In the present proceedings, which relate to the Rozas at all the three places, the Assistant Commissioner in his orders in Inquiry No.142/67 dated 26.7.68 accepted the preliminary objection of res judicata but the Joint Charity Commissioner, Gujarat in his order in Appeal No.85/68 dated 17.12.73 did number accept the plea before him, the plea was companyfined to the Rozas at Broach and Surat .
He set aside the order and remanded the matter for inquiry.
On this basis, the plaintiffs plea that the Sajjadanishin was misutilising the income was rejected by the District Judge and the judgment of the trial Judge dated 6.10.31 dismissing the suit filed under Section 92 of the Code of Civil Procedure was affirmed.
Thus the rejection of the plea of res judicata and the finding on merits so far as the Ahmedabad Roza was companycerned, became final.
This judgment of the learned District Judge is dated 21.11.38.
The Second appeal to the High Court was withdrawn.
In the application for special leave, the Privy Council refused the application inasmuch as the case was at a preliminary stage but said that the order was without prejudice to the presentation of a fresh petition for special leave after all the issues were determined.
Appeal No.80/31 filed by the plaintiffs was also dismissed and cross objections were allowed on 21.11.1938.
Later, the District Court took up the suit for decision on merits.
Civil Application No.32 of 1974 and by the Division Bench of the Gujarat High Court in First Appeal No.985 of 1976 on 27.7.85.
As the preliminary objection was negatived, a direction was given to the Assistant Commissioner to dispose of the Inquiry No.142 of 1967 on merits.
In the present appeal, the plea of res judicata is companyfined to the Rozas at Broach and Surat.
Later on, the District Judge renumbered the Petition 149/57 as CMA 352/67 and on merits held that the Ahmedabad Roza was a public trust, RFA 488/72 filed by the appellant was dismissed by the High Court on 4.5.73 and SLP CA No.1974/75 was dismissed for number prosecution by this Court.
While the upkeep of the Dargas, the holding of fairs and proper attention to the visitors to the Rozas was a primary legal obligation and a charge on the income of then villages, the Sajjadanishin, it was held, had full power over the surplus.
That was why in the present proceedings at the stage of Joint Charity Commissioner, the plea of res judicata was companyfined to the Rozas at Broach and Surat.
On the preliminary issues, the District Court gave a judgment on 18.7.1935 against the plaintiff and dismissed the suit.
The preliminary objection was that the present proceedings initiated by the deceased first respondent on 21.8.1967 before the Assistant Charity Commissioner, Surat Region under section 19 of the Bombay Public Trusts Act, 1950 to declare three Rozas situated at three places Ahmedabad, Broach and Surat were public trusts, were barred by res judicata in view of three decisions arrived at earlier one in 1931, another dated 19.1.1967 and a third one initiated in 1965.
The said order of the Joint Commissioner was affirmed on 30.9.76 by the learned Assistant Judge in Misc.
The High Court however held on 24.1.1938 that the charity was a public one companyered by Section 92 of the Code of Civil Procedure.
It was held that the Sajjadanishin had companyplete power of disposal over the surplus as he was number in the position of an ordinary trustee.
Aggrieved by the above said orders, the appellant who was respondent in the main Inquiry No.142/67 has filed this appeal and has raised the same plea of res judicata before us once again.
In the judgment of the District Court, we find that there were 8 points.
On these pleadings, a number of issues were framed of which two were treated as preliminary issues i whether the temple and the properties in suit were public charitable properties?
Points 1 to 7 related to the validity of appointment of the defendant and the nature of the office and the right to the surplus etc.
On those points, it was held that the appointment of the defendant as Sajjadanishin was valid and that the grant of the property was both for the Rozas and for the maintenance, presumably of Sajjadanishin and his family members.
JAGANNADHA RAO,J. LITTTTTTJ This appeal arises out of orders passed rejecting the preliminary objection raised by the appellant.
