine  of res judicata reproduced the observations of Sir Lawrence  Jenkings made in the judgment of the Board in  Sheoparsan Singh vs. Ramnandan Singh [(1916) 43  I.A. 91] which read:- "In view of the arguments addressed to them,  their Lordships desire to emphasize that the rule  of res judicata while founded on ancient  precedent, is dictated by a wisdom which is for  all time.  ‘It hath been well said’ declared Lord  Coke, ‘interest reipubliae ut sit finis litium \026  otherwise, great oppression might be done under  colour and pretence of law’ (6 Coke, 9a).   Though the rule of the Code may be traced to an  English source, it embodies a doctrine in no way  opposed to the spirit of the law as expounded by  the Hindu commentators.  Vijnaneswara and  Nilakantha include the plea of a former judgment  among those allowed by law, each citing for this  purpose the text of Katyayana, who describes  the plea thus:‘If a person though defeated at  law, sue again, he should be answered "you  were defeated formerly".  This is called the plea  of former judgment.  And so the application of  the rule by the courts in India should be  influenced by no technical considerations of  form, but by matter of substance within the  limits allowed by law."  (Emphasis supplied)

In support of his submission, the learned counsel for  respondent no. 1 contended that as long as an issue arises  substantially in a litigation irrespective of the fact whether  or not a formal issue has been framed or a formal relief has  been claimed, a finding on the said issue would operate as  res judicata, strongly relied on the decision of this Court in  Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. Vs.   Musa Dadabhai Ummer & Ors. [(2000) 3 SCC 350].   Paras 18 and 19 of the said judgment read:- "18. In India, Mulla has referred to similar tests  (Mulla, 15th Edn., p. 104). The learned author  says : a matter in respect of which relief is  claimed in an earlier suit can be said to be

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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 issue (Ishwer Singh  v. Sarwan Singh (AIR 1965 SC 948) and Syed  Mohd. Salie Labbai v. Mohd. Hanifa ((1976) 4  SCC 780 : AIR 1976 SC 1569). We are of the  view that the above summary in Mulla is a  correct statement of the law.  19. 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."  (Emphasis supplied) In the light of what is stated above, in the case on  hand, in our view, it was necessary for the Court in the  earlier round of litigation to decide the nature and scope of  gift deed Exbt. A-1.  Accordingly, the courts decided that  the gift made in favour of ancestors of the respondent no. 1  of the land was absolute and it was not an endowment for a  public or charitable purpose.  On the facts of the case, it is  clear that though an issue was not formally framed, the  issue was material and essential for the decision of the case  in the earlier proceeding.  Hence, the bar of res judicata  applies to the facts of the present case. In Vithal Yeshwant Jathar vs. Shikandarkhan  Makhtumkhan Sardesai [(1963) 2 SCR 285], this Court  observed that "it is well settled that if the final decision in  any matter at issue between the parties is based by a Court  on its decisions on more than one point \026 each of which by  itself would be sufficient for the ultimate decision \026 the  decision on each of these points operates as res judicata  between the parties." The following three decisions were relied on by the  learned counsel for the appellants in support of his  submission that a ‘finding’ is a decision on an issue framed  in a suit and not otherwise:-

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(1)     Income-tax Officer, A-Ward,Sitapur vs. Murlidhar  Bhagwandas, Lakhimpur Kheri[(1964) 6 SCR 411] (2)     Daffadar Bhagat Singh & Sons Vs. The Income-tax  Officer, A-Ward, Ferozepore [(1969) 1 SCR 828] (3)     C.I.T. Andhra Pradesh Vs. M/s. Vadde Pulliah & Co.  [(1973) 4 SCC 121]

These three decisions are rendered interpreting  Section 34(3) of the Income-tax Act.  They do not help the  appellants.  There are not the authorities to say that a  finding is a decision on an issue framed in a suit.  This  Court observed in the said decisions that a finding, which  can be considered as relevant under the second proviso to  Section 34(3) of the Income-tax Act, must be one which  was necessary for deciding the appeal before the authority.         In view of the discussion made above on the point of  res judicata, we have taken the view that the findings  recorded between the parties in the earlier round of  litigation are binding on the appellants.  Thus, we do not  find any merit in the submission of the learned counsel for  the appellants that there are no binding findings against the  appellants in the earlier round of litigation on the ground  that those findings were recorded without there being any  issue. In the impugned judgment, the Division Bench of the  High Court, after detailed consideration upheld both the  preliminary objections namely (1) as to the maintainability  of the appeal against the order of the learned Single Judge  as the said order was passed on the basis of the consent of  the parties and (2) on the basis of doctrine of res judicata  or constructive res judicata, raised on behalf of the  respondent no. 1 and rightly so in our opinion. We do not  find any good ground or valid reason to interfere with the  impugned judgment. Thus having regard to all aspects and viewed from any  angle, we do not find any merit in this appeal.   Consequently it is dismissed but with no order as to costs.