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2002 DIGILAW 61 (PAT)

Radhika Devi v. State Of Bihar

2002-01-15

NAGENDRA RAI, R.S.GARG

body2002
Judgment 1. This appeal is directed against the order dated 13.7.2001 passed in CWJC No. 7337 of 2001 by a learned Single Judge of this Court dismissing the writ application filed by the appellants challenging the order dated 1.5.2001 passed by the District Judge, Chapra in Misc. Appeal No. 77 of 2000 (appended as Annexure-6 to the writ application) dismissing the appeal under Section 36-B(4) of the Wakf Act, 1954 (hereinafter referred to as the Act) against the order of the Collector, Saran, dated 9.6.2000 (annexed as Annexure-5 to the writ application) by which the learned Collector has passed the order for recovery of the wakf property from the possession of the appellants in exercise of power under Section 36 B of the Act. 2. The facts not in dispute, are that Late Gulzar Hussain executed a deed in respect of several properties in the year 1918. Respondent No. 4 is his son. Two sons of late Gulzar Hussain on 22.7.1950 executed a registered usufructuary mortgage in favour of Ram Briksha Sah father- in-law of appellant No. 1 and grand father of appellants no. 2 to 7. The said Ram Briksha Sah died leaving behind his two sons, namely Laxman Prasad, husband of appellant No. 1 and grand father of appellants No. 2 to 7 and Bharat Prasad. On 26.1.1983, the Secretary, Bihar State Sunni Wakf Board filed an application under Sections 36-A and 42 of the Act for release of the lands on the assertion of the same being in unauthorised occupation of the heirs of mortgagee, namely, Ram Briksha Sah, and to deliver possession to the Mutawalli. In the said case, the Opposite parties were Bharat Prasad and Laxman Prasad. Laxman Prasad died and proceeding continued against Bharat Prasad. The Collector to whom, the matter had been referred by the Board under Section 36-B of the Act decided the matter on 24.2.1987 and declared the heirs of Ram Briksha Sah to be in unauthorised possession and directed them to deliver possession to the Wakf Board. Bharat Prasad and others filed two Misc. Appeals No. 4 and 7 of 1987 before the District Judge under Section 36-B(4) of the Act which was ultimately heard by 4th Addl. District Judge who by common order dated 1.9,1990 dismissed the said appeals. Two Civil revisions filed before this Court against the said order were also dismissed on 26.9.1995. Bharat Prasad and others filed two Misc. Appeals No. 4 and 7 of 1987 before the District Judge under Section 36-B(4) of the Act which was ultimately heard by 4th Addl. District Judge who by common order dated 1.9,1990 dismissed the said appeals. Two Civil revisions filed before this Court against the said order were also dismissed on 26.9.1995. The SLP filed against the said order of this Court before the Apex Court was also unsuccessful in the sense that they were also dismissed on 12.8.1996. In the proceeding which was initiated for eviction of the heirs of Ram Briksh Sah, the appellants filed an intervention application before the Collector which was rejected on 4.10.1996/27.1.1997. They challenged the aforesaid order by filing a writ application before this Court being CWJC No. 6127 of 1997 and this Court by order dated 29.4.1998 quashed the said order and directed the Collector to pass a fresh order after hearing the parties in accordance with law with reference to the materials on record. Thereafter, the Collector heard the parties and dismissed the claim of the appellants by order dated 9.6.2000 against which they preferred an appeal before the District Judge which was also dismissed. The writ application, as stated above was also dismissed upholding the aforesaid order. 3. Thus, admitted position is that a proceeding under Sections 36 B and 42 of the Act was initiated against the heirs of Ram Briksha Sah and Bharat Prasad, one of the sons of Ram Briksha Sah contested the matter and lost up to the Apex Court. The appellants are none else but the widow and sons Laxman Prasad, another son of aforesaid Ram Briksha Prasad. 4. The authorities under the Act as well as the learned Single Judge have rejected the claim of the appellants solely on the ground that the question raised by them has already been gone into in earlier proceeding which was initiated against some of the heirs of Ram Briksha Sah and as such that question cannot be gone into again at the instance of remaining heirs of Ram Briksha Sah. 5. Learned counsel appearing for the appellants assailed the judgment of the learned Single Judge on the following grounds. Firstly, he submitted that the appellants were not party in the earlier proceeding and as such any order or judgment rendered in the earlier proceeding will not bind them. 5. Learned counsel appearing for the appellants assailed the judgment of the learned Single Judge on the following grounds. Firstly, he submitted that the appellants were not party in the earlier proceeding and as such any order or judgment rendered in the earlier proceeding will not bind them. In this connection, he relied upon a judgment in the case of N. Jayaram Reddi and another V/s.The Revenue Divisional Officer and Land Acquisition Officer, Kurnool, reported in AIR 1979 Supreme Court, 1393. Secondly, he submitted that the property in question is not a wakf property and as such no order can be passed under the aforesaid Act either by the Collector or by the District Judge in appeal and in support of his submission that the property is not a wakf property, he relied upon judgments of this Court in the case of Begum Asma Jafar Imam and another V/s.The State of Bihar and others, reported in AIR 1975 Patna 48 and in the case of Rakhakishan and another V/s. State of Rajasthan and others, reported in AIR 1967 Rajasthan 1, Thirdly, he submitted that the question as to whether the property is a wakf property or not can be decided by the Civil Court in view of the amended provision of Section 27 of the Act and the authority exercising the power under the aforesaid Act has no power to decide the matter. In this connection, he submitted that the matter has already been agitated before the Civil Court and the First Appeal is pending in this Court. Lastly, he submitted that as Section 36 A and 36 B of Act has been inserted in 1984, they will not apply to the transaction which has taken place prior to incorporation of the aforesaid provision. 6. Learned counsel appearing for the respondents supported the aforesaid order passed by the authorities and the learned Single Judge and they have not added anything new submission. 7. The question whether the other points raised on behalf of the appellants will be gone into in this appeal or not depends upon the decision on the first point urged on behalf of the appellants. As such we propose to dispose of the first point itself. 8. The mortgagee was Ram Briksha Sah. The application was filed for eviction against the heirs of Ram Briksha Sah and others. These appellants were not party in the same. As such we propose to dispose of the first point itself. 8. The mortgagee was Ram Briksha Sah. The application was filed for eviction against the heirs of Ram Briksha Sah and others. These appellants were not party in the same. Law is well settled that if a person is not a party to the suit, the judgment rendered is not binding on him, but this proposition is not an abstract proposition of law. Its applicability depends upon the facts and circumstances of case. When matter has been fought by some of the heirs of the original claimant then the judgment rendered in that proceeding is binding on the remaining heirs also unless it is proved that the earlier litigation was not a bonafide one in the sense that the claimant has connived and fraud has been played upon the remaining heirs. Such is not the case here. In pur view, once the matter has been fought and decided up to the Supreme Court, then the same cannot be reagitated by the remaining heirs on the ground that they were not party in the earlier proceeding. If this course of action will be allowed, then there will be no end of the litigation. We are of the view that once the matter has been decided where some of heirs were already on record, then the same is binding on the other heirs and they cannot be allowed to reagitate the matter. If we come to different conclusion then there would be two inconsistent orders in the same matters against the same set of facts. 9. Thus, we are of the view that the learned Single Judge rightly rejected the reopening of the matter at the instance of the appellants. As we are of the view that the question cannot be reopened, we will not go into the other question whether the property is a wakf property or not, but we would like to make it clear that the decision which has been rendered and which is binding on the appellants, is the decision which was within the scope of Sections 36B and 42 of the Act. If the authorities have no power to decide the question of the nature of the trust as urged by the appellants, then there is nothing to debar them to challenge the same before the competent Civil Court. If the authorities have no power to decide the question of the nature of the trust as urged by the appellants, then there is nothing to debar them to challenge the same before the competent Civil Court. According to own assertion of the appellants they have already moved before the Civil Court regarding the nature of the wakf property. The Civil Court may decide the question in accordance with law. 10. With the aforesaid observation, the appeal is dismissed.