MUHAMMAD AMIR Vs. SUMITRA KUAR

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiffs, who are nine members of the Muham-madan community, claimed a declaration that a certain mosque, mausoleum, the site of an imambara, together with a flower garden appertaining to the mosque and imambara and a pacca well built by Choti Bibi are waqf property, and that a western door which appertained to the waqf property might be re-opened, and other reliefs. Both the courts below have dismissed the suit as barred by the principle of res judicata. It appears that in the year 1887 two persons brought a suit in respect of certain property which included the property now in suit, against the predecessors in title of the present defendants, who were auction-purchasers in execution of a decree against one Abdullah Khan. In that suit it was expressly held that the plaintiffs had failed to prove that the property or any part thereof, was waqf. It is said, on behalf of the appellants, that the litigation in 1887 to which we have just referred, was not identical with the litigation in the present case. In the litigation of 1883 there were two plaintiffs. Both claimed as members of the Muhammadan community that the property was waqf, and one of them claimed that he was the mutawalli. It seems to us, therefore, that the very same question which is involved in the present suit was involved in the previous litigation.

(2.) It is next said that the plaintiffs in the previous litigation were litigating not as members of the public but in their private capacity. We think that this contention cannot be sustained. It was necessary for them in the first, instance to establish as members of the public that a valid waqf had been created. There can be no question that they were litigating bond fide. We think, therefore, that, under the circumstances of the present case, the plaintiffs in the previous litigation were persons litigating bond fide in respect of a public right claimed in common for themselves and others and, therefore, the present, plaintiffs must be deemed to be persons claiming under the plaintiffs in the previous litigation.

(3.) It is lastly contended that in the previous litigation the defendants admitted the right to worship. There is no doubt a statement in the judgment that the defendants had "no objection to the mosque being used." This seems to be a mere statement relating to the litigation then before the court. In the present case the plaintiffs expressly claim that the mausoleum and a certain specified plot are waqf property. In our opinion this question was finally decided in the previous litigation which held that it was not waqf. Under these circumstances we thinkthat the decree of the court below was correct and ought to be affirmed. We accordingly dismiss the appeal with costs.