- (1.) This appeal arises out of orders passed rejecting the preliminary objection raised by the appellant. 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.
(2.) 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 not accept the plea (before him, the plea was confined to the Rozas at Broach and Surat). He set aside the order and remanded the matter for inquiry. The said order of the joint Commissioner was affirmed on 30-9-76 by the learned Assistant Judge in Misc. 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. 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 present appeal, the plea of res judicata is confined to the Rozas at Broach and Surat.
(3.) As the contention of res judicata raised by the appellant concerns three earlier proceedings, we shall have to refer to them. But we may also point out that in certain other proceedings relied upon by the respondents a view has already been taken that principle of res judicata does not apply. These other proceedings were those started in 1954 under Section 19 of the Bombay Act (Appl. 289/54) by one Ali Miya Manmadiya and others, in connection with the Ahmedabad Roza. There a similar plea of res judicata was raised by the appellant Sayed Mohumed Baquir El-Edroos and the said plea was rejected by the Deputy Commissioner on 23-4-56 and that decision was confirmed by the Charity Commissioner in Appeal 125/56 on 29-5-57, reversed by the District Judge in 149/57 on 29-12-1959 - but the plea of res judicata was once again rejected by a learned single Judge of the Gujarat High Court on 24-4-67 in the case reported in Ali Miya v. Sayed Mohammed, (1968) 9 Guj LR 1002 : (AIR 1968 Gujarat 257) and that decision of the learned single Judge was affirmed on 14-9-70 by a Division Bench in Sayed Mohammed v. Ali Miya, (1972) 13 Guj LR 285. In fact, in the present proceedings, the Joint Commissioner, the Assistant Judge and the High Court have all applied the ratio of those two decisions relating to Ahmedabad Roza - on the question of res judicata - in relation to the Broach and Surat Rozas as well. It was held that on the same ratio, that the earlier orders relied upon by the appellant declaring the Broach and Surat Rozas to be private trusts and not public trusts, were not res judicata.;