M. B. SHAH, J. ( 1 ) * * * * ( 2 ) IN this appeal the only question which would require consideration is whether the suit is barred by res judicata in view of the decision in the previous civil suit filed by plaintiff No. 2. ( 3 ) THE learned advocate for the appellant vehemently submitted that the finding of the Courts below that the suit filed by the plaintiffs was barred by res judicata is on the face of it illegal because (1) Civil Court has no jurisdiction to decide whether plaintiffs were the trustees of the trust and that the trust was the owner of the suit property in view of sec. 80 of the Bombay Public Trusts Act. Therefore the decision of the Civil Court in previous suit is without jurisdiction; (2) the incidental finding given by the Court in the previous suit cannot be the basis of res judicata; (3) as the previous suit was dismissed on technical grounds as the necessary certificates from the Charity Commissioners office were not produced therefore there was no decision on merits. As against this the learned advocate for the respondents vehemently submitted that the decisions given by both the Courts below are legal. He submitted that the plaintiffs cannot be permitted to file fresh suit on the same cause of action ( 4 ) IN my view the finding given by the Courts below that the suit is barred by res judicata is on the face of it illegal. Section 79 of the Bombay Public Trusts Act 1950 provides as under:79 (1) Any question whether or not a trust exists 2nd such trust is a public trust or particular property is the property of such trust shall be decided by the Deputy of Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act. (2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as the case may be shall unless set aside by the decision of the Court on application or of the High Court in appeal be final and conclusiveunder sec. (2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as the case may be shall unless set aside by the decision of the Court on application or of the High Court in appeal be final and conclusiveunder sec. 80 of the Bombay Public Trusts Act 1950 Civil Court has no jurisdiction to decide or deal with any question which is by or under the Act required to be decided or dealt with by any officer or authority under the Act or in respect of which the decision or order of such officer of authority has been made final and conclusive. Under sec. 19 of the Act the Deputy or Assistant Charity. Commissioner is required to hold an inquiry in the prescribed manner for the purpose of ascertaining inter alia whether any property is the property of trust and the names and addressees of the trustees and manager of such trust. Under sec. 21 of the Act the Deputy or Assistant Charity Commissioner is required to make parties in the register kept under sec. 17 in accordance with the findings recorded by him under sec. 20 or if appeals or applications are made 85 provided by the Act in accordance with the final decision of the competent authority. Sub-section (2) of sec. 21 provides that the entries so made shall subject to the provisions of the Act and subject to any change recorded under the provisions of the Act be final and conclusive. In view of the provisions of secs. 19 20 21 19 Nc 80 of the Bombay Public Trusts Act Civil Court would have no jurisdiction to deal with and decide whether the plaintiffs were trustees of the aforesaid trust or that the suit property was the property of such trust. Therefore the decision given by the Civil Court in regular Civil Suit No. 113 of 1973 deciding the following two issues is without jurisdiction and the findings given by the Civil Court would be void: (1) Whether plaintiffs are trustees of Shri Jam-Jodhpur Sthanakvasi Vardhaman Vanik Trust ? Therefore the decision given by the Civil Court in regular Civil Suit No. 113 of 1973 deciding the following two issues is without jurisdiction and the findings given by the Civil Court would be void: (1) Whether plaintiffs are trustees of Shri Jam-Jodhpur Sthanakvasi Vardhaman Vanik Trust ? (2) Whether the property mentioned at para twelve of the plaint belongs to plaintiff No. 2 ?this Court in the case of Kuberbhai Shivdas v. Mahant Purshottamdas Kalyandas 2 GLR 564 and in the case of Ishwarlal Nanalal v. Ghanchi Chimanlal R. 1963 (4) ILR Gujarat 767 after considering the provisions of the Trusts Act held that the decisions given under the Act have the effect of a judgment in rem by virtue of secs. 50 70 to 72 and 79 and 80 of the Act the the jurisdiction of the Civil Court to decide whether properties belong to the public trust or not is barred that decision given by the Charity Commissioner is final and conclusive subject to the decision of the appellate or revision authority and is binding to the Civil Court The said decisions have been followed in the case of Sherasiya Saji Alavadi Momin v. State of Gujarat 1985 GLH 597 : (26 (1) GLR 513 ). in view of this settled position of law it cannot be said what the decision of the Civil Court in Regular Civil Suit No 113 of 1971 deciding that the plaintiffs are not trustees and the suit property is not trust property is without jurisdiction null and void. ( 5 ) ONCE it is held that the judgment in previous suit is without jurisdiction then it cannot be said that the present suit is barred by res judicata or principles of res judicata. This position is clear from the following decisions: (1) Bai Shakri v. Bapusinghji Takhatsinhji AIR 1958 Bombay 30. (2) Bhikhabhai v. J. V. Vyas 4 GLR 873. (3) Gandabhai Jinabhai v. Dalpatbhai 23 GLR 531. Further even if any incidental finding is given by the Court while deciding the previous suit it cannot be said that the said finding is binding in the next suit or it can be the basis of res judicata. ( 6 ) THE Supreme Court in Pragdasji v. Ishwarlalbhai AIR 1952 Supreme Court 143 has held as under:a suit under sec. ( 6 ) THE Supreme Court in Pragdasji v. Ishwarlalbhai AIR 1952 Supreme Court 143 has held as under:a suit under sec. 92 Civil Procedure Code is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provisions of sec. 92 Civil Procedure Code. As was observed by the Privy Council in Abdul Rahim v. Md. Barkat All 55 Ind. App. 96 P. C. a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of sec. 92 Civil Procedure Code. In the case before us the prayers made in the plaint are undoubtedly appropriate to the terms of sec. 92 and the suit proceeded on the footing that the j defendant who was alleged to be the trustee in respect of a public trust was guilty of breach of trust. The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the Court but when the Courts found concurrently on the evidence adduced by the parties that the allegations of breach of trust were not made out and as it was not the case of the plaintiffs that any direction of the Court was necessary for proper administration of the trust the very foundation of a suit under sec. 92 Civil Procedure Code became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs. It has been argued by the learned counsel for the respondents that even if the plaintiffs failed to prove the other allegations made in the plaint they did succeed in proving that the properties were public and charitable trust properties a fact which the defendant denied. In these circumstances there was nothing wrong for the Court to give the plaintiffs a lesser relief than what they actually claimed. The reply to this is that in a suit framed under sec. 92 Civil Procedure Code the only reliefs which the plaintiff can claim and the Court can grant are those enumerated specially in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust a declara tion that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it but when the case of the plaintiff fails for want of a cause of action there is no warrant for giving him a declara tory relief under the provision of sec. 92 Civil Procedure Code. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. The result is that in our opinion the decision of the High Court should stand but the decree and the concluding portion of the judgment passed by the trial Court and affirmed by the High Court on appeal shall direct a dismissal of the plaintiffs suit merely without its being made subject to any declaration as to the character of the properties. To this extent the appeal is allowed and the final decree modified ( 7 ) IN the case of Gangabai v. Chhabubai AIR 1982 Supreme Court 20 the Supreme Court has held as under:it seems to us that when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the Court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. It has long been held that a question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised. Therefore the incidental finding of the Court in the previous suit that plaintiffs of that suit had failed to produce any evidence to prove that they were trustees and the trust was the owner of the disputed land would not be the basis of holding that the present suit is barred by res Judicata. ( 8 ) FURTHER if the previous suit is not decided on merits and if the cause of action is not determined but the Court has dismissed the suit merely on technical grounds then on the basis of the said finding it cannot be said that the subsequent suit is barred by res judicata and that the fact that the Court has passed a decree dismissing the suit does not alter the character of the determination. In the case of (Firm) Sonlal Hansraj v. Sadashiv Dasaras AIR 1937 Nagpur 146 the Court has held that for the operation of the principle of res judicata it is not enough that the former suit has been heard and determined but the cause of action must be heard and determined. In that case the suit was dismissed on the ground that the firm was unregistered and the second suit was instituted on the same cause of action after registration of the firm. The Court held that the suit was not barred by res judicata as the subject matter of the previous suit was not determined. In that case the suit was dismissed on the ground that the firm was unregistered and the second suit was instituted on the same cause of action after registration of the firm. The Court held that the suit was not barred by res judicata as the subject matter of the previous suit was not determined. The Court has relied upon the following passages from the Law of Estoppel by Everest and Strode:in order to create an estoppel the adjudication itself must be a final one and the matter itself must not only have been determined but controverted as well. The rule in Chancery was that an order dismissing an action was a bar to a fresh action for the same matter if the dismissal was upon hearing and was not in terms directed to be without prejudice and if the Court determined that the plaintiff had no title to the relief sought; so that in pleading a former suit as a bar it was not sufficient to show that the bill was dismissed: but you must plead further that which will show that the same matter in dispute in the subsequent suit was res judicata in the first and in para 686 of Caspersz on Estoppel Edn. 4 it is stated; it is not enough that the former suit has been heard and determined. The cause of action must be heard and determined. Again there is to be found in the same paragraph the observations of Phear J. in 21 WR 105. It seems to be clear then that the objection to a suit on the ground of multifariousness or misjoinder of causes of action is an objection to the hearing of the suit and if it prevails at whatever time it has the effect of preventing a determination. . . . . . . . . . . . . . . . . . the fact that the Court has In form passed a decree dismissing the suit does not alter character of the determination. ( 9 ) IN the case of Sheodan Singh v. Daryao Kunwar AIR 1966 Supreme Court 1332 the Court has held that it is the Court which decides the former suit whose jurisdiction to try the subsequent suit has to be considered and not the Court in which the former suit may have been filed. ( 9 ) IN the case of Sheodan Singh v. Daryao Kunwar AIR 1966 Supreme Court 1332 the Court has held that it is the Court which decides the former suit whose jurisdiction to try the subsequent suit has to be considered and not the Court in which the former suit may have been filed. The Court held that if the decision in the former suit was not on merits then it cannot be said that there would be a bar of res judicata. In paragraph (13) the Court has held as under;reliance in this connection is placed on the well settled principle that in order that a matter may be said to have been heard and finally decided the decision in the former suit must have been on the merits. Where for example the former suit vas dismissed by the trial Court for want of jurisdiction or for default of plaintiffs appearance or on the ground of non joinder of parties or misjoinder of parties or multifariousness or on the ground that the suit was badly framed or on the ground of a technical mistake or for failure on the part of than plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree or for failure to furnish security for costs or on the ground of improper Valuation or for failure to pay additional court fee on a point which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on merits would not be res judicata in a subsequent suit. (Underlines added)AS stated above in the previous civil suit the Court had no jurisdiction to decide the question whether the suit property was trust property that plaintiffs were trustees or not and that the suit was dismissed on the ground that the plaintiffs have failed to produce the necessary certificates of the competent authority under the Bombay Public Trusts Act. The suit was dismissed solely on technical ground of non-production of necessary certificates or necessary decision of the authorities under the Bombay Public Trusts Act. The suit was dismissed solely on technical ground of non-production of necessary certificates or necessary decision of the authorities under the Bombay Public Trusts Act. Hence it cannot be said that the trial Court decided the suit on merits and it cannot be the basis for dismissing the present suit on the ground of res judicata. ( 10 ) THE learned advocate for the appellants relied on the decision in the case of Subramania v. Vaithilinga AIR 1931 Madras 641 wherein the Madras High Court has held that if the trustees are negligent in filing written statement and defending the previous suit and the suit is decreed against them because of gross negligence on the part of the then trustees in not putting forward a valid defence the said decision is not binding on the subsequent trustees. The learned advocate for the appellants however heavily relied upon the following observations in that judgment:as already stated it is clear that if the then trustee had defended O. S. No. 550 of 1920 no decree would have been passed in it against the temple. On principle I do not see any reason why an idol of a temple should not be treated in the same manner as a minor with respect to the gross negligence of the part of the trustee in not defending the suit the trustee representing its interests just in the same way as the guardian represents the interests of the minor. An idol can act only through the trustee of the temple. As Mr. Muthukrishna Aiyar has printed oat it is possible in certain respects to distinguish the position of a trustee representing an idol from the position of a guardian of a minor but on broad principle I cannot had any satisfactory ground for treating the case of a trustee representing an idol in a suit differently from the case of a guardian representing a minor In Vadlamudi Sastrulu v. Venkataseshayya AIR 1928 Mad. 614 the learned Judges assumed without deciding the question that the idol is in the position of a minor but held that there was no negligence in the course of the previous litigation in that cast. In the absence of specific authority on the point I am inclined to hold that the principle under lying the decision in Dada Sahib s. Gajraj Singh (AIR 19z5 Mad. In the absence of specific authority on the point I am inclined to hold that the principle under lying the decision in Dada Sahib s. Gajraj Singh (AIR 19z5 Mad. 204) may well be applied to the facts of the present case and I would therefore hold that the decision in O. S. No. 550 of 1920 would not operate as res judicata in the present suit. However in my view because of the aforesaid discussion it is not necessary to deal with this aspect in this appeal. ( 11 ) AS the suit was dismissed solely on the ground that it is barred by res judicata and the other issues were decided in favour of the plaintiffs against which no appeal or cross-objections were filed by the defendants before the District Court the said findings on the said issues were not challenged by the learned advocate for the defendants but however he submitted that for passing appropriate decree in the matter the matter may be remanded to the District Court. In my view this submission is just and reasonable. ( 12 ) HENCE the appeal is partly allowed. The judgment and decree passed by the District Judge Jamnagar in Regular Civil Appeal No. 76 of 1975 is set aside. The District Court is directed to pass appropriate decree after hearing both the sides and after taking into consideration the finding of the that Court and the finding of this Court on the issue of res Judicata within four months from the date of the receipt of the writ of this Court after issuing notices to both the sides. There will be no order regarding costs all throughout. Appeal partly allowed. .