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Naubahar Singh and ors. Vs. Qadir Bux and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All753
AppellantNaubahar Singh and ors.
RespondentQadir Bux and ors.
Excerpt:
..... - they complained that the said right had been invaded in consequence of the act of some of the hindus of the village which has already been referred to. thus the question is not allowed to receive a calm consideration from a purely economic point of view, which is a safe and satisfactory criterion in the present day civilization. 184 it was observed by a bench of this court that it was in the highest degree desirable that the members of the different religious persuasions who are to be found in this country should, in the observance of their religious ceremony as well as in the exercise of their lawful rights, show respect for the feelings and sentiments of those belonging to different persuasion, and avoid anything calculated to irritate the religious susceptibility of any class of..........by hostile demonstrations on the part of the defendants, coupled with a denial of the said right, a suit for declaration of the right is maintainable under section 42, specific belief act. a declaratory suit is also maintainable for the due enjoyment of the 'property' belonging to the plaintiff which includes a cow. where the plaintiffs' right is denied by the defendants, who, as hindus, are interested in denying it, and the right in controversy is with reference to property belonging to the plaintiffs, section 42, specific belief act, at once comes into play. even the bare denial by a person who is interested to deny invests the plaintiff with a cause of action for a declaratory suit under section 42, specific relief act.22. reliance has been placed by the defendants on ori lal.....
Judgment:

Sen, J.

1. Rawana Shikarpur is a village in pargana Seohara in the district of Moradabad. It has a mixed population of Hindus and Mahomedans, the latter having the numerical superiority. The number of Hindus is about 250 and that of the Mahomedans about 1,500. The Mahomedans occupy a compact area in the village abadi and their residential quarters were apart from the portion inhabited by the Hindus.

2. Paucity in number does not however count as a factor indicating status, influence or prosperity. The village is owned by the Hindu proprietors Rani Phul Kumari, widow of Chowhdry Ranjit Singh. Phul Singh, Sagar Singh, Ram Kumar Singh and Munne Singh are some of the zamindars. No Mahomedan is a cosharer in the village. The zamindars realise house rent and bhet presents from the reyaya. They also receive manure. They also take begar or forced labour but do not realize any artisan's cess.

3. The relation between the Hindu and the Mahomedans appears to have been cordial till the close of 1923. About this time a certain amount of disquietude appears to have been caused in the minds of the Mahomedan inhabitants of the village by the inauguration of the Shudhi movement. The precise details of this phase of activity are not ascertainable from the record now before us, but the waves appear to have broken upon the Mahomedan population and roused it from its dogmatic slumber. As a protest and as a measure of retaliation Nanhe, son of Kallu, who is plaintiff 3 in this action slaughtered a cow on the 30th May 1924 on the occasion of the Akika or tonsure ceremony of his son. This provoked angry feeling amongst the Hindus Five of them, viz., Sipahi Lal, Lalman, Sher Singh, Shankar Singh and Mohan lodged a report at the police station and finally made a complaint in the criminal Court under Section 298, I.P.C. The complaint was after a summary enquiry rejected under Section 203, Criminal P.C. The defeat of the Hindus, however did not depress them. They determined upon preventing the slaughter of cows at any cost and 'showed their readiness to commit a breach of the peace.' A report was made at the police station by Mohan Chowkidar, Mukhi Ram constable and Sipahi Lal village headman that breach of the peace was imminent between the Hindu and Mahomedans of this village. Proceedings were initiated on the report of the Sub-Inspector under Section 107, Criminal P.C. As a result, 54 Mahomadens and 15 or 16 Hindus were bound over to keep the peace.

4. The present action was commenced by five Mahomedan residents of Rawana Shikarpur who are all Jolahas by caste. The suit was instituted on the 2nd February 1925. It was originally directed against 10 Hindus of this village but 12 more defendants were added by order dated 14th April 1925. The plaintiffs allege in effect that they had a right to slaughter cows within their own premises in the village as being articles of their daily food as also for Qurbani or sacrifice on the occasions of marriages and deaths in their families and for celebration of festivals such as the Iduzzuha. They claim this as a right belonging to them in their personal capacity as also as being members of the Mahomedan community which is enjoined by its religious texts to sacrifice cows as a matter of religious merit. They complained that the said right had been invaded in consequence of the act of some of the Hindus of the village which has already been referred to. It was suggested that the act in question was prompted by the co-operation of the Hindus of the village, who were jointly and severally responsible for the slaughter of kine being prevented in the village. It was contended that the Hindus had not only denied their right to slaughter cows but had

all along been offering obstruction and interference and showing threatening demeanours.

5. This compelled the Mahomedans to desist from slaughtering cows, as they were apprehensive that if they acted otherwise they were bound to be criminally prosecuted.

6. The plaintiffs allege that they with the rest of the Mahomedans of the village who did not join in the action had a common interest in the suit. They also aver that the cause of action alleged against the defendants was shared in common by the other Hindu residents of the village who had not been impleaded as defendants. They applied therefore for action being taken under Order 1, Rule 8, Civil P.C.

7. The reliefs claimed in the suit were not very happily worded, but there can be no real difficulty as to their nature and scope. These reliefs are:

'(a) It may be declared that the Mahomedans of mouza Rawana Shikarpur, pargana Seohara, Tahsil Dhampur, have a permanent right to make all sorts of slaughters including the slaughter of cows inside their houses and the places and the lands in their possession within the abadi of mouza Rawana Shikarpur on the basis of old custom and that if the custom is not proved then according to religion, statute and Mahomedan law, they have a permanent right to do so for their daily use and on the occasions of marriages, deaths and Iduzzuha and that the Hindu residents of mouza Rawana Shikarpur along with the defendants have no right to interfere with this right.'

(b) A perpetual injunction may be issued to all the Hindu residents of mouza Rawana Shikarpur along with the defendants restraining them from ever offering obstruction to the slaughter of animals of every kind including cow by any of the Mahomedan residents of mouza Rawana Shikarpur now or in future.

8. The suit was contested upon grounds which were common to all the defendants. It was contended that the plaintiffs had no cause of action for the suit, that the slaughter of cows in this village was in the nature of an innovation and was not supported by custom, that the entire village belonged to Hindu zamindars, that the plaintiffs and the other Mahomedan residents of the village were mere licensees of the lands, that they had no right to perform cow slaughter within the zamindari of the Hindus, against their religion and against their 'conscience' and that the reliefs sought by the plaintiffs were 'against law' and 'not fit to be granted.'

9. The suit appears to have stirred to their depths certain sections of the Hindus and Mahomedans alike in the District of Moradabad. This must have been abundantly manifest to the learned Munsif who prefaces his judgment with the following remarks:

This suit has created a lot of zeal and narrow communal feeling between the Hindus and Mahomedans of the village. The outside atmosphere is also surcharged for both to allow them a dispassionate thought on the subject, apart from religious bias. The Hindus have worked themselves up to such a high pitch that they regard cows as sacred and would prefer to shed human blood to save it from slaughter. Dabblers in politics of the country regard cows as an emblem of unity under which they hope to unite the fissiparous Hindus. On the other hand the Mohamedans are conscious of the hypersensibility of the Hindus on this point and take advantage of it. Thus the question is not allowed to receive a calm consideration from a purely economic point of view, which is a safe and satisfactory criterion in the present day civilization.

10. We are in general accord with the aforesaid observation though we may not be ready to subscribe to the language in which the same has found expression. In Shahbaz Khan v. Umraopuri [1908] 30 All. 181 at p. 184 it was observed by a Bench of this Court that it was in the highest degree desirable that the members of the different religious persuasions who are to be found in this country should, in the observance of their religious ceremony as well as in the exercise of their lawful rights, show respect for the feelings and sentiments of those belonging to different persuasion, and avoid anything calculated to irritate the religious susceptibility of any class of the community. In Mohammad Yahub v. Mangru Rai [1910] 7 I.C. 318, another Bench of this Court sounded a note of regret that more tolerance did not prevail. The principle which ought to animate the action of two communities placed side by side and whose destiny is intertwined in many respects by objects and ends is to live and let live. Reasonableness, tolerance and forbearance cannot be expected to thrive in an atmosphere of communal bickering and strife.

11. The arguments in this second appeal were closed on 3rd January. We did not proceed to judgment at once as we thought it desirable to give some time to the contestants to make up their differences upon reasonable lines. Attempts, if any, for a reasonable compromise appear to have failed. The differences continue just as they were at the inception of the action.

12. The Court of first instance found that it was satisfactorily proved from the evidence on the record that

animals including cows were never slaughtered in Rawana as a custom either for food or for sacrifice.

13. and that 'there was rather a negative custom of abstention,' It found however that the plaintiffs apart from custom had as Mahomedans a valid and legal right to slaughter cows and other animals for food and sacrifice. It repelled the contention of the defendants that the plaintiffs had no right to slaughter cows because they were mere licensees and not the owners of the house-sites which belonged exclusively to the Hindu zamindars:

License to live for generations must be presumed to permit all enjoyments of life by the licensee without restriction. Eating meat or beef is such a reasonable enjoyment of life and it does not per se injure the rights of others. If a man has a right to eat what he likes, it follows he has a right to procure it in a legitimate way.

14. We are of opinion that the law on this point has been correctly stated by the learned Munsif. And although his finding on the crucial issue to be noted presently has been reversed by the lower appellate Court, the judgment of Babu Brij Behari Lal merits our approbation as being on the whole and except on one point clear, consecutive and closely reasoned. He clearly erred in dismissing the plaintiff's suit upon the ground that on the facts alleged and proved, no cause of action was disclosed for a declaration of right within the purview of Section 42, Specific Relief Act. His judgment proceeds upon the ground that the defendants did not individually or collectively deny the right asserted by the plaintiffs, that even if they did, a bare denial of right was not actionable, that the slaughter of cows prohibited by an act of the executive and not by the act of the defendants and that the plaintiffs, through fear of the executive had desisted from slaughtering cows, and for this, the defendants could not be held responsible.

15. The lower appellate Court has reversed the decree and granted the declaration and injunction asked for in the suit.

16. Some of the defendants have appealed to this Court and it has been contended on their behalf that the claim for declaration of right as put forward in the plaint is not maintainable and is not warranted by Section 42, Specific Belief Act.

17. It may be noticed that this plea was not specifically raised in the written statement, nor was any issue framed with regard to this. The learned Munsif in dealing with the issue relating to the cause of action, incidentally discusses the applicability of Section 42, Specific Belief Act. The point was not raised before the lower appellate Court and has not been referred to in the judgment. As the point however was one of law, we did not like to be too technical and we allowed the defendants to argue it before us.

18. A number of authorities has been cited, but most of the decisions have no direct bearing upon this question.

19. The right which is sought to be declared by means of this suit has been the subject of judicial decisions in this Court and in the High Court of Calcutta. It may be taken to be settled law that: (1) it is the legal right of every Mahomedan to slaughter cows as an article of food or for purposes of sacrifice. (2) This right belongs to every Mahomedan in his individual capacity as also as a member of the Islamic faith. (3) This right is independent of custom: Shahbaz Khan v. Umrao Puri [1908] 30 All. 181 at p. 184. (4) This right is not lost by mere abstention or non-exercise for a number of years: Chowdhri Mahadeo Prasad v. Nabi Bux [1914] 25 I.C. 104. (5) The exercise of the right is subject to certain limitations. These limitations are the result of either a compulsory regard for the feelings of other people or upon the ground of public expediency so as to prevent a public nuisance or a breach of the peace. The exercise of the right is to be regulated by the common law principle embodied in the maxim, sic uteri tuo ut alienum non laedas (every man is entitled to enjoy his own property according to his likes, provided that in doing so, he does not infringe the legal rights of his neighbour). If, in exercising his own rights, he wantonly disregards the legal right of his neighbour, this gives the latter a cause of action. Similarly, if in the exercise of his right, he is actuated by or creates, animosities, his act may amount to an invasion of the public law and the State may intervene. Circumstances are conceivable where the slaughter of cows may amount to a public nuisance. Where, however, the sacrifices are made within walled enclosures, so that no one could see the process from outside, or where the sacrifices are made with quiet and decency unattended with noisy or riotous demonstration, there can be no grounds for objection. If cow sacrifices offend the Hindus individually or collectively, the act cannot be branded as a public nuisance for the law makes no allowance for the susceptibilities of the hypersensitive. (6) The right may be infringed in a variety of ways and even by a denial of title. Where the declaration of title is necessary for the protection of interest, a cause of action may arise from the mere denial of title. Cases are conceivable, where title maybe imperilled by the mere fact of denial and that fact may operate to produce serious effect on the quiet enjoyment of the right. But where the plaintiff, in a suit for a declaration of right, has all his rights uninvaded and intact ex facie there has been no foundation for an action, and a suit for a declaration of right cannot be maintained. (7) No suit is maintainable for declaration of an abstract right.

20. It is abundantly clear that the present suit is not one for declaration of an abstract right. The right of the plaintiff was jeopardized by determined opposition on the part of the Hindus before the date of the action. It is certain that they denied the plaintiffs' right. But they did something more. The finding of the lower appellate Court is clear on this point:

But the evidence on the record abundantly shows that the Hindus of the village have not only serious objections to the killing of the cows in the village but thereaten to interfere with the exercise of the plaintiffs' right.

21. The present suit is not for obtaining a declaratory relief simpliciter. The plaintiffs claimed an injunction. The object of the declaratory decree is to obtain a judicial recognition of the plaintiffs' right. Its enjoyment is to be protected by an injunction, restraining the defendants from interfering with its exercise. The interference of the defendants in the past and the threats used by them constituted a substantial cause of action. It is therefore not a suit for declaration of an abstract right but for the protection of the right, which has already been infringed. Where a right has been infringed by hostile demonstrations on the part of the defendants, coupled with a denial of the said right, a suit for declaration of the right is maintainable under Section 42, Specific Belief Act. A declaratory suit is also maintainable for the due enjoyment of the 'property' belonging to the plaintiff which includes a cow. Where the plaintiffs' right is denied by the defendants, who, as Hindus, are interested in denying it, and the right in controversy is with reference to property belonging to the plaintiffs, Section 42, Specific Belief Act, at once comes into play. Even the bare denial by a person who is interested to deny invests the plaintiff with a cause of action for a declaratory suit under Section 42, Specific Relief Act.

22. Reliance has been placed by the defendants on Ori Lal v. Mohammad Yakub [1914] 17 O.C. 354. In this case the plaintiffs, who were Mahomedans had sued for a declaration that they were entitled to slaughter cows inside their houses. The defendants (Hindus) had never interfered with the exercise of the alleged right. The plaintiffs had applied to the Deputy Commissioner for permission to sacrifice. In the course of the enquiry the defendants filed a petition in which they denied that the Mussalmans had any right to sacrifice cows in Bilgram. The defendant had offered no active opposition, but had put in a petition in the course of the magisterial enquiry. It was doubtful therefore if any cause of action had accrued against the defendants. No injunction was prayed for in that case. The case appears to have been decided upon facts peculiar to it and the learned Judge was justified in holding that the granting of a declaratory relief, being discretionary, the discretion ought not to be exercised in favour of the plaintiffs. This case cannot be held to be an authority for the proposition that no declaratory suit is maintainable upon a bare denial of right. Denial of right and denial of an abstract right are two different things. It is noteworthy that the learned Judge was referred to the case of Shalibaz Khan case [1908] 30 All. 181, in which upon similar facts a declaration of right to slaughter cows, coupled with an injunction, was prayed for and decreed. The learned Judge did not dissent from this decision but distinguished it.

23. Declaratory relief, as prayed for in this case, was granted by this Court in Shahbaz Khan's case [1908] 30 All. 181. In this case, the applicability of Section 42, Specific Relief Act, was not argued or discussed. In Sheik Mohamad Yakub v. Mungru Rai [1910] 7 I.C. 318 it was held that Section 42, Specific Belief Act, enables a person who is entitled to a right to any property to institute a suit against a person denying or interested to deny his title to such right, and as the defendants in that case were not interested in denying the plaintiffs' title in the sense in which the word 'interested' is used in the section, it lay upon the plaintiff to prove that they did deny his title before the suit was instituted. According to this decision therefore the denial of a right may constitute a cause of action for a declaratory suit. A similar view was taken by another Bench of this Court in Mohammad Salim v. Ram Kumar Singh : AIR1928All710 . The current of authorities is therefore in support of the plaintiffs' claim. The principle underlying the aforesaid decision is further fortified by the pronouncement of the Judicial Committee in in re Manzur Hasan v. Mohamad Zama . The parties to the suit were Shias on one side and Sunnis on the other. There was no dispute about slaughter of cows. A declaratory right was claimed about the right of the Shias to take out their religious procession through the public street on which stood a Sunni mosque. Section 42, Specific Belief Act, has not been dealt with or applied by their Lordships, but they upheld the decree of the trial Court which had passed a declaratory decree. This decision is only helpful by way of analogy.

24. In view of our findings this appeal must substantially fail, but we are of opinion that the plaintiffs were not entitled to an unconditional decree. In modification of the decree passed by the lower appellate Court we give the plaintiffs a decree declaring that they have a right to slaughter cows within their houses and in any place within their exclusive possession which is not exposed to public view for purposes of daily consumption and for religious sacrifices on the occasion of Iduzzuha and other festivals, provided that they make no noisy or riotous demonstrations, and provided also that in the exercise of such right they do not commit a nuisance or infringe any rule of law or direction issued or promulgated by the lawfully constituted authorities relating to the said right. We grant an injunction restraining the defendants from interfering with the rights of the plaintiffs as above declared. The defendants-appellants may pay the costs of the plaintiffs-respondents.


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