Holding

The High Court’s consent order accepting the compromise is valid, CPC Order XXIII Rule 3 does not apply to writ proceedings under Article 226, and the earlier findings that the land was an absolute private gift and not an endowment are binding under res judicata.

Summary

The case concerned 5 bighas of land donated by a Fauzdar to his ancestor for the construction of a temple. The land was held to be an absolute private gift, not an endowment, and the temple was deemed a private temple. After a long series of suits, appeals and a Supreme Court judgment confirming these findings, the State Government proposed a compromise in 1989, which was recorded by a High Court Single Judge on the parties' consent, despite the compromise not being reduced to a written deed. The appellants challenged the validity of that order, arguing that the compromise required a written, signed deed, that the Andhra Pradesh Endowments Act should apply, and that the earlier findings were not binding. The Supreme Court held that the consent order was valid, that CPC Order XXIII Rule 3 does not govern writ proceedings under Article 226, and that the earlier findings that the land was a private gift and not an endowment are binding under the doctrine of res judicata. Consequently, the appeal was dismissed.

Issues considered

The nature of the gift deed: whether the land constituted a public endowment or a private gift.
Whether the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 applies to the disputed land.
The applicability of CPC Order XXIII Rule 3 and the requirement of a written, signed compromise deed in writ proceedings under Article 226.
The effect of the earlier Supreme Court and High Court findings on the present dispute – i.e., whether res judicata/constructive res judicata bars re‑litigation.
The maintainability of an appeal against a consent order passed by a Single Judge in a writ petition.

Legislation cited

Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987s. 1(3), s. 14, s. 16, s. 42, s. 80(1)(a), s. 80(1)(b), s. 87
Code of Civil Procedure, 1908s. Order XXIII Rule 3, s. Section 141

Subjects

endowmentprivate templegift deedres judicataArticle 226compromise decreeAndhra Pradesh Endowments ActCPC Order 23 Rule 3public trust vs private trustwrit petition

Judgment

A COMMISSIONER OF ENDOWMENTS AND ORS.
v.
VITTAL RAO AND ORS.

NOVEMBER 25, 2004

B
[SHIVARAJ V. PATIL AND B.N. SRIKRISHNA, JJ.]

Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowments Act, 1987; Ss. 1(3) 14, 16, 42, 80(/)(a) and (b)/Andhra
Pradesh (Telengana Areas) Wakf Rules; Rule 156 :
c
Donation of land by one person to another for the purpose of
construction of a temple-Right of Successor of donee as trustee of the
temple-Held : Nature of an endowment, public or private, could be
ascertained by applying certain tests/guidelines-Division Bench of the High
D Court rightly held that since the gift made in respect of the temple land
in favour ofancestor ofrespondent was absolute, temple constructed thereon
was a private temple-Since the land not endowed, provisions of the Act
not attracted-State Government could not claim any interest on it-Since
offering of a compromise proposal by the counsel of the State for consent
by the other partyldonee does not amount to concession on point of law,
E the findings of the High Court binding-Failure to frame a formal issue
would not invalidate/dilute binding character of the proceedings-Since no
appeal was preferred, the order attained finality-No good grounds shown
to interfere with the judgment-A.P. Writ Proceeding Rules, 1977; Rule
24.
F
'Public trust' and 'private trust '-Distinction between-Discussed.

Code of Civil Procedure, 1908 :

Order XXJIJ Rule 3 and Section 141
G
Applicability of same procedure in regard to suits in the proceedings
under Article 226 of the Constitution-Held : Not applicable-Constitution
of India, 1950-Article 226. ·

H Section 11 :
374
COMMISSIONER OF ENDOWMENTS v. VITTAL RAO 375

Doctrine of res judicatalconstructive res judicata-Applicability of- A
Held :Since the issue as to nature and scope of gift deed in the earlier
round of litigation though not formally framed but determined as it was
material and essential, bar of res judicata applies.

A person donated 5 bighas of land to the ancestor of respondent
B
No. 1 for construction of a temple. Donee started construction of the
temple but before its completion, he died and the construction got
completed by his sister. Later, in the year 1939, the State Government
of Andhra Pradesh constituted a Supervisory Committee to regulate
management of the temple under the provisions of A.P. Wakf Rules,
since then the temple affairs had been managed by the Committee. In c
the year 1962, father of respondent No. 1 applied for transfer of
towaliatship in his name. Registration Officer allowed the claim and
accordingly ordered for amendment in the Revenue records in terms of
Hyderabad Endowment Rules. Aggrieved, the Committee filed an appeal
which was dismissed by the Appellate Authority. However, Revision D
Petition was allowed by the State Government. Father of respondent No.
1 filed a declaratory suit. Trial Court dismissed the suit. Appellate
Court allowed the appeal. The Committee preferred an appeal which
was dismissed by the High Court holding that since the land in question
was gifted absolutely to the ancestor of respondent No. 1, the Government
could not claim any interest on it. The State Government and the E
Committee filed appeals which were dismissed by this Court.

State Government issued a Memorandum to compromise the dispute
on certain terms in the interest of the temple. Accordingly, authority
concerned issued instructions to the tenants in the temple premises to F
pay to respondent No. 1 the rent due. However, the Deputy Commissioner
of Endowments set aside the instruction on the ground and terms of
compromise had not been reduced into a deed of compromise. Respondent
No. I/successor filed a writ petition to quash the order and also filed an
affidavit stating that he was ready to accept the terms of compromise.
Single Judge of the High Court disposed of the writ petition by recording G
the terms of compromise as agreed by both the parties. Authorities
concerned did not prefer any appeal. However, respondents/purchaser
of the land, filed writ appeal which was dismissed by the Division Bench
of the High Court holding that the Judgment of the Supreme Court in
the matter had attained finality. State Government filed Review Petition H
376 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A which was dismissed by the High Court. In the meantime, father of
respondent No. 1 filed a Contempt Petition against the Government and
the authorities. The Court did not proceed with the Contempt Petition
since counsel for the Government assured compliance of the orders. The
. Commissioner of Endowment and Others filed Special leave Petition
.B before this Court which was dismissed as withdrawn. Hence the present
appeal.

It was contended by the appellants that the compromise deed was
only at the proposal stage and not acted upon by the authority concerned;
that since the proposed terms of compromise were rejected by ~espondent
C No. 1, they ceased to exist in the eyes of law; that the Division Bench
·of the High Court ought to have examined the legality to the alleged
compromise in the light of the provisions as contained in the Andhra
Pradesh Endowments Act, 1987 as the illegality was writ large in the
pfoposed terms of compromise; that the compromise deed should have
D been in writing and signed by the parties in terms of Orders XXIII Rule
3 CPC; that 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; that a concession made
by the counsel on the question of law is not binding on the parties; that
_there is no bar in challenging the consent order on the ground of
E illegality and/or fraud in terms of section 96(3) CPC; and that the
observations made by the Single Judge of the High Court were not
'findings 1 as there was no issue at all warranting the same and the
observations in any event were outside the scope of a second appeal,
consequently, they were without jurisdiction; and a decree ordered by
F a Court wi!hout jurisdiction is a nullity.

Respondent No. 1 submitted that the High Court rightly dismissed
the appeal on the three grounds-( a) in terms 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
G (c) the finding recorded in the first round of litigation operated as res
judicata against the appellants; that the consent order passed in the writ
petition is not contrary to the provisions of the Act; that the temple in
question was a private temple and the finding had attained finality as
not challenged; that merely because there is reference to a Dharamshala
H in the gift deed it did not imply that there was an endowment of a.public
COMMISSIONER OF ENDOWMENTS v. VITTAL RAO 377

character; that Order XXIII Rule 3 CPC cannot strictly be applied to A
the proceedings under Article 226 of the Constitution of India; and that
the decisions and findings recorded in the first round of litigation do
... operate as res judicata against the appellants.

Dismissing the appeal, the Court
B
HELD : 1.1. It is clear that the Single Judge of the High Court
disposed of the writ petition by the consent of the parties accepting the
compromise memo. The present appellants did not file any appeal against
the order. The order passed by the Single Judge accepting the compromise
on the basis of the statement made on behalf of the parties is upheld. C
[393-H; 394-A, BJ

1.2. It was contended for the first time by the appellants before the
Division Bench of the High Court in the Writ Appeal that the Advocate
General did not appear before the Single Judge of the High Court and
it is not the case of the appellants that the counsel representing the D
appellants before the Single Judge was not authorized to make the
consent statement to accept the compromise. The writ petition was
disposed of by Single Judge of the High Court in terms of the compromise
deed with a direction to implement it within a specified period. The
representation so made or consent given for disposal of the Writ Petition E
before the Single Judge is not and does not amount to giving of concession
on a point of law particularly when taking a view that the provisions
of the Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowment Act have no application to the property in question. Father,
in this case, there was no concession by the counsel on behalf of the
appellants on a point of law. [395-A, B, C, D, E,] F
Nedunuri Kameswaramma v. Sampat Subba Rao, [1963] 2 SCR 208
and B.S. Bajwa & Anr. v. State of Punjab & Ors., [1998] 2 SCC 523,
distinguished.

2.1. It io: true that under Rule 24 of the Andhra Pradesh Writ G
Proceedings Rules, 1977, the provisions of the Code of Civil Procedure,
1908 would apply to writ petitions or writ appeals. Section 141 CPC also
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 the Section states that the expression 'proceedings' does H
378 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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 High
Court while exercising jurisdiction under Article 226 of the Constitution
of India has jurisdiction to pass appropriate orders. Such power can
..
B 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 XXII Rules
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 should be
framed or evidence should be recorded etc. (396-G, H; 396-A, B 397-A)
c
Gurpreet Singh v. Chatur Bhuj Goel, [1988) 1 SCC 270 and Banwari
Lal v. Chanda Devi (Smt.) through LRs. & Anr., [1993) 1 SCC 581,
distinguished.

D 2.2. Proceedings under Article 226 of the Constitution oflndia stand
on a different footing when com pared to the proceedings in suits or appeals
arising therefrom. Under the circumstances of the case, the Division Bench
of the High Court was right in not disturbing the order of the Single Judge
accepting the compromise as represented by counsel for the parties. On
the facts of the case, it is not possible to hold that the order of the Single
E Judge disposing of the writ petition was bad in law particularly when he
exercised his jurisdiction under Article 226 of the Constitution oflndia.
At any rate, when the findings recorded and the decision made in the first
round oflitigation between the parties being binding, the appellants cannot
take advantage on the gro~nd that compromise was not reduced to writing
F and not signed by the parties. (397-A; 399-B, C, DJ

Byram Pestonji Gariwa!a v. Union Bank of India & Ors., (1992) I
sec 31, relied on.
State of Maharashtra v. Ramdas Shrinivas Nayak & Anr., f 19821 2
G sec 463, referred to.
3.1. Mere use of the premises as '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
H on the facts of each case satisfying certain tests and guidelines. (399-GJ
COMMISSIONER OF ENDOWMENTS v. VITTAL RAO 379

Ku/dip Chand & Anr. v. Advocate-General to Government of H.P. & A
Ors., (2003) 5 SCC 46, relied on.

3.2. The specific finding of fact that the Division Bench of the High
Court made io respect of the land was that it was absolutely gifted in
favour of the ancestors of respondent No. 1, the temple was a private B
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 respondent No. 1, the temple was
a private temple and the land was not endowed under the gift deed, the C
Division Bench of the High Court committed no error in not considering
the effect of Sections 14, 16, 42, 80(l(a) and (b) and 87 of the Act when
the Act itself did not apply to the properties in question. [400-C, DJ

3.3. In the earlier round of litigation, it was specifically held that D
the gift deed not create an endowment and the temple in question was
not a public temple and that the land was gifted absolutely to the
ancestor of the respondent. In a private trust, the beneficiaries are
specific individuals and in a public trust, 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. (399-E) E

Deoki Nandan v. Murlidhar, [1956) SCR 756, relied on.

3.4. It cannot be said that the aspects as to nature and scope of the gift
deed and the rights that were conferred on donee, the ancestor of F
respondent No. 1 did arise for consideration. Both the parties knew about
the same. The High Court in the second appeal noticing the findings of the
lower appellate court, recorded a finding that the land was gifted to the
donee absolutely, the Government could not claim any interest, temple
constructe~ 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 <J
findings have attained finality. Failure to frame a formal issue by the
Court would not invalidate the findings of the holding judgment between
the parties. These findings against the appellants could neither become
diluted, nor deprived of their binding character merely because specific
issue was not raised in the suit. [400-F, G, HJ H
380 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 3.5. Merely because father of respondent No. 1 claimed declaration
of his mutawalliship under misconception, or wrongly, that does n.ot
affect the merit of the case of 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. [401-B, CJ
B
4. In the earlier round of litigation, it was necessary for the O>Urt
to decide the nature and scope of gift. d.eed. Accordingly, the, courts
decided that the gift made in favour of ancestors of respondent No. 1
of the .land was absolute and it was not an endowment for a public or
C cha~itable 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. (404-E, F]

Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai NB. Jeejeebhoy,
D [1970) 3 SCR 830; Madhvi Amma Bhawani Amma & Ors. v. Kunjikutty
Pillai Meenakshi Pillai & Ors., (2000) 6 SCC 301; Rameshwar Dayal v.
Banda (Dead) through his LRs. & Anr., (1993) 1 SCC 531; Income-tax
Officer, A-Ward, Sitapur v. Murlidhar Bhagwandas, Lakhimpur Kheri,
(1964] 6 SCR 411; Daffadar Bhagat Singh & Sons v. The Income-tax
E Officer, A-Ward, Ferozepore, (1969) 1SCR828 and C.J. T. Andhra Pradesh·
v. Mis. Vadde Pulliah & Co,. [1973) 4 SCC 121, distinguished.

l{aj Laxmi Dasi & Ors. v. Banama/i Sen & Ors., [1953) SCR 154;
Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. v. Musa Dadabhai Ummer
& Ors., [2000) 3 SCC 350 and Vithal Yeshwant Jathar v. Shikandarkhan
F Makhtumkhan Sardesai, (1963) 2 SCR 285, relied on.

5. The Division Bench of the High Court rightly upheld both the
preliminary objections namely (1) as to the maintainability of the appeal
against the order of the Single Judge as the order was passed on the basis
G .
of the consent of the parties and (2) as to the applicability. of doctrine
of res judicata or constructive res judicata. Hence, no good ground or
valid reason is found to interfere with the impugned judgme~t. [405-F)

CIVIL APPELLATE JURISDICTIQ_N : Civil Appeal No. 6246 of
H 1998.
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL, J.] 381

From the Judgment and Order dated 21.10.98 of the Andhra Pradesh A
High Court in W.A. No. 429 of 1998.

P.P. Rao, B. Sridhar, Ms. P. Mahalakshmi, Ms. A. Aiyagaria and K.
Ram Kumar for the Appellants.
B
Rajeev Sharma, S. Reddy, Vijay M. Chauhan, Azim H. Laskar and
V.N. Raghupathy for the Respondent No. l.

D. Ramakrishna Reddy, G. Venugopal and Ms. D. Bharathi Reddy for
the Respondent Nos. 3 & 5.
c
The Judgment of the Court was delivered by

SHIV ARAJ 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
I 998 is under challenge. Parties are before this Court for the third time in D
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. l for the purpose of
construction ofa temple, now known as Sri Jangli Vittobha Temple. Gunnaji
died and after his death, his sister Suguna Bai completed the construction E
of the temple. In 1939, one Golakishan Gir claiming himsel( 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 F
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 G
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. l 0.1966 made by the Director of Endowments. The
revision petition was allowed and the order of the Director of Endowments H
382 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A 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
B 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
C the 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 appelJate 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 .·
D 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
E 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.
F Nos. 702/80 & 703180 on 12.8.1987 after granting leave in the SLPs. Thus,
the judgment and decree passed in favour ofManik Rao by the first appellate
court in A.S. No. 199/77 attained finality.

About two years later, the Commissioner of Endowments, Govt. of
G Andhra Pradesh (appellant No. I), 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
H on certain terms.
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL, J.] 383

The Assistant commissioner of Endowments issued instructions dated A
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 B
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 com!Jromise.
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 c
of Endow.ments 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 D
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 (respondent no. l
herein) filed a counter affidavit stating that he was ready to accept the terms E
of compromise suggested in the Govt. Memo dated 27 .10.1989. Learned
Single Judge by his order dated 17. l 0.1995 disposed of th~ 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 F
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. l 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 imp leaded
subsequently in the writ petition, contending to be the purchasers of the land, G
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 H
384 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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
B 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.
c
ft 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
D 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
E 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/
F 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
G 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 forthe petitioner after some arguments
H seeks leave to withdraw this Special Leave Petition with a view to.
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL. J.] 385

filing appropriate proceedings for challenging the consent order in A
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. .B
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. l. The Division
Bench also held that the Government could not go back on its assurance
given in the contempt case. Hence, this appeal.
c
Shri P.P. Rao, learned senior counsel for the appellants in support of
the appeal, urged the following contentions: -

I. The Division Bench of the High Court having condoned the delay D
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 E
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. l approached the High Court with a request
that the writ petition may be disposed of recording the said compromise as F
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 G
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
E~~?wments Act, 1987 (for.short 'the Act'); the Division Bench ought to
pave
.J'..•")L
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. H
386 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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,
B 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.

C 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. I to 4 when
the writ petition was disposed of; a concession made by the counsel on the
D 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: -
E
"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,
F does not make the gift of the land an en.dowment 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
G '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
H of execution and even in the collateral proceedings.
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL. J.] 387

6. The observations made by the learned single Judge while dismissing A
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.
B
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 C
following submissions fully supporting the impugned judgment: -

l. The High Court rightly dismissed the appeal by the impugned order
on the three grounds-(a) in view of Section 96(3) ofCPC an appeal against
a consent decree was not maintainable, (b) the allegations of fraud and D
misrepresentation were without any basis and (c) the finding recorded in the
first round of litigation operated as res judicata 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 E
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 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 F
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: -
G
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. l 0.1989. ·

b) ln the proposal dated 14.6.1989, the Commissioner of Endowment H
388 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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 ofthe 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.
B
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.

c 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
D that the High Court committed any error in disposing of the writ
petition accordingly.

4. The cbnsent order passed in the writ petition is not contrary to the
provisions of the Act -
E
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.
F
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
G 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

H
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.
.
.

,-
'
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL, J.] 389

6. Order XXIII Rule 3 CPC cannot be strictly applied to the proceedings A
under Article 226 of the Constitution of India -

a) The explanation to Section 14 l 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 B
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 inherent powers to do justice between
the parties; the power of the High Court to dispose of the matter by
c
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.
D
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 ofCPC 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
E

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
F
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 res judicata against the appellants. G

8. In view of the dismissal of Civil Appeal Nos. 702 and 703of1980
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. H
390 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A 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. l, filed suit No. OS No. 509
of 1971 in the City Civil Court at Hyderabad for declaration that the plaintiff
B 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. I I 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
I 7.6. I 97 I covered by G.O. Rt. No. 680. The Government of Andhra Pradesh
C 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.
D
The First Appeal A.S. No. 199 of 1977, filed by the plaintiff Manik
Rao, was allowed on 22.12.1978 granting decree as sougbt for by the
plaintiff in the suit. Temple Committee, the third defendant in the suit, filed
Second Appeal S.A. No. 122of1979 in the High Court. The Government
and the Endowment Commissioner (defendant Nos. l and 2) did not file any
E appeal challenging the decree passed by the first appellate court in favour
of Manik Rao, father of respondent No. I. 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
F noticed, thus: -

"The case of the plaintiff is that as early as the year 1809, one Khan
gifted five bigas 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,
G 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
H defendant, who is the appellant herein, is that the land was gifted
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL. J.] 391

in favour of a temple that the same is thus an endowment in favour A
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
B
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 c
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 D
appeal, as already stated nor contested it. After hearing and considering th~
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 E
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- F
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 G
Pradesh and the Commissioner, endowments although did not file second
appeal against the decree passed by the first appellant court in favour of the
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 H
392 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A 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 on
12.8.1987:-

"The High Court concurred with the findings of the Lower Appellate ·
B
Court on a construction of the Deed Ex. A-1. It is now contended
before us that the translation of Ex.A- I 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.
c 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."

D 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
E 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; tht Government cannot claim any interest in the land
F 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
G 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,
H were stated. This report shows that there has been proper consideration and
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL, J.) 393
t.

application of mind as to how and why it was in the interest of the temple A
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-11-1/84-21, 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 B
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 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. l 0.1989
had not been reduced into a deed of compromise. Thereafter, the Assistant C
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 D
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 E
W.P.M.P. No. 1543811995 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 F
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 G
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 H
394 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A 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
B 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
C 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
D 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 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:-

E "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
F of the orders of this Court in Writ Appeal No. 1536 of 1995 by
taking into consideration the obserrntions 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."

G Against the dismissal of the review petition the Commissioner, Endowments
and others filed Special Leave Petition No. 227 46 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
H is only thereafter the appellants herein filed Writ Appeal No. 429 of 1998,
COMMISSIONER OF ENDOWMENTS v. VITTAL RAO [PATIL, J.] 395

which was disposed of by the impugned judgment. A

It was not contended on behalf of the appellants, tiH 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 B
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 oflaw 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 C
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 D
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 v. Sampat Subba Rau, [1963) 2 SCR 208 and (2) B.S.
Bajwa & Anr. v. 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 E
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 che learned
counsel on behalf of the appellants on a point of law.

The contention that the order passed by the learned single Judge F
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 the reasons more than one.

The decisions in Gurpreet Singh v. Chatur Bhuj Goel, [1988] 1 SCC
270 and Banwari Lal v. Chanda Devi (Smt.) through L.Rs. & Anr., [1993] G
1 sec 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 redu~ed to writing and was not signed by the parties could not be
accepted, do not advance the case of the appellants. These decisions dealt H
396 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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 ofCPC provides that procedure provided in the Code
in regard to suits shall be followed in all proceedings in any court of civil
B jurisdiction. But, the explanation to Section 141 states that the expression
'proceedings' does not include any proceedings under Article 226 of the
Constitution oflndia. 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. I 0.1989 on the basis of the submissions made by
C 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. I 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
D before the court to accept the compromise. In Byram Pestonji Gariwala v.
Union Bank of India & Ors., [1992] I 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
E always been universally un.derstood 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 ofhis principal,
so can counsel, possessed of the requisite authorisation by
vakalatnama, act on behalf of his client. Not to recognise such •
F 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."

G 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
H Article 226 of the Constitution of India. Otherwise anomalous situation
COMMISSIONER OF ENDOWMENTS v. VITTAL RAO [PATIL, J.] 397

would arise such as before disposing of the writ petition, issue should be A
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 B
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 v. 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 C
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 D
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 E
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 Che tty v. Subramanian Chetty, F
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 G
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, H
398 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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
B
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 and had led to gross
c 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 :
D
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.

E 6. In Ring-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 emphasise the importance of rigidly
maintaining the rule that a statement by learned Judge as to
F 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 Sarai Chandra Maiti v. Bibhabati Debi, (34 Cal LJ 302: AIR
(1921) Cal 584: 66 IC 433) Sir Asutosh Mookerjee explained what
G 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
H to follow, wherever practicable, is to apply to the Jttdge without
COMMISSIONER OF ENDOWMENTS v. VITTAL RAO [PATIL, J.] 399

delay and ask for rectification or review of the judgment... A
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
B
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 c
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, D
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
E
public temple and the land was gifted absolutely to Gunnaji. In a private
trust, the beneficiaries are specific individuals and in a public trust, 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 v. Murlidhar, F
[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 G
satisfying certain tests and guidelines. This position is evident from the
judgment of this Court in Ku/dip Chand & Anr. v. 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 H
400 SUPREME COURT REPORTS (2004) SUPP. 6 S.C.R.

A 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."

B 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(l)(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
C 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
D 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
E (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
F 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
G 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
H because specific issue was not raised in the suit. It was also contended that
COMMISSIONER OF ENDOWMENTS v. VITTAL RAO [PATIL, J.] 401

in the suit, father of the respondent no. 1 claimed only declaration as to his A
Mutawalliship and if he was Mutawal!i, 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. I 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 B
no. I, 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 c
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 D
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 E
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.
F
The decision in Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai
N.B. Jeejeebhoy, (1970] 3 SCR 830 and Madhvi Amma Bhawani Amma &
Ors. v. 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 G
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 H
402 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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
B 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
ofright between the parties shalrbe held to bar the trial of the same question
c in any suit or in any other proceeding between the same parties. In para 16
of the judgment, it is stated thus:-

"16. Thfo leaves no room for doubt. Thus any adjudication made
under Part X of this Act which includes Section 373 does not bar
D 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."
E
Rameshwar Dayal v. 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
F 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 atJply principle of res judicata
in a subsequent suit based on title.

This Court in Raj Laxmi Dasi & Ors. v. Banamali Sen & Ors., [1953)
G 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 v. Ramnandan Singh, [1916] 43 I.A. 91 which read:-

"In view of the arguments addressed to them, their Lordships desire
H to emphasize that the rule of res judicata while founded on ancient
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL, J.] 403

precedent, is dictated by a wisdom which is for all time. 'It hath A
been well said' declared Lord Coke, 'interest reipubliae ut sit finis
litium - 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 B
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 C
should be influenced by no technical considerations ofform, but
by matter of substance within the limits allowed by law. "
(Emphasis supplied)

In support of his submission, the learned counsel for respondent no. D
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 resjudicata, strongly relied on the decision of this Court in Sajjadanashin
Sayed MD. B.E. EDR. (D) by LRs. v. Musa Dadabhai Ummer & Ors., (2000]
3 sec 350. Paras 18 and 19 of the said judgment read:- E

"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 generally a matter
"directly and substantially" in issue but it does not mean that ifthe F
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 G
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 H
404 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A plaint, the written statement, the issues and the judgment to find
out if the matter was directly and substantially in issue [Jshwer
Singh v. Sarwan Singh, AIR (l 965) 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.
B
19. We have here to advert to another principle of caution referred
to by Mulla (p. I 05) :

"It is not to be, assumed that matters in respect of which issues have
c 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
D is whether the court considers the adjudication ofthe 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
E 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. I 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 ,.'
F the earlier proceeding. Hence, the bar of res judicata applies to the facts of
'
the present case.

In Vithal Yeshwant Jathar v. 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
G its decisions on more than one point - each of which by itself would be
sufficient for the ultimate decision - 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
H for the appellants in support of his submission that a 'finding' is a decision
COMMISSIONER OF ENDOWMENTS v. VITTAL RAO [PATIL, J.] 405

on an issue framed in a suit and not otherwise:- A
(1) Income-tax Officer, A-Ward, Sitapur v. Murlidhar Bhagwandas,
Lakhimpur Kheri, [ 1964] 6 SCR 411.

(2) Daffadar Bhagat Singh & Sons v. The Income-tax Officer, A-Ward,
Ferozepore, [1969] 1 SCR 828.
B

(3) C.J.T. Andhra Pradesh v. Mis. 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
c
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.
D
In view of the discussion made above on the point of resjudicata, 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 E
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 F
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.
G
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.

S.K.S. Appeal dismissed. H