1. The facts found by the Court below are as fellows:
For a long time past the defendant and his ancestors before him have hoisted a flag bearing the arms or emblems of a Muhammadan taint, named Madari, at a fair which is held annually at Makanpur near Jhansi, and they have been in the habit of taking the flag to weddings in the town of Jhansi and appropriating any offerings that were made to it, For 20 years or so, before 1908, one Madari hoisted in Jhansi a flag bearing the arms or emblems of another saint, named Muin-ud-din Chishti. He used to take the flag to weddings and appropriate any offerings that were made to the flag. In 1908, Madari made over this flag to the plaintiff and purported to transfer to him the right to take the offerings made to it. In June, 1908, the plaintiff planted his flag at the house of one Grappa, where a wedding was about to take place. The defendant pulled the flag down and took it away. Hence the present suit which was instituted in July, 1908. The plaintiff claimed (1) a declaration that he is the owner of the flag of Muin-ud-Din Chishti which is hoisted at Jhansi every year and eventually taken to the saint's tomb at Ajmere, and that he is entitled to the offerings that are made to it ; (2) a decree for the return of the flag or for Rs. 10 the price of it ; (3) damages, and (4) costs and other relief.
2. The first Court made a decree in terms of (1) and (2) reliefs, but awarded no damages on the ground that none had been proved. That decree was confirmed by the lower appellate Court. In second appeal it is contended that the suit is not one of a Civil nature and that an alleged right to receive charity cannot be declared by a Civil Court.
3. The hoisting of a flag bearing the emblems of Muin-ud-din Chishti is an innovation compared with the hoisting of Madari's flag at Makanpur which seems to have been going on for generations, and the defendant seems to think that the transfer of Muin-ud-din Chishti's flag to the plaintiff was a good opportunity for an attempt to do away with it.
4. Apart from Police and Municipal Regulations it is quite clear that the plaintiff or any one else who is so minded may hoist a flag bearing the emblems of Muin-ud-din Chishti or any other saint, take it to weddings and appropriate any offerings that may be made to it and is entitled to do so without interference on the part of the defendants. But the plaintiff is not, nor would any one else be, entitled to a declaration that he alone is entitled to hoist the flag of this or that saint. If authority is required for these propositions I would refer to Mohammad Abdul Hafiz v. Latif Husain 24 C. 524 and Chunu Dat Vyas v. Babu Nandan 7 A.L.J. 529 : 6 Ind. Cas. 223.
5. The defendant in pulling down the plaintiff's flag and taking it away clearly committed a wrong for which the plaintiff is entitled to seek redress in the Civil Court. The plaintiff is certainly entitled to a decree for the return of the flag or payment of the value of it, and this he has obtained. He was also entitled to damages and the first Court would have awarded damages, if any had, in its opinion, been proved. Here I may say that I am not satisfied that the first Court was right in finding that no damage had been proved, but as there is no appeal by the plaintiff, I need not consider the matter further.
6. The only question is whether the plaintiff is entitled to the declaration which has been made. There can be little doubt that the plaintiff's object in bringing this suit was to establish his right to hoist the flag of Muin-ud-din Chishti without interference on the part of the defendant. No one else has so far as we know, ever attempted to hoist a rival flag bearing the emblems of this particular saint, and, therefore, I do not think that the plaintiff ever intended to claim the exclusive right of hoisting such a flag. He wishes only to protect himself against the defendant for the future. He is claiming a right to do what any one else is entitled to do without interference from others. It does not appear whether the plaintiff hoists his flag in a public or in private places. He probably hoists it in both. The defendant has no right to interfere with the flag whether it is hoisted in a public or in a private place. In my opinion such cases as Chunnu Dat Vyas v. Babu Nandan 7 A.L.J. 529 : 6 Ind. Cas. 223 have no application to the present case. In the case named and in the cases which it followed, the plaintiff claimed an exclusive right of a kind of which the Civil Courts cannot take cognizance unless it is connected with an office, a shrine, temple, or other sacred spot. In the present case as in the case of Mohammad Abdul Hafiz v. Latif Husain 24 C. 524 the plaintiff is merely vindicating a common law right and claims no exclusive privilege. Possibly an injunction would have been more appropriate than a declaration, hut I do not think that I should interfere on such a ground at this stage of the case.
7. The form in which the declaration has been made is, however, open to objection. It might be construed as declaring an exclusive privilege. I, therefore, set it aside and in lieu of it I declare as in the Calcutta case that the plaintiff is entitled to hoist a flag of Muin-ud-din Chishti in Jhansi, take it where he pleases and appropriate any offerings that may be made to it without interference on the part of the defendant. With this modification I dismiss the appeal with costs.