SYED ABU MAHOMED BARAKAT ALI Vs. ABDUR RAHIM

JUDGEMENT

(1.) These two appeals arise out of a suit brought by five persons on the allegation that they as worshippers are interested in a public charitable trust which was wakf property and they brought the suit on behalf of the general Mussalman community as their representatives. The suit was brought against a number of defendants and the main prayer was that the compromise decree in suit No. 48 of 1910 should be declared to be not binding upon the plaintiffs and the Masulis of the Musjid. The defendants Nos. 1 to 18 are the descendants of one Mir Miran who was said to be the original Mutwali of the Mosque and the wakf property. The defendants Nos. 19 to 27 are purchasers of some of the properties which the plaintiffs alleged were included in the wakf estate; and the defendants Nos. 28 to 42 are the representatives of the plaintiffs who representing the Mahomedan community in general brought the previous suit No. 48 of 1910 under Section 92, Civil Procedure Code. The defendants Nos. 43 and 44 also are transferees of certain properties from some of the defendants of Mir Miran, defendants Nos. 1 to 18. The defendants Nos. 19 to 22 are appellants in appeal 168 and defendant No. 44 is the appellant in appeal 212. Defendant No. 26 is a respondent in appeal 168. He appears in this Court and supports the appellants.

(2.) Various questions of law have been elaborately discussed before us and a large number of rulings has been the subject of minute criticism by both the learned vakils appearing before us; but the main question as it seems to us involved in this case is as to the effect of the decree which was made on compromise in suit No. 48 of 1910. The Subordinate Judge has held that that decree is not binding on the present plaintiffs.

(3.) Two questions on this head have been argued on behalf of the appellants before us. The first is, whether the compromise decree in Title Suit 48 of 1910 is binding upon the present plaintiffs, and the next question is whether the Court had jurisdiction to set aside the decree in Suit 48 of 1910. Several other issues were raised before the Subordinate Judge and the most important of which is whether the disputed properties were wakf properties. That issue was decided in favour of the plaintiff and no question has been raised with regard to that point before us, as the argument of the appellants proceeded upon the ground that assuming that the property was valid Wakf property, whether the plaintiffs are entitled to succeed in this suit. The suit of 1910 was brought by seven persons as plaintiffs against one defendant originally on the 18 July 1910 under Section 92, Civil Procedure Code, with the sanction of the Advocate General. Subsequently there appears to have been an application for amendment of the plaint and the amendment was allowed by the District Judge before whom the case was pending on the 15 December 1910. The amendment was by the addition of a certain number of defendants who were the descendants of Mir Miran, the original defendant being his son's widow. Another amendment was by the addition of a paragraph which was paragraph 16 of the plaint where it was stated that the defendant No. 1 had executed a document in favour of her son defendant No. 2 which was a collusive paper transaction and that the said defendant No. 2 and the other defendants claiming the property mentioned in the schedule as their personal property wore taking steps to have them partitioned. The third amendment was the addition of a prayer (f) to the effect that the property in suit be declared Wakf property and that the defendants had not any personal interest for a considerable time in Court, and on the 15 September 1911 there was a petition purporting to have boon signed by six of the plaintiffs in the suit stating the terms of compromise of the suit. On the 16 September 1911 the presiding Judge made this order. "The compromise has now been accepted by all parties to the suit. The terms are set out in the petition filed by the plaintiffs on the 15 September to which a plan is attached." Then the order winds up by saying "Let a decree be drawn up in terms of the petition, a copy of the plan above referred to will form a part of the decree". A formal decree was drawn up subsequently in the presence of the pleaders of both the parties and it is the case of the appellants that the present suit is bound by the said compromise decree. The learned Subordinate Judge has held that the decree was not binding on the plaintiffs on several grounds.