(Prayer: Appeal (disposed of 21-3-1947) against the decree of the District Court of East Godavari at Rajahmundry dated 2-2-45 in O.S. 24 of 1944.)

The Chief Justice :The plaintiff is the appellant in this appeal which relates to a mosque known as the Royal Mosque in Rajahmundry. In respect of the mosque, a scheme was framed under S. 92 of the Code of Civil Procedure and decreed in 1930 by the learned Subordinate Judges Court in O.S. No. 46 of 1924, and the decree was upheld on appeal. The scheme vested the properties of the Royal Mosque and the control and administration of its affairs in a Board of trustees. The appellant was not a party to the scheme suit.

When the trustees sought to obtain possession of the mosque, in pursuance of the scheme decree, they were obstructed by one Sheikh Mowla and his tenant, a man named Hanumantha Rao, who claimed the right to occupy one room. The trustees instituted O.S. No. 23 of 1940 in the same Court against Hanumantha Rao for possession of the room and, ultimately, on appeal to this Court, possession was decreed. When the trustees applied for possession, they were obstructed by the present appellant. In E.A. No. 256 of 1943 for removal of the obstruction it was held that the appellant was a stranger to the mosque and removal of the obstruction was ordered. The appellant then instituted the suit out of which this appeal arises. It was dismissed by the learned District Judge of East Godavari at Rajahmundry, and this is the plaintiffs appeal against the learned Judges decision.

The appellant sued to set aside the order for removal of his obstruction, for a declaration of rights of permanent control, superintendence and governance over the affairs of the mosque and for possession of its properties.

The appellant alleges that he is the hereditary Khaji and Sajja-da-Nishin of the mosque; the property had been in uninterrupted, continuous and unobstructed possession and enjoyment of himself and his predecessors for more than the statutory period; and they have been discharging their duties and obligations required by Mohammedan law. He further alleges that the mosque and its properties were endowed by ancient Mogul rulers and their successor. His Excellency the Nizam of Hyderabad, continues to exercise spiritual sovereignty over the endowment.

The appellants claims are based upon a number of documents which are photo static or certified copies of which were produced in the lower CourtEx. P. 2(a) dated 1137 Hijri (corresponding to A.D. 1722) by which Emperor Mohammed Shaha granted to one Hifiz Abdul Razzack the village of Vella by way of inam in perpetuity; Ex. P. 2 dated 1145 Hijri (correspond in to A.D. 1730) by which Emperor Mohammed Shaha granted to one Mohammed Hafi the office of Kazi of the Sirkar empowering him to administer various judicial and other functions; Ex. P. 1 dated 1st April 1860, Razinama decree passed by the District Civil C ourt of Rajahmundry; and Ex. P. 4 dated the 23rd February 1860, Copy of an extract from the register of inams in the village of Korumilli in the taluk of Ramachandrapur in the district of Godavari.

In his evidence the appellant said that his son furnished him with these documents, by whom they were obtained; and he claims that he is a descendant of those in whose favour the grants and the decree were made and that he has inherited the rights which he seeks to have declared in his favour in the suit.

In his judgment the learned Judge in the Court below observed that the decree in the scheme suit is binding upon every one until it is set aside, and in face of that decree the appellant could not successfully assert the claims preferred in his plaint, in other words, the decree in the scheme suit is, or has the effect of, a judgment in rem and it prevents any one, whether a party to the suit in which the decree was passed or not, from asserting any rights vested in him which conflict with or attack the scheme.

Having made the observations referred to, the learned Judge did not investigate or consider the appellants claim and the documents upon which he based his suit but dismissed it, and consequently there has been no adjudication upon the merits. If it could be found that the learned Judge was wrong regarding the effect of the decree in the scheme suit, the matter would have to be remanded back for investigation of the facts and claims upon their merits. The question which requires decision, at the moment, is whether the learned Judge was correct in arriving at the conclusion that the appellant could not, in the light of the decree in the scheme suit, voice his claims before the Court.

In Ramados v. R. Hanumantha Rao (36 Mad. 364), during the pendency of a scheme suit, the guardian of a person applied to be made a party to it; the application was dismissed and scheme was framed and decreed. Thereafter the person on whose behalf the application had been made by his guardian during minority sued to assert personal rights regarding the temple which had been the subject matter of the scheme suit. It was held that a scheme framed under S. 539 of the Code of 1882 (corresponding to S. 92 of the Code of 1908) is binding on all, whether worshippers or not, including even a person who might have claimed a hereditary trusteeship and have brought a suit to enforce such relief before the settlement of the scheme; a decree framing a scheme is a bar to a suit by such a person, even where his application to be made a party to the scheme suit has been rejected. At page 369 in the judgment of Sir Arnold White C.J. and Phillips J. it was observed that this would seem to preclude suits between parties to establish a private right which, if established, would interfere with a charitable scheme settled by Court and later ordinarily every person can be granted the relief to which he is entitled, but this principle cannot override the claims of the public and a charitable scheme settled by Court must be considered to have been settled for the benefit of the public. That decision was expressed in 1911, some 36 years ago, and is one pronounced by a Division Bench of this Court.

Ramadoss case (36 Mad. 364) was referred to with approval and followed in Sakharam Daji v. Ganu Raghu (45 Bom. 683), Suraj Gir v. Bramh Narain (A.I.R. 1946 All. 148) [LQ/AllHC/1945/100] , Vaithilinga v. Ramalingam Pillai (6 L.W. 9), and Mulukutla Ramamurthi v. Chillara Baskarayya (50 I.C. 58). Those decisions were pronounced by Division Benches except Mulukutla Ramamurthis case (50 I.C. 58), which was a decision by a single judge. In the case before the Allahabad High Court it would seem that some exception might arise, according to the observations at page 149 of the judgment, but only when the property which has been the subject of the scheme is not trust property at all. That is not the position in the present instance.

Since the decision in Ramadoss case (36 Mad. 364), which, as stated, was given some 36 years ago, it has been referred to with approval and followed not only in this Court but also in two other High Courts, Bombay and Allahabad. No authority was cited in which the correctness of that decision has been challenged and wherever cited it would appear to have been accepted as correct. After the time which has elapsed since the principles were enunciated in Ramadoss case (36 Mad. 364), and in the light of the decision being followed wherever cited, it seems too late now to question its correctness.

In my view, therefore, it should be followed in the present instance; and applying that case to the appeal now before us, it follows that the appellant is not entitled, by the suit out of which this appeal arises, to assert the claims which he makes. The learned Judge in the Court below was correct in dismissing the proceedings before him. This appeal must be dismissed with costs.

Patanjali Sastri, J:I agree. The appellants Counsel urged that the decision in Ramados v. Hanumantha Rao (36 Mad. 364), should be reconsidered as the remedy suggested therein, viz., inducing the Collector to ask for modification of the Courts scheme by taking action under S. 92 of the Code of Civil Procedure, will in practice prove illusory, and the appellant would be left without any effective means of establishing his alleged private right of control and superintendence over the mosque and its endowments. This may well be so, but as pointed out by my Lord, the decision in Ramadoss case (36 Mad. 364) has stood unchallenged for all these years and has been followed in this and some of the other High Courts in India and it seems too late now to question its authority.