KHAJA SYED SHA BABA ABDUL HISSAINI SAHARAWARDHI SADAR SAJJADA NASHEEN DARGA MANAGER Vs. SYED NAZMUDDIN HUSSAINI DIED

JUDGEMENT

(1.) JUDGMENT :This is an appeal filed against the judgment and decree dated 18.5.1994 in A.S. No.44 of 1988 on the file of Additional District Judge, Hindupur, confirming the decree and judgment dated 31.10.1988 in O.S. No.67 of 1986 (O.S. No.100 of 1983 on the file of District Munsif, Penukonda) on the file of Subordinate Judge, Penukonda.

(2.) Necessary facts for the disposal of this second appeal are as follows: There is a Dargah of Saint Syed Shah Baba Fakruddin at Penukonda in Anantapur District. On the day of annual Urs every year, Sandal Ceremony will be performed in the said Dargah. The first appellant filed the suit O.S. No.67 of 1986 seeking declaration that the first defendant is entitled to perform the ceremony called as Chinna Gandham Ceremony between 11.00 p.m., and 12.00 midnight only at the time of annual Urs in the Dargah every year and consequential permanent injunction restraining the defendants, their men and agents from conducting Chinna Gandham Ceremony at any other time other than 11.00 p.m. and 12.00 midnight. Sandal Ceremony will be performed by the members of the family of the first defendant and thereafter the members of his family of the plaints will perform another Sandal Ceremony in the same Dargah. The Sandal Ceremony being performed by the first defendant is called by the plaintiff in the plaint as Chinna Gandham Ceremony. The defendants contested the suit taking the plea that first defendant and his family members are entitled to perform the Sandal Ceremony from 11.00 p.m. to 2.00 a.m., on the day of annual Urs Ceremony. Prior to the present suit, the first defendant filed a suit in O.S. No.285 of 1960 on the file of Additional District Munsif, Penukonda seeking declaration of exclusive right of himself and members of his family to perform First Sandal Ceremony during the annual Urs at suit Dargah and for permanent injunction restraining the defendants therein from interfering with his said right. The 1st appellant herein contested the said suit vehemently. The said suit was decreed by the Trial Court on 31.12.1965. Thereupon the first appellant herein preferred an appeal in A.S. No.126 of 1966 on the file of Additional District Judge, Anantapur. The said appeal was dismissed by the Appellate Court. Thereupon he preferred a second appeal in S.A. No.530 of 1968 on the file of this Court. The second appeal was dismissed by this Court by judgment dated 14.4.1970. In the above judgment, this Court stated that for the upkeep of suit Dargah, 9 villages were granted as Inam by a Hindu King in 14th or 15th Century, the Inam villages were divided into six shares, one such share was allotted for defraying the expenses of performing annual Urs and other expenses of the Dargah and the other five shares were enjoyed by the five sharers who are the direct descendants of the Saint. It is further stated in the above judgment by this Court that one of the important ceremonies connected with the Urs is known as First Sandal Ceremony (First Gandham Ceremony) and the family of the plaintiff therein was performing the said First Sandal Ceremony. The Trial Court held in the present suit in O.S. No.67 of 1986 that this said suit was barred by principle of res judicata in view of the judgment in O.S. No.285 of 1960 confirmed by this Court in S.A. No.530 of 1968. The judgment in O.S. No.285 of 1960 is marked in the present suit as Ex.B.1. Similarly the judgment of this Court in S.A. No.530 of 1968 is marked as Ex.B-2. The plaintiff in O.S. No.67 of 1986 died and the present 2nd appellant came on record as second plaintiff in the suit. Similarly the first defendant in the suit also died and defendants 15 to 22, namely, respondents 15 to 22 came on record as legal representatives of the deceased first defendant during the pendency of the suit.

(3.) During the pendency of the appeal in A.S. No.44 of 1988, the 2nd appellant and respondent No.13, and respondents 16 to 20 before the lower Appellate Court entered into a compromise and filed a compromise petition. The compromise is to the effect that the first defendant and his family members can perform the First Sandal Ceremony between 11.00 p.m. and 12.00 midnight only. The lower Aappellate Court held that First Sandal Ceremony during specified hours and other followers of defendant No.1 participating in the said function during specified hours is an indivisible right. It held further that respondents 13 and 16 to 20 colluding with the opposite party, namely, 2nd appellant cannot alter the timings during which the Ceremony has to be performed actually and dictate the contesting respondents and other followers to participate in the function at their will. It further held that there is nothing in Order XXIII Rule 3 CPC, which indicates that passing of decree must immediately follow recording of compromise and a duty is cast upon the Court to see whether a valid compromise was arrived at between the parties. According to the lower appellate Court in the present case there is a plea of res judicata and the Court cannot pass a decree in terms of the compromise immediately. According to the lower appellate Court, the strength and weaknesses of the suit also becomes relevant while passing the decree in terms of the compromise and in the instant case the compromising respondents put an end to the prevailing usage and custom and colluded with the 2nd appellant, they acted in clear disregard of the rights of the other contesting respondents and other followers, there are no bona fides on the part of the compromising respondents, the filing of the compromise petition is only to get rid of the adverse findings of the Court basing on the principles of res judicata, the principles embodied in Section 11 C.P.C., prevails over the agreement of the parties and if the Court passes any decree in terms of the compromise, it will be without jurisdiction. On the above grounds, the lower appellate Court declined to pass a compromise decree. As clear from para 17 of the lower appellate Court judgment, the parties to the compromise petition accepted before the lower appellate Court the terms of the compromise. The lower appellate Court also mentioned that the compromise is recorded, but it refused to pass a decree in terms of the compromise entered into between some parties to the appeal pending before it. After refusing to record the compromise in question, it further held that the suit instituted by the first appellant herein was barred by the principle of resjudicata in view of the earlier judgments in Exs.B.1 and B.2. Accordingly the lower appellate Court dismissed the appeal. Aggrieved by the said judgment and decree of the lower appellate Court, the appellants herein preferred the present second appeal.