JUDGMENT FAZL ALI, J. :— These appeals, by certificate granted by the High Court, arise out of a common judgment and will be dealt with by one judgment. The appeals have had a chequered career resulting from a highly contested litigation spreading over a century and a half. A review of the historical background of the case reveals a rather sad story and an unfortunate saga of a perpetual strife and struggle, disputes and differences between the two sections of the Muslim community of village Vijayapuram (situated in Tiruvarur District in the State of Madras) setting up diverse rights and rival claims over the property which was essentially a religious property originating from a fountain of purity flowing from the life and teachings of a celebrated saint who was the original founder of the property. Property essentially dedicated to God appears to have been used for mundane purposes which evoked loud protests from another section of the Mahomedan community who wanted to protect the public character of the trust property and this had led to several suits in various courts. 2. The most unfortunate part of the drama long in process is that the Courts before whom the disputes came up for decision handed down judgments which were not strictly in accordance with the shariat and the essential tenets of the Mahomedan Law which encouraged the parties to plunge themselves into a long drawn and unnecessary litigation, until the High Court of Madras in one of the litigations had to point out that the only remedy to put an end to the disputes was to invoke the provisions of Section 92 of the Code of Civil Procedure and this is what appears to have been done in the action out of which these appeals arise. 3. With this pragmatic preface we now proceed to consider the facts of the case which are by no means short and simple, but present highly complicated and complex features. It appears that some time towards the beginning of the 18th Century Syed Sultan Makhdoom Sahib a Sufi saint was residing at Vijayapuram who by his pious and saintly life attracted disciples not only belonging to the Mahomedan community but also some non-Muslims of that village. The saint was held in great respect and reverence by the Hindus and Muslims alike which is evidenced by the fact of a sale deed Ext. The saint was held in great respect and reverence by the Hindus and Muslims alike which is evidenced by the fact of a sale deed Ext. B-1 dated May 12, 1730 which forms the starting point of the existence of the properties in suit which have been the subject matter of such a long drawn litigation. Exhibit B-1 shows that a part of the site where the properties in dispute are situated and which was a punja land was sold to the saint Syed Sultan Magdoom Sahib by 1574 Thirumalia Kolandia Pillai who was a resident of village Vijayapuram. The sale deed conferred absolute rights on the saint with powers to alienate by way of gift, exchange and sale etc. The sale deed also mentioned that there were no encumbrances in respect of the land, and if any were found, the vendor would discharge the same. The saint died and about sixty years later another sale deed was executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who appears to be a descendant of the saint and an ancestor of the Labbais who are the defendants in the present suit. This sale deed also appears to be in respect of the land which forms part of the disputed properties. The sale deed also appears to be in respect of the land which forms part of the disputed properties. The sale deed was executed on May 22, 1797. This sale deed (Ext. B-2) gives an indication that it consisted of lands and gardens and could be used as a graveyard also. Thus the properties in dispute are situated on the lands sold to the ancestors of the Labbais by the two sale deeds referred to above. It may be pertinent to note here that in the second sale deed Rowther Syed Uddin who is ancestor of one of the plaintiffs was a witness. In course of time the saint and the descendants were buried on the lands in dispute and a Dargah was set up which was managed by the descendants of the saint. Several years later, the Mahomedans of the village realised the necessity of having a mosque as no mosque existed in the village and inspired by this laudable objective, the Rowthers approached Masthen Ali Khader Sahib for permission to build a mosque on a part of the land in dispute. Several years later, the Mahomedans of the village realised the necessity of having a mosque as no mosque existed in the village and inspired by this laudable objective, the Rowthers approached Masthen Ali Khader Sahib for permission to build a mosque on a part of the land in dispute. The permission having been granted, an agreement was executed in favour of Masthan Ali Khader Sahib which is Ext. B-4 and forms the sheet-anchor of the dedication said to have been made by Masthan Ali Khader Sahib for the purpose of a mosque. Thereafter in course of time certain additional constructions in the shape of a platform, few rooms a water tank, which form adjuncts to the mosque, were added obviously without any objection from the Labbais. The vacant land appears to have been used as a grave-yard where members of the Muslim community buried their dead as a matter of right on payment of certain fees or charges to the defendants or their ancestors. Subsequently the defendants constructed a few shops on a part of the grave-yard which alienated the sympathies of the Muslims particularly the Rowther community who regarded the construction of the shops as desecration of the grave-yard and accordingly a number of suits were filed for demolition of the shops. The defendants, however, claimed the entire properties as their private properties excepting the prayer hall which was admittedly used as a mosque. There also the defendants claimed that they had a right to manage the same and to lead the congregation at prayers. The present suit has been filed by the Rowthers who were the other section of the Muslim community and whose ancestors are alleged to have built the mosque and other constructions with the previous permission of the ancestors of the defendants. This suit was brought in a representative capacity under O. 1 Rule 8 Code of Civil Procedure after obtaining the sanction of the Advocate-General under Section 92 of the Code of Civil Procedure. According to the allegations made by the plaintiffs, there were three types of properties which were wakf properties of a public and charitable nature dedicated by the ancestors of the defendants. These properties consisted of : (1) a huge vacant piece of land consisting of two parts which is popularly known as burial-ground. According to the allegations made by the plaintiffs, there were three types of properties which were wakf properties of a public and charitable nature dedicated by the ancestors of the defendants. These properties consisted of : (1) a huge vacant piece of land consisting of two parts which is popularly known as burial-ground. On the western part of the burial-ground some shops had been constructed by the defendants and all attempts made by the plaintiffs or their ancestors to get the shops demolished had so far failed; (2) towards the western portion of the grave-yard there is a tomb of the saint Syed Sultan Makhdoom Sahib over which a Dargah has been built; (3) a prayer hall adjacent to the Dargah which is known as the mosque or Pallivasal. There is also a covered platform, a pond and a thatched shed which appear to be adjuncts to the mosque. 1575 According to the plaintiffs all the three properties were public trusts dedicated to God and the defendants could not claim any right of ownership over them. The plaintiffs alleged that these properties were dedicated for public worship and were used for offering prayers since a very long time and had become wakfs by immemorial user. It was further alleged that property No. (1) was a public grave-yard and the defendants wrongly claimed it to be their private grave-yard by refusing permission to the plaintiffs to bury their dead. It was also alleged that the defendants had been mismanaging the wakf properties as a result of which the mosque had fallen in a state of disrepairs and the grave-yard was being converted into shops and other places so as to lose its origin. Lastly the plaintiffs also contended that the Dargah was also a public property dedicated to God and the defendants had no individual or personal interest in the Dargah. The plaintiffs, therefore, filed the present suit for removing the defendants who were de facto managers and had been guilty of acts of mismanagement and misfeasance and for framing a scheme to administer the trust properties. The suit was contested by defendants 1, 2, 4 and 6 who contended, inter alia, that the entire property was acquired by their ancestor Syed Sultan Makhdoom Sahib who died four years after the purchase and was buried on a part of the land along with the members of his family. The suit was contested by defendants 1, 2, 4 and 6 who contended, inter alia, that the entire property was acquired by their ancestor Syed Sultan Makhdoom Sahib who died four years after the purchase and was buried on a part of the land along with the members of his family. The defendants admitted that members of the Rowther community were allowed to offer their prayers in a raised platform in front of the Dargah over which a prayer hall was built by them. The defendants, however, claimed that as the Rowthers were allowed to offer the prayers by leave and licence of the founder, the prayer hall was no a public mosque but a private property of the defendants. Even if the mosque was public property the adjuncts thereto were the personal property of the defendants and were not used for any religious purpose. Similarly with respect to the grave-yard it was alleged that this was a private grave-yard and the defendants were entitled to charge pit fees and other charges from those Muslims who wanted to bury their dead. They further contended that the shops had been built by the ancestors of the defendants in order to increase the revenue of the Dargah and for the proper administration thereof. Lastly the defendants pleaded that the present suit by the plaintiffs was clearly barred by res judicata in view of the previous judgments of the Courts pronouncing upon the right of the parties against the plaintiffs. 4. These were the facts pleaded by the parties in original suits Nos. 9 of 1956 and 71 f 1957 heard by the Court of Sub-Judge Mayuram. It appears that one suit being O.S. No. 9 of 1956 was filed in the Court of the Sub-Judge Mayuram, whereas suit No. 71 of 1957 was originally filed in the Court of the District Munsiff, Tiruvarur as O.S. No. 16 of 1957 but the same was transferred by the District Munsiff to the District Munsiffs Court at Nagapattinam and was later transferred to the Sub-Judge, Mayuram to be tried along with O.S. No. 9 of 1956. The trial Court consolidated the two suits and decided them by one common judgment. The trial Court consolidated the two suits and decided them by one common judgment. It might also be mentioned that the present action was preceded by proceedings under Section 145 of the Code of Criminal Procedure wherein the possession of the properties in dispute was found to be with the defendants. In Suit No. 9 of 1956 which was filed in the Court of Sub-Judge, Mayuram, the Court framed the following issues : "1. Are the Pallivasal, Durgah, the burial grounds, prayer hall etc. set out in Schedule A public trusts or are they private trusts belonging to the Labbais? 2. Is the suit for framing a scheme not competent? 2 (a) If not, is it necessary or desirable to frame a scheme and if so to what trusts? 3. Is this suit barred by the decision in O.S. No. 304 of 1898; District Munsiffs Court, Tiruvarur, and O. S. No. 8 of 1937, Sub Court. Tiruvarur? 1576 4. Is this suit barred under Section 55 of the Muslim Wakf Act of 1954? 5. Is the Imamship and Muthavalli hereditary in the family of Labbais and the defendants? 6. Is the 2nd defendant a Imam and Muthavalli? 7. To what reliefs, if any, are the parties entitled?" In suit No. 71 of 1957 where sub-stantially the same pleas were raised, the following issues were struck by the Court. "1. Whether suit, as framed, prayed for declaration that the order in M.C. 9 of 1955 and Cr. R. P. Nos. 784/5 are void, is sustainable in law? 2. Whether the suit properties are properties of public trust as claimed by the plaintiffs? 3. Whether the Rowther community of Vijayapuram are entitled to be in management and possession of the suit properties as claimed in the plaint? 4. Whether the pleas, covered by Issues 2 and 3 above are not barred by res judicata by the findings in the suits and appeals in O.S. No. 167 of 1893, O.S. No. 304 of 1898 and O.S. No. 8 of 1937 referred to in the written statement? 5. Whether it is open to the plaintiffs to plead that they are in possession and management in spite of orders in M.C. No. 9 of 1955 and Cr. R. P. No. 784 of 1955 and C. C. No. 120 of 1955, Sub Divisional Magistrate, Nagapattinam? 6. Whether the suit for declaration is maintainable? 7. 5. Whether it is open to the plaintiffs to plead that they are in possession and management in spite of orders in M.C. No. 9 of 1955 and Cr. R. P. No. 784 of 1955 and C. C. No. 120 of 1955, Sub Divisional Magistrate, Nagapattinam? 6. Whether the suit for declaration is maintainable? 7. Whether the suit is not properly valued for the purposes of court-fees and jurisdiction? 8. To what relief are the plaintiffs entitled?" The trial Court dismissed the plaintiffs suits deciding the main issues against the plaintiffs. Thereafter the plaintiffs of both the suits filed appeals before the High Court of Madras and the High Court reversed the decision of the trial Court in many respects and accepted the plaintiffs case with respect to the mosque, its adjuncts and the grave-yard but found that so far as the Dargah was concerned it was the private property of the defendants and the plaintiffs had no cause of action with respect to the same. The High Court accordingly decreed the plaintiffs suits with respect to the mosque, its adjuncts and the grave-yard and remanded the case to the trial Court for framing a scheme for administration of the trust properties. The suit regarding the Dargah was however, dismissed. But the plaintiffs and the defendants have filed appeals by certificate to this Court. Appeal No 2026 of 1968 is by the plaintiffs regarding the adverse decision given by the High Court in respect of the Dargah, while appeal No. 1223 of 1968 which is the main appeal is by the defendants 1, 2, 4 and 6 against whom the High Court decreed the suits with respect to the mosque, its adjuncts and the grave-yard. Civil Appeal No. 1224 of 1968 has been filed against the decision of the Madras High Court which arises out of original suit No. 71 of 1957. 5. We have heard the learned counsel for the parties. Mr. Civil Appeal No. 1224 of 1968 has been filed against the decision of the Madras High Court which arises out of original suit No. 71 of 1957. 5. We have heard the learned counsel for the parties. Mr. Krishnamoorthy Iyer appearing for the appellants has raised the following points before us : (1) that the history of the litigation would clearly show that the previous judgment between the parties operated as res judicata and the High Court was wrong in not giving effect to the plea of res judicata which would have put a final seal to the disputes between the parties; (2) that there is clear evidence of the manner in which the properties appear to have been dedicated and there is no clear declaration of dedication for the purpose of the mosque and the prayers offered in the mosque were only by leave and licence of the founder, and there was no public wakf of the mosque at all which was only a private mosque or a family mosque of the defendants. The learned counsel submitted that the High Court has completely overlooked this legal aspect of the matter; (3) that even if the mosque was wakf of a public character the defendants possessed the hereditary right to administer and govern the 1577 same and in these circumstances the plaintiffs had no right to dislodge them by asking the Court to frame a scheme. On a parity of reasoning it was contended that the grave-yard was also not a public wakf but the family grave-yard of the defendants. (4) that the suit was clearly barred by Section 55 (2) of the Muslim Wakf Act, 1954; and (5) that Section 92 of the Code of Civil Procedure had no application to the present case inasmuch as the defendants were not trustees within the meaning of Section 92 of the Code. 6. Mr. Asoke Sen appearing for the plaintiffs/respondents conceded that he would not press his claim so far as the Dargah was concerned which has rightly been held as the private property of the defendants. On the other points, Mr. Sen repelled the arguments of Mr. 6. Mr. Asoke Sen appearing for the plaintiffs/respondents conceded that he would not press his claim so far as the Dargah was concerned which has rightly been held as the private property of the defendants. On the other points, Mr. Sen repelled the arguments of Mr. Iyer by submitting that the plea of res judicata was totally unfounded inasmuch as the public character of the wakf never came up for decision before the Courts which decided the previous litigation, where the question was confined only to certain rights claimed by the defendants with respect to leading the congregation and administration and management of the mosque. It was further contended that there is overwhelming evidence to show that the grave-yard was a public trust by immemorial user and the defendants had no right to construct the shops thereon. On the question of the dedication it was argued that under the Mahomedan Law an oral dedication is enough to create a wakf and Ext. B-3 contains an intrinsic evidence of a clear dedication of the property for the purpose of the mosque along with its adjuncts, which were in fact used for the purposes connected with the performance of the prayers. Lastly it was submitted that Section 55 of the Muslim Wakf Act had no application because at the time when the suit was brought no Board was constituted under the Act. As regards Section 92 of the Code of Civil Procedure it was submitted that the defendants were undoubtedly trustees de son tort and would, therefore, fall within the ambit of Section 92 of the Code of Civil Procedure and as the trial Court had itself held that the defendants were guilty of gross negligence, the provisions of Section 92 of the Code of Civil Procedure could be clearly invoked. 7. In the light of these arguments of the parties and the history of the case, we would now proceed to decide the points in controversy in this case. We would first deal with the question of res judicata. In support of this plea the defendants have relied on Exts. B-5 to B-9, B-12, B-16, B-28, B-30, B-31 and B-73 in support of their case that these judgments constitute and operate as res judicata, and particularly judgments given in those suits which were brought in respective capacity under Order 1, Rule 8 of the Code of Civil Procedure. In support of this plea the defendants have relied on Exts. B-5 to B-9, B-12, B-16, B-28, B-30, B-31 and B-73 in support of their case that these judgments constitute and operate as res judicata, and particularly judgments given in those suits which were brought in respective capacity under Order 1, Rule 8 of the Code of Civil Procedure. Before we analyse these judgments, it may be necessary to mention that before a plea of res judicata can be given effect, the following conditions must be proved - (1) that the litigation parties must be the same. (2) that the subject-matter of the suit also must be identical; (3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction. 8. In the instant case according to the plaintiffs/respondents the identity of the subject-matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. Unfortunately however in this case the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved 1578 merely be recitals of the allegations mentioned in the judgment. We would also like to note what the High Court has said on the question of res judicata. The High Court found that although the litigation between the parties lasted for a pretty long time it was never decided whether all or any of the suit properties constituted a public trust. We would also like to note what the High Court has said on the question of res judicata. The High Court found that although the litigation between the parties lasted for a pretty long time it was never decided whether all or any of the suit properties constituted a public trust. Both the parties appear to have taken extreme stands but even despite the fact that the previous judgments contained an incidental finding that the mosque was a public property and so was the burial ground, the effect of these findings was nullified in 1939 when the High Court held that even if the properties in dispute were the exclusive properties of the Labbais, this expression was not meant to indicate that they were their private properties. This, in our opinion, clearly shows that the public character of the wakf or of the mosque was never in issue. The High Court on this point found as follows : "We are therefore, of the view, that the issue as to whether the properties constituted a public trust having been never raised and decided between the parties in any of the prior suits, O.S. No. 9 of 1956 on that question was not barred by res judicata. The finding of the Court below in this regard is affirmed." The trial Court had also negatived the plea of res judicata taken by the defendants. 9. With this background we would now proceed to analyse the purport and the effect of the previous judgments relied upon by the appellants. The first litigation between the parties started as far back as 1893 when the Labbais filed a suit against the defendants in the Court of the District Munsif, Tiruvarur being O. S. No. 167 of 1893. This suit was decided by the judgment Ext. B-5 D/- 26-3-1895. A perusal of the judgment will clearly disclose that the suit was confined to two points. In the first place the plaintiffs claimed certain rights for performance of ceremonies in the properties and to a share in the income accrued to the mosque from the disciples. Secondly, so far as the grave-yard was concerned the claim was confined to receiving pit fees for the burials. In the first place the plaintiffs claimed certain rights for performance of ceremonies in the properties and to a share in the income accrued to the mosque from the disciples. Secondly, so far as the grave-yard was concerned the claim was confined to receiving pit fees for the burials. Thus the Court had decreed the plaintiffs suit for injunction holding as follows : "The result is that the plaintiffs will have a permanent injunction restraining the defendants from interfering with the plaintiffs right of officiating at the Khutba, the daily prayers and the Janaza and in reciting Mowlud, Khattm, Koran, and Fathas and, in the absence of a Modin, the Yangu (call for prayers) and of lighting the Pailivasal and doing such other duties as pertain to the Modin (it being open to the Levvai plaintiffs to do the duties of the Moden when they please), during their turn of office of four months (5th to 8th months of Hijiri both inclusive) subject of course to their conducting themselves agreeably to the rules regulating their conduct as Lavvais. Considering all the circumstances of the case, I think it only right that the plaintiffs should have their costs from the contending Rowther defendants in proportion to their success." It is, therefore clear that the Munsif did not at all decide either the public character of the mosque or the mode and manner or even the effect of the dedication of the site for the purpose of the mosque or the grave-yard. It is true that the plaintiffs had put forward the claim of hereditary owners of the mosque but that was only in a limited sense, namely, for the purpose of the management of the mosque. Once the dedication was complete, the property passed from the owner to God and it never returns to the owner and, therefore, the question of the mosque being private can never arise. In fact we might mention that the very concept of a private mosque is wholly foreign to the dedication of a mosque for public purpose under the Mahomedan Law. In these circumstances it is obvious, therefore, that as the public character of the wakf of the grave-yard was not in issue in that suit, the subject-matter of the judgment was not identical with that of the 1579 present suit. In these circumstances, therefore, this judgment cannot operate as res judicata. 10. In these circumstances it is obvious, therefore, that as the public character of the wakf of the grave-yard was not in issue in that suit, the subject-matter of the judgment was not identical with that of the 1579 present suit. In these circumstances, therefore, this judgment cannot operate as res judicata. 10. Exhibit B-6 dated March 16, 1897 is the judgment in appeal from the aforesaid decision where at p. 394 of the Paper Book the Subordinate Judge held that the Pallivasal or the prayer hall is public property and not descendible to the plaintiffs of that suit. Thus if at all there was any finding regarding the mosque it was against the defendants. In these circumstances, therefore, we are satisfied that this judgment does not appear to be of any assistance to the defendants. 11. Exhibit B-7 dated December 21, 1899 is the judgment given by the District Munsif, Tiruvarur in O.S. No. 304 of 1898. This was a suit filed by the members of the Rowther community regarding their right to offer prayers and bury the dead in the mosque compound and for managing the affairs of the mosque. In that case also while the Dargah was found to be the private property of the Labbais i.e. the defendants, no finding was given regarding the public nature of the mosque although it was held that the Rowthers had a right to make repairs and manage the mosque and to offer prayers. On the vexed question regarding the public nature of the mosque, the Court refrained from making any observation and stated as follows : "I therefore studiously refrain from giving any decision on that vexed question about which the Lavvais appeared to be particular. If their rights, if any, in that matter is invaded by the Rowthers, their proper remedy would be to seek compensation and get their rights declared against the community once for all in a suit properly framed for that purpose." In fact it seems to us that although that judgment cannot operate as res judicata, the finding given by the learned District Munsif was wrong on a point of law. Once the founder dedicates the site for the purpose of building a mosque and prayers are offered in the mosque the site and the mosque become wakf properties and the ownership of the founder is completely extinguished. Once the founder dedicates the site for the purpose of building a mosque and prayers are offered in the mosque the site and the mosque become wakf properties and the ownership of the founder is completely extinguished. Under the Mahomedan Law no Muslim can be denied the right to offer prayers in a mosque to whatever section or creed he may belong. Thus that judgment also does not appear to be of any use to the defendants. 12. Exhibit B-8 is the judgment. For Citation : AIR 1976 SC 1569 = 1976 3 SCR 721