SYEDHAMIN Vs. MEETHAN MOHAMED

JUDGEMENT

(1.) This is an appeal by the plaintiff from the decree dismissing his suit. He sued for a declaration that the decree and execution proceedings in O.S. Nos. 1655 and 1657 of 1100 of the Padmanabhapuram Munsiffs Court were fraudulently and collusively obtained and that the sale and delivery proceedings in execution of the two decrees were not binding on the plaint properties which were alleged to belong to a private family trust and also for recovery of possession of the properties from the defendants with mesne profits. His case was that these properties had been declared to be trust properties by the decree in O.S. No. 67 of the Nagercoil District Court which was confirmed by the High Court in A.S. No. 132 of 1086, that four persons including defendants 1 and 2 had been appointed as trustees by the said decree, that defendants 1 and 2 were the surviving trustees and that defendants 1 and 2 were doing various fraudulent acts to appropriate the properties themselves. It was further alleged that according to Jenmikarom decisions these properties were not liable to Jenmikarom. However, one of the trustees had executed a deed admitting liability for Michavarom and the two decrees were obtained on the basis of such an invalid deed. The plaintiff claimed that the decrees could not bind the plaint properties. The grounds on which the declaration regarding the decrees and execution proceedings were sought were that the two decrees were obtained on a false claim that the properties belonged to a Trust and that the decrees were fraudulently and collusively obtained. Defendants 3 and 4 contested. The 3rd defendants contentions were that the properties were the Jenmom properties of her family, that the same were demised on Kanom to the ancestors of the plaintiff and defendants 1 and 2 and that the decrees were validly obtained for recovery of Michavarom justly due. She denied the allegations of fraud and collusion as well as the averment in the plaint that the properties belonged to a trust. The 4th defendant who claimed under the 3rd defendant raised similar contentions. The suit was dismissed mainly on the basis of certain admissions and concessions said to have been made by counsel at the final hearing. An affidavit was filed before us by the Counsel who appeared for the plaintiff in the lower court denying the alleged admissions and concessions and in view of this we permitted the appellants counsel to address arguments on all the points.

(2.) The main point urged by Mr. Krishnamurthi Iyer, the learned counsel for the appellant was that the properties belonged to a trust and that the decrees and execution proceedings were invalid in view of the fact that the so-called trustees were not impleaded in that capacity in the two suits. Though the plaintiff had a case in the plaint that the properties belonged to a private trust, failure to describe defendants 1 and 2 as trustees in the two suits was not relied on as a ground for setting aside the decrees. However this question is not of any importance in this case because the view that we take on the main question whether the properties belonged to a trust as alleged by the plaintiff.

(3.) The foundation on which the plaintiffs case rests is his assertion that there is a valid wakf and that the properties belonged to that wakf. The plaintiffs sought to prove this fact by producing Exts. B and C copy of the judgment in O.S. No. 67 of 1083 of the Nagercoil District Court and the decree in A.S. No. 132 of 1086 of the High Court. Ext. B was the judgment in a suit for removal of the trustees or Mutawallis including defendants 1 and 2 and for setting aside certain alienations. The 3rd defendant was not a party to that suit. The judgment Ext. B though not interpartes is admissible in evidence under S. 13 of the Evidence Act. However, the judgment can neither be considered conclusive nor can the findings contained therein be used as evidence in this case. It is not the correctness of the previous decision but the fact that there has been a prior decision that is established by the judgment. The limited use to which such judgments may be put has been explained by the Privy Council in Dinomoni v. Brij Mohini ( 29 Indian Appeals 24 ). It was held that an order under S. 145 of the Criminal Procedure Code was admissible to show that such an order was made, who the parties to the dispute were, what the land in dispute was and who was declared entitled to retain such possession and that the order was admissible for this purpose and to this extent for and against every one when the fact of possession on the date of the order has to be ascertained. Mookerjee, J. has explained the position in the passage extracted below from his judgment in Kashinath Pal v. Jagatkeshore (20 C.W.N. 643 at p. 644).