Abhay M. Naik, J:

1. This Civil Revision is directed against the order dated 25-9- 2008 passed by the Court of Additional District Judge, Ambah, District Morena, in Civil Suit No. 3A/08 rejecting thereby an application under Order 7, Rule 11 of the Civil Procedure Code based on the plea of res judicata.

2. In order to establish the applicability of plea of res judicata, it is necessary to describe the earlier litigations between the parties. Earlier, there were various litigations between the parties which are described herein :

(i) There situates the disputed immovable property comprised in Survey No. 1676 Min 1 and 1676 Min 2 at Kasba Ambah which includes constructed property. Civil Suit No. 5A/01 (Previously Civil Suit No. 12A/97, 69A/98) was instituted by Pt. Ramprasad Pujari Dharmik Trust Dharmashala and six others against Ramnivas Sharma (defendant/petitioner) in respect of the suit property for declaration that suit property was a trust having been created by virtue of registered trust deed dated 4-3-1982 by Deviprasad and that the plaintiffs are its trustees. Permanent injunction was also sought restraining the defendants from running school in the suit property and from changing its nature. Copy of plaint is on record as Annexure P-3. Permission from the Court for the suit was obtained under section 92 of Civil Procedure Code vide order dated 15-9-1997 which is on record as Annexure P-5.

(ii) Civil Suit No. 6A/01 was instituted by defendant/ petitioner claiming himself to be the adopted son of Deviprasad against various defendants including plaintiffs No. 2 to 7 of Civil Suit No. 5A/01 with various allegations. The alleged trust was disowned. Competence of Deviprasad to create trust was also disputed. Declaration was sought that the suit property is a personal property of the plaintiff and defendants are liable to be restrained from interfering into it. Copy of plaint is on record as Annexure P-4.

(iii) Civil Suit No. 5A/01 and 6A/01 were consolidated and were decided by a common judgment and decree dated 19-9-2005 by the Court of District Judge, Morena. Civil Suit No. 5A/01 was dismissed whereas Civil Suit No. 6A/01 was decreed in favour of the plaintiff i.e. defendant/petitioner. Consequently, the suit property was held to be a personal property of the defendant/petitioner who was found to be the adopted son of Deviprasad. It was not found to be a trust property. Copy of the judgment and decree dated 19-9-2005 is on record as Annexure P-6.

(iv) First Appeal No. 565/05 was submitted by defendants of Civil Suit No. 5A/01. A compromise was entered into before this Court between the parties vide dated 17-10-2006. According to the compromise, plaintiffs of Civil Suit No. 5A/01 admitted the ownership of the defendant/petitioner vide Annexure P-7. Consequently, the appeal was dismissed as having been rendered infructuous in view of the compromise as revealed in Annexure P-8.

(v) A review petition was preferred by present respondents No. 1 to 3 disputing illegality of the compromise which was registered as MCC No. 499/07 which was dismissed on 13-11-2007 vide Annexure P-9 with an observation that remedy to file separate suit is available which may be resorted to by the revisionists.

(vi) Pursuant to the order contained in Annexure P-9; plaintiffs/non- petitioners No. 1 to 6 instituted Civil Suit No. 3A/08 against the defendant/ petitioner and respondents No. 7 to 11 for declaration of title and perpetual injunction with allegations that the suit property belonged to Deviprasad @ Deviram whose pedigree is as follows:

Deviprasad executed a registered trust deed dated 4-3-1982 creating thereby a trust in the name of Pt. Ramprasad Pujari Dharmik Trust. Suit property was dedicated to the said trust as Dharmshala. In May, 2007, defendant/petitioner tried to alienate the suit property asserting his own title. Plaintiffs collected information when they came to know that in the consolidated proceedings of Civil Suit No. 5A/01 and 6A/01 it was found by the District Judge that trust was created by Deviprasad in respect of the suit property for the purpose of Dharmshala vide registered trust deed dated 4-3-1982. However, in F.A.565/05, a compromise was submitted in a fraudulent and collusive manner in order to give undue benefit to the defendant/petitioner and consequently, the appeal was withdrawn on 15- 11-2006. It is pleaded in the plaint that the said decision was challenged by the plaintiffs/non-petitioners No. 1 to 6 in MCC No. 499/07 wherein a liberty was granted to institute a Civil Suit to challenge the validity of compromise and consequent dismissal. In exercise of that liberty Civil Suit No. 3A/08 has been instituted with allegations that Deviprasad had purchased the half share of Lakshmibai widow of Bhagwandas vide registered sale deed dated 30-12-1965 and was thus competent to execute the registered trust deed. The sale deed was suppressed fraudulently and collusively with the result that Deviprasad was not found competent vide Annexure P-6. Similarly, it has been pleaded that defendant is not the adopted son of deceased Deviprasad and had no personal right, title or interest in the suit property. Despite this, appeal was got dismissed fraudulently and collusively.

Plaintiffs claimed the following reliefs:

(i) Suit property may be declared a public property having been owned and occupied by the public at large and the Collector, Morena, may be declared as its Manager. Suit property may be directed to be maintained as Dharmshala for public charitable purpose.

(ii) Judgment and decree passed in Civil Suit No. 5A/01 and 6A/01 may be declared null and ineffective on account of having been obtained fraudulently and collusively and it may be declared that the defendant/petitioner has no personal title or possession over the suit property.

(iii) Registered sale deeds dated 10-1-2007, 16-3-2007 and 26-3-2007 executed by defendant/petitioner in favour of remaining defendants may be declared null and void conferring no title on the alleged purchasers.

(iv) Defendants may be permanently restrained from causing damage to the suit property by sale, transfer, demolition or otherwise.

3. Defendant/petitioner submitted an application under Order 7, Rule 11 Civil Procedure Code with allegations that plaintiffs did not obtain permission under sections 91, 92 of Civil Procedure Code. Since the suit between the parties has already finally been disposed of by the High Court, present (Civil Suit No. 3A/08) is not maintainable. This application was dismissed by the learned Trial Judge vide order dated 18-3-2008 as revealed in Annexure P-10.

Aggrieved by it, defendant/petitioner preferred C.R. No. 65/08 which was disposed of by this Court with liberty to him to file an application for dismissal of suit under Order 7, Rule 11, Civil Procedure Code by raising the plea of res judicata.

4. Thereafter, the defendant/petitioner submitted a fresh application under Order 7, Rule 11, Civil Procedure Code (Annexure P-12) that in view of the earlier judgment and decree dated 19-9-2005 (Annexure P-6) having been passed in Civil Suit No. 5A/01 and 6A/01, the present suit is hit by the principles of res judicata and the plaint is liable to be rejected under Order 7, Rule 11, Civil Procedure Code. Application was opposed. Learned Additional District Judge vide impugned order dated 25-9-2008 rejected it, hence, the present revision petition.

5. Shri H. D. Gupta & Shri S. B. Mishra, learned Senior Advocates appearing for rival parties made their respective submissions which have been considered in the light of the material on record.

6. Much emphasis has been put on the scope of section 92 of Civil Procedure Code while contending that the relief claimed by the plaintiffs is not covered by the said section in view of the decision of the Hon'ble Apex Court of India in the case of Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai and others, AIR 1952 SC 143. Following observation appears in paragraph 10 of the said decision:

"10.........in a suit framed under section 92, Civil Procedure Code, the only reliefs which the plaintiff can claim and the Court can grant are those enumerated specifically 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 declaration that the trust does not 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 declaratory relief under the provision of section 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..........

This revision is directed against an order rejecting thereby an application of the defendant/petitioner under Order 7, Rule 11 of the Civil Procedure Code based on the plea of res judicata. Aforementioned objection does not come up for consideration at the present stage in any manner, whatsoever. This being so, this Court without entering into the merits of the said objection declines to consider it in the present revision.

7. It has been contended on behalf of the revisionist that earlier suit bearing No. 5A/01 was instituted with a permission under section 92 of Civil Procedure Code. It is a suit in representative capacity akin to suit under Order 1, Rule 8, Civil Procedure Code. This being so, present civil suit is barred by principles of res judicata. Reliance for this purpose has been placed on a decision of Supreme Court of India in the case of Shiromani Gurdwara Parbandhak Committee v. Mahant Harnam Singh C. (Dead), M. N. Singh and others, (2003) 11 SCC 377, wherein earlier view expressed by the Apex Court in the case of R. Venugopala Naidu and others v. Venkatarayulu Naidu Charities and others, AIR 1990 SC 444, has been approved, para 9 of which is reproduced below :

"9. The legal position which emerges is that a suit under section 92 of the Code is a suit of a special nature for the protection of Public rights in the Public Trusts and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. The beneficiaries of the trust which may consist of public at large, may choose two or more persons amongst themselves for the purpose of filing a suit under section 92 of the Code and the suit-title in that event would show only their names as plaintiffs. Can we say that the persons whose names are on the suit-title are the only parties to the suit? The answer would be in the negative. The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit. A suit under section 92 of the Code is thus a representative suit and as such binds not only the parties named in the suit title but all those who are interested in the trust. It is for that reason that explanation VI to section I I of the Code constructively bars by res judicata the entire body of interested persons from re- agitating the matters directly and substantially in issue in an earlier suit under section 92 of the Code."

8. Division Bench of this Court in the case of Shyama Prasad Datta and ors. v. Arun Kumar Vasudeo and ors., I.L.R. (2010) M.P. 1588 has held that if a suit earlier filed by the trust has been decided, a person claiming through trust cannot be allowed to raise the same issue by virtue of the bar contained in section 11 of Civil Procedure Code.

Reliance has also been placed on behalf of the revisionist on paragraph 39 of the decision rendered by the Supreme Court of India in the case of Moran Mar Basselios Catholicos v. Thukalan Paulo Avira and others, AIR 1959 SC 31, which is reproduced below:

"39. For reasons stated above we have come to the conclusion and we hold that the case with which the plaintiffs have come to Court in the present suit is that the defendants had become heretics or aliens or had gone out of the Church by establishing a new church because of the specific acts and conduct imputed to the defendants in the present suit and that the charges founded on those specific acts and conduct are concluded by the final judgment (Ex.256) of the High Court of Travancore in the interpleader suit (O.S. No. 94 of 1088) which operates as 'res judicata'. The charge founded on the fact of non-payment of Ressissa, if it is not concluded as constructive 'res judicata' by the previous judgment must, on merits, and for reasons already stated, be found against the plaintiff-respondent. We are definitely of the opinion that the charges now sought to be relied upon as a fresh cause of action are not covered by the pleadings or the issues on which the parties went to trial, that some of them are pure afterthoughts and should not now be permitted to be raised and that at any rate most of them could and should have been put forward in the earlier suit (O.S.No. 94 of 1088) and that not having been done the same are barred by 'res judicata' or principles analogous thereto. We accordingly hold, in agreement with the trial Court, that it is no longer open to the plaintiff-respondent to re-agitate the question that the defendant -appellant had 'ipso facto' become heretic or alien or had gone out of the church and has in consequence lost his status as a member of the Church or his office as a trustee.

9. Plea of res judicata on the basis of dismissal of F.A. No. 565/05 by this Court vide order dated 15-11-2006 is not available to the revisionist because the said order is not on merits but is on the basis of compromise. Section 11 of Civil Procedure Code is not strictly applicable to the compromise decree as it applies in terms only to what has been heard and finally decided by the Court. This being so, a compromise decree does not operate as res judicata. I may successfully refer for this purpose on the following passage from the decision of Supreme Court of India in the case of Pulavarthi Venkata Subba Rao and others v. Valluri Jagannadha Rao (deceased) by his heirs and legal representatives, and others, AIR 1967 SC 591:

10.........The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide anything. Nor can it be said that a decision of the Court was implicit in it........

F.A.No. 565/05 was preferred by the persons interested in the trust, A compromise accepting the personal interest of opposite party to the detriment of or at the sacrifice of trust's interest cannot be said to be lawful under Order 23, Rule 3, Civil Procedure Code as has been observed in the cases of K. Meenakshi Ammal and another v. Commissioner, Hindu Religious and Charitable Endowments, Madras and others, AIR 1966 Madras 475 and Mohammad Idris Haider and others v. Mohammad Habibur Rahman, AIR 1948 Patna 97.

10. Now coming to the effect of judgment and decree passed by the Court of District Judge, Morena. vide Annexure P-6 as res judicata, it may be seen that the plaintiffs/respondents No. 1 to 6 have clearly pleaded that Deviprasad Pujari was found to have executed registered trust deed dated 4-3-1982 creating thereby the trust for the purpose of Dharmshala. Suit property was found to have been dedicated for the purpose of Dharrnshala. However, learned District Judge, Morena, found that half of the suit property belonged to Lakshmibai and this being so Deviprasad was not competent to execute the trust deed in respect of the entire property. Plaintiffs have pleaded that Laksmibai had sold her half share to Deviprasad vide registered sale-deed dated 30-12-1965 and accordingly Deviprasad was the exclusive owner of the suit property and was competent to execute the trust deed. They have further pleaded that the plaintiffs of Civil Suit No. 5A/01 deliberately suppressed the said registered sale-deed since they were in collusion with defendant/petitioner and thus allowed the latter to obtain a decree in his favour.

11. Section 44 of the Evidence Act enables a plaintiff to avoid the effect of res judicata by establishing fraud or collusion. This provision reads as under:

"Section 44. Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under sections 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion."

Hon'ble Apex Court in the case of A. V. Papayya Sastry and others v. Govt. of A. P. and others, (2007) 4 SCC 221, has observed as under :

"22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order by the first Court or by the final Court - has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings."

26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam..........

It has also been observed, in paragraph 15, by the Apex Court in the case of Hamza Haji v. State of Kerala and another, (2006) 7 SCC 416:

"15........Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a Court to consider and decide the question whether a prior adjudication is vitiated by fraud."

12. Admittedly, present plaintiffs were not parties to Civil Suit No. 5A/01 and they cannot be blamed for non-production of said registered sale deed. However, in order to avoid the rigour of section 11 of Civil Procedure Code they have every right to show that important document like registered sale deed dated 30-12-1965 was deliberately suppressed in fraudulent and collusive manner in order to extend undue benefit to defendant/petitioner. Division Bench of Allahabad High Court in the case of Ibne Hasan v. Smt. Hasina Bibi and others, AIR 1984 Allahabad 216, has observed :

"8. Section 40 of the Evidence Act even without using the terms 'Res judicata' refers to the consequences of res judicata. It is because of section 40 that judgment, which is relied on by a party in a subsequent suit in support of its plea of res judicata, becomes relevant and can be read in evidence. A previous judgment operates as res judicata between the parties to the earlier suit as also to persons claiming title through any such party. When Section 44 of the Evidence Act permits a party to a subsequent suit to prove that any of the ingredients of the said section is made out even in respect of a judgment which is relevant under section 40 there seems to be no escape from the conclusion that even such judgment, which would otherwise operate as res judicata and would not be possible to be avoided by

the parties to the suit in which such judgment was delivered or by persons claiming through any such party, can be avoided by them if any of the ingredients of section 44 is made out. In that event such judgment would not be relevant and cannot form the basis of the plea of res judicata......... 13. It cannot be overlooked that the plaintiffs submitted a review petition against dismissal of F.A.No. 565/05 on account of having been rendered infructuous in view of the compromise. Review petition was registered as MCC499/07 and was dismissed on 13-11-2007 with the following operative paragraph : "Accordingly, keeping in view the facts and circumstances of the case and taking note of the fact that petitioner has a remedy to file separate suit, I see no reason to interfere in the judgment and decree passed on the basis of compromise decree. Petitioner is at liberty to file separate suit in accordance with law. Accordingly, finding no error apparent on the face of record and finding no ground made out for review or recall of the order, application stands dismissed." It was clearly observed by this Court in the aforesaid order passed in MCC No. 499/07 that the petitioner has a remedy to file separate suit and accordingly the liberty was granted to him. This order was passed in presence of defendant/revisionist who could have objected to the grant of such liberty by raising the plea of res judicata. Suit instituted in exercise of liberty granted by this Court in MCC No. 499/07 cannot be said to be barred by the principles of res judicata in view of the law laid down by the Apex Court in the case of K. Sivaramaiah v. Rukmani Ammal, AIR 2004 SC 508. 14. This apart, the defendant/revisionist could have further challenged the order Annexure P-9 before superior Court. This, too, has not been preferred by him. 15. In view of the aforesaid discussion, this Court does not find any infirmity, more so, jurisdictional error in the impugned order within the meaning of section 115 of Civil Procedure Code. In the result, the Civil Revision being devoid of merits is hereby dismissed, however, with no order as to costs. Revision dismissed.