1. This is a defendants' appeal arising out of a suit brought by the plaintiffs for mandatory injunction. The suit was dismissed by the trial Court but has been decreed by the lower appellate Court.
2. It is common ground that the plaintiffs are the present zamindars of village Baheriki in the district of Saharanpur and the defendant 1 is in the occupation of a house as their riaya. The plaintiffs' case as laid in the plaint is that instigated by the other Mohammaden residents of the village, defendant 1 has built a kachcha chabutra inside his sehan with the intention of eventually converting the site into a mosque and that in furtherance of that design other Mohammadens of that locality are contemplating to use it as a mosque after putting up pacca construction on the site. The plaintiffs object to the land, which belongs to them, being used in the manner desired by the defendants. They impleaded defendant 1, and five other persons in a representative capacity so as to make the suit one directed against the entire Mohammaden population of the village. The relief claimed by the plaintiffs is that a perpetual injunction be issued, restraining the defendants from constructing any mosque or chabutra intended for prayers being offered thereon. The plaintiffs further claim a relief of demolition of the existing chabutra. The defence was that the village originally belonged to certain Mohammaden zamindars whose rights were sold in execution of a decree and purchased by the plaintiffs about 15 years before the suit and that She chabutra in question has been in existence for a considerable length of time and has been used as a mosque by the Mohammaden inhabitants of the village. In the lower Courts, it appears to have been assumed that the decision of the case turns on the finding as regards the length of time during which the chabutra in question has been in existence.
3. The trial Court found, referring to the plan of the locality prepared in an earlier case, that the chabutra has been in existence since 1905. On that finding that Court dismissed the plaintiffs' suit. On appeal by the plaintiffs the lower appellate Court held on a review of the entire evidence in the case that the chabutra has not been in existence as alleged by the defendants and that it has been constructed recently. Having arrived at that finding the lower appellate Court decreed the plaintiffs' suit straightaway without pausing to consider whether all the reliefs claimed by the plaintiffs could be granted on the above finding. In second appeal it is argued that the finding of the lower appellate Court on the main question of act is vitiated by the erroneous view taken by it of the admissibility and value of a certain map prepared by a Commissioner appointed by the Court in Suit No. 170 of 1905. Even if the view taken by the lower appellate Court on the question of admissibility of this piece of evidence is technically erroneous, I do not think its finding is vitiated. That finding is based on an elaborate consideration of the evidence oral and documentary produced by both the parties and I must accept it as conclusive in second appeal. Accordingly I must proceed on the assumption that the chabutra in dispute is of recent origin. It seems to me however that the age of the chabutra is not so material as has been considered by both the Courts below. If it is as old as alleged by the defendants it cannot be considered to be a mosque or any thing like it, in the absence of evidence showing dedication by the rightful owner of the site. It is not alleged that the former proprietors had dedicated the site of the chabutra for use as a mosque. Defendant 1 who is only a riaya entitled to occupy it for residential purposes has no right whatever to dedicate it for use as a mosque by the Mohammaden population of the village.
4. Assuming that he allowed the Mohammaden residents of the locality to occasionally say prayers on the chabutra, it will not on that account assume the characteristics of a mosque or create any right in the Mohammaden residents of the village to use it as a mosque. The proprietor's right to the site remained unaffected by any use which the occupant of the house himself made and allowed others to make of the portion of its site. In this view even if the facts alleged by the defendants had been found in their favour their case would not have been appreciably improved. On the other hand the chabutra being admittedly in the courtyard of defendant 1 it is not open to the plaintiff zamindars to object to his putting up a kachcha chabutra for all domestic purposes including the use of it as a sitting place saying prayers and the like. It is equally open to defendant 1 to allow his guests or visitors in the ordinary course to use the chabutra for the aforesaid purposes, but defendant 1 has no right to throw it open to all the Mohammaden residents of the locality for saying their prayers and to use it for all practical purposes as a mosque. There can be no objection to defendant 1 converting a kachcha chabutra into a pacca one so long as he does not act in a manner inconsistent with his rights as a riaya entitled to occupy the site for residential purposes. No significance can be attached to the chabutra being a kachcha or pacca. It seems to me that on the finding that the chabutra has been recently built the lower appellate Court was not justified in ordering its demolition. Having regard to the rights of the parties as stated above and to the circumstances of the case the relief to which the plaintiffs are entitled is as follows:
It is declared that the chabutra in dispute is not dedicated property but is part and parcel of defendant l's residential house. Defendant 1 is at liberty to maintain it as part of his house and to use it for all domestic and residential purposes including the private right of the members of his family, his visitors and guests to say prayers thereon. Defendant 1 is not at liberty to throw it open for use by the Mohammadans at large, as a place for offering prayers. A permanent injunction is issued restraining defendant 1 from allowing the chabutra to be used by the Mohammadens of the villags as a mosque or a place for offering prayers. An injunction is also issued restraining the other defendants from resorting to the chabutra for saying prayers except as guests or casual visitors of defendant 1 on social occasions.
5. The result is that the appeal is partly allowed, the decree of the lower appellate Court directing the demolition of the chabutra is set aside and a decree for injunction in the above terms is passed in modification of the decree of the lower appellate Court. In all the circumstances of the case I direct the parties to pay their own costs throughout.