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Muhammad Salim Vs. Ramkumar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All710; 110Ind.Cas.657
AppellantMuhammad Salim
RespondentRamkumar Singh and ors.
Excerpt:
.....the plaintiff's pleader defined the right claimed by the plaintiff a little more exactly as a right to sacrifice cow in his residential house, or in a house or at any other such safe place the land of which may not be the property of a non-muslim and which may not be exposed to the public view. it was admitted before us on behalf of the respondents that the question of whether a custom exists in the village is really irrelevant, and that the plaintiff must be held to have a right to slaughter his own cow if he wishes to do so, provided that he does not act in an offensive manner. i will try my best to prevent it. the circumstances of that case were, of course, somewhat different, but we believe that the analogy would hold good, and that the plaintiff is entitled to obtain the..........a declaration that hein particular and other musalman residents of the village in general have a right to sacrifice cow specially on the occasions of festivals and id-uz-zoha, regardless of any rite or custom in mauza pura shaikh maruf, appertaining to kurthi jafarpur, pergana ghosi and that the defendants have no right to make interference thereto,2. he also prayed for a permanent injunction to restrain the defendants from offering any sort of obstruction when musalman residents of the village should offer sacrifice of cows or slaughter them. the cause of action is stated in this para. 4 of the plaint to be that on the occasion of id-uz-zoha in 1924 the defendants came to the plaintiff's village in large numbers, surrounded it, and told the plaintiff that they would not allow him to.....
Judgment:

1. The plaintiff-appellant is a weaver residing in Mauza Pura Shaikh Maruf, said to be appertaining to Kurthi Jafarpur, and he sued the 17 defendants, who are Hindu residents of Kurthi Jafarpur and other villages in the District of Azamgarh, for a declaration that he

in particular and other Musalman residents of the village in general have a right to sacrifice cow specially on the occasions of festivals and Id-uz-zoha, regardless of any rite or custom in Mauza Pura Shaikh Maruf, appertaining to Kurthi Jafarpur, Pergana Ghosi and that the defendants have no right to make interference thereto,

2. He also prayed for a permanent injunction to restrain the defendants from offering any sort of obstruction when Musalman residents of the village should offer sacrifice of cows or slaughter them. The cause of action is stated in this para. 4 of the plaint to be that on the occasion of Id-uz-zoha in 1924 the defendants came to the plaintiff's village in large numbers, surrounded it, and told the plaintiff that they would not allow him to offer sacrifice of a cow, and if the sacrifice were offered they would plunder the plaintiff's house as well as those of other Musalman residents, and would kill the plaintiff, and that in consequence of this the plaintiff was afraid to offer the sacrifice and refrained from doing so. Various pleas were raised in defence, the most important of which was that it was the district authorities who prevented the sacrifice of cows at the last Id-uz-zoha. While it was admitted that no sacrifice took place, it was not admitted that the defendants had any hand in preventing it. It was also said that there was no custom of cow sacrifice in the village and that the plaintiff did not own any property in the village, but these matters are not really' relevant to the dispute between the parties. Before judgment was pronounced in the lower Court the plaintiff's pleader defined the right claimed by the plaintiff a little more exactly as

A right to sacrifice cow in his residential house, or in a house or at any other such safe place the land of which may not be the property of a non-muslim and which may not be exposed to the public view.

3. The learned Subordinate Judge framed a number of issues, many of which have not been discussed before us. He found that the plaintiff had not sued in a representative capacity but that he had a right to bring the suit in his personal capacity, and that every Muhammadan has a right independent of any custom to sacrifice cows and to slaughter them on his land. As regards what happened on the occasion of Id-uz-zoha, after discussing the evidence to some extent, he remarks:

My idea is that there was some quarrel between the Hindus and Muhammadans and the latter gave out that they would sacrifice cow on the Baqrid day, that the police got news of it and had agreements executed by the parties, that a report under Section 107, Criminal P. C, was also made, that the parties settled their differences and the Muhammadans refrained from slaughtering cow, but as the rumour had been afloat for some time Hindus had come from outside whom the defendants sent back as the matter had been settled and there was no trouble. There was no interference by the defendants on the Baqrid day, in fact the plaintiff never wished to sacrifice cow, but he has subsequently connected the story that thousands of parsons had collected and threatened to kill him and loot his house.

4. After repeating that the plaintiff had a right to sacrifice any cow that was his own property whenever he likes the Subordinate Judge in a somewhat remarkable paragraph come to the conclusion that as the plaintiff sued in his personal capacity he had to show where he wanted to slaughter the cow and as he had not been able to prove that there was any place in the village in which he had a right to slaughter a cow he could not claim any relief from the Court, and, therefore, dismissed the suit.

5. The findings of fact by the lower Court have been assailed before us, and we have examined the whole of the evidence in detail. It was admitted before us on behalf of the respondents that the question of whether a custom exists in the village is really irrelevant, and that the plaintiff must be held to have a right to slaughter his own cow if he wishes to do so, provided that he does not act in an offensive manner. But it was argued on the facts that the defendant did not interfere with the sacrifice on the occasion stated and indeed that the plaintiff made no attempt to offer a sacrifice, and it was further argued that the plaintiff could not claim a declaration under the Specific Relief Act for an abstract right such as the right to sacrifice a cow.

6. The plaintiff himself Muhammad Salim gave evidence as to what happened on the occasion of the Id. He said:

Ram Kumar Singh and the other defendants prevented me from sacrificing cow on the occasion of Id-uz-zoha. They were telling publicly that if anybody would sacrifice cow they would loot and murder him. On Id day they surrounded the village and also my house. The defendants told me that if I would sacrifice cow they would murder me. Bight or ten thousand persons had surrounded the village. The defendants had told what I have stated above from a distance of 4 or 5 bighas from my house.... The result was that owing to fear I could not sacrifice cow.

7. Abdul Qadir, a resident of Kurthi Jafarpur, stated:

Hindus collected on the last Baqrid day before the prayers. There were more than five or ten thousand persons with lathis.

8. Sulaiman resident of Pura Shaikh Maruf, stated:

On the last Baqrid day after we had read the prayers, an hour after the Hindus surrounded the village. Defendants were among them. We did not do sacrifice then. We had made arrangement for sacrifice but we did not as we got afraid.

9. Muhammad Ibrahim, another witness of the same village, stated:

On the last Baqrid day there was a collection of the defendants and others. When we came after saying our prayers they surrounded the village. The defendants were telling that if I sacrificed, my house will be looted and I will be murdered. Salim was named and others were prohibited.

10. Such is the direct oral evidence offered by the plaintiff as to the events on the occasion of the Id. Ram Kumar Singh, the leading defendant, made a long statement, but he did not mention the events which took place on the Id. He certainly said::'I did not call men on Baqrid last for riot' and that there was no apprehension of breach of peace. But he admitted:

I have objection if the Muhammadans sacrifice cow within closed doors. I will try my best to prevent it.

11. That there was some trouble or apprehension of trouble on Baqrid day must certainly be inferred from the statements of three Hindu chaukidars who gave evidence for the defendants. Ram Sumer who was sent to Kurthi Jafarpur on Baqrid day said:

Some 10, 20 or 50 Hindus had collected near the hut of a Sadhu.... The Sub-Inspector was there for the whole day.... I got prize as there was no cow sacrifice.... I got the prize as the sacrifice of cow could be prevented and there was no riot.

12. Madho Singh describing what happened on the Baqrid day said:

Cow was not sacrificed that day in Kurthi Jafarpur. There was no riot, or apprehension of riot on that day.... Extra police had come. Salim and others wanted to do a new thing, that is, wanted to sacrifice cow.

13. Raghu the third chaukidar stated:

I got prize for preventing new thing being done and not for preventing riot.

14. It is not clear who gave rewards to these three chaukidars for preventing the sacrifice, but it is clear from their statements that preparations were being made by Salim and possibly other Muhammadans to sacrifice cows, and that they were prevented from doing so. The chaukidars certainly suggested that it was themselves or the police, and not the defendants or any other independent Hindus, who actually prevented the sacrifice, but they do not support Ram Kumar Singh's assertion that there was no attempt on the part of the plaintiff to make sacrifice on that occasion.

15. Two documents which are referred to in evidence as 'reports' were filed by the plaintiff and were accepted by the Court and relied on to a considerable extent. The first of these is printed at p. 45 and is dated 15th May 1924. This merely shows that there was a report under Section 107, Criminal P.C., and that the parties who were Hindus on the one side and Muhammadans on the other had settled their dispute relating to the blowing of conches and the sacrifice of cows. In connexion with this so-called report (which was not proved by the evidence of the Sub-Inspector who wrote it) two agreements were filed the one signed by Ram Kumar and other Hindus showing that they had agreed to blow conches after prayers were over in return for an agreement executed by the Muhammadans:

regarding the non-performance of cow sacrifice as usual,

and the other signed by Haji Karim Bakhah and, other Muhammadans to the affect that

The residents of mauza Kurthi Jafarpur have come to terms on conditions that there will be no cow sacrifice in this village.

16. Both these agreements are dated 18th May 1924, i.e., about two months before the Baqrid. The second so-called ''report'' is a note in the general diary signed by a Mahomedan Sub-Inspector called Shaafatullah Khan, who did not give evidence. It is dated 16th July. The gist of it is that:

On the 14th July the Hindus on the basis of news that Mahomedans of Mauza, Kurthi Jafarpur would offer sacrifice of cow used to come outside the abadi from all sides in bitches of 50 and 100 on different occasions and used to go back on receipt of the information that the cow would not be sacrificed.... Ram Kumar Singh and Chotu Singh zemindars and others prevented these batches and sent them back.

17. Ram Kumar Singh and Chotu Singh are two of the leading defendants, and the Subordinate Judge has relied almost entirely on this report for holding that the defendants instead of preventing the Mahomedans from doing sacrifice were asking other men who had come for the purpose to go back. This finding is not easy to reconcile with his further findings that the plaintiff never wished to sacrifice a cow on the Baqrid day, and that the story that thousands of persons had collected was a complete concoction. It should be stated that the admissibility of these police papers had been called in question on the ground that they were never proved. They have been supported by reference to Section 35, Evidence Act. No doubt they are entries in an official register made by a public servant in the discharge of official duty, and as the handwriting of the Sub-Inspectors who made the entries has been identified in Court it would be difficult to rule them out. The importance of the entry of the 16th July, however, is considerably discounted by the fact that Shaafat-ullah Khan himself was not examined. It was perhaps natural for the Subordinate Judge to rely on a report made by a Mahomedan Sab-Inspector in a matter of this kind which was to some extent favourable to the Hindu defendants. The 'report', however, does show that there was an attempt or at any rate a preparation to sacrifice cows, that there was a large gathering, in fact a series of gatherings of Hindus with the intention of preventing the sacrifice of cows, and that Ram Kumar Singh and Chotu Singh were present on the spot. If the Sub-Inspector had made a statement in Court on oath to the effect that these two gentlemen refrained from interfering with the plaintiff, and had adhered to that statement in the face of cross-examination on behalf of the plaintiff, we should perhaps have been in a position to accept his statement in preference to the sworn testimony of the Mahomedan witnesses to the effect that Ram Kumar Singh and Chotu Singh with the other defendants interfered with them. We have already noticed that Ram Kumar Singh has avoided as far as possible a mention of the events of the Baqrid day. He has certainly not stated that he took an active part in preventing other Hindus from interfering with the Mahomedans and indeed it has been his case throughout and that of the other defendants, that there was no incident at all on the Baqrid day, that no attempt was made to sacrifice cows and that the whole affair is a concoction.

18. This statement of Ram Kumar Singh's cannot be accepted, and we must differ from the learned Subordinate Judge in his findings as to what happened on the Baqrid day. We have no doubt that the plaintiff and probably other Mahomedans too ware preparing to sacrifice cows. We have their own evidence on the point. We have the testimony of the chaukidars who were called on behalf of the defendants, and we have the police reports. It is not really difficult to understand what happened. Some of the Mahomedans had entered into an agreement not to sacrifice cows. The plaintiff was no party to that agreement, though he is the son of Karim Bakhsh who was a party. When he and possibly other Mahomedans prepared to sacrifice cows the Hindus had certainly some grounds for fearing that they were being hoodwinked, and they may even have thought that the plaintiff and his friends were definitely bound by the agreement and were preparing to break it. They, therefore, took active steps to see that the agreement should not be broken, and they succeeded in preventing the sacrifice. We think we are bound to accept the evidence of the plaintiff and his witnesses to the effect that the defendants themselves were among those who prevented the sacrifice by threatening the Mahomedans. What part the police took in the matter is not altogether clear. It was their duty to prevent a riot and in this they succeeded. But the circumstances suggest that there would have been a riot, because the Hindus were present to prevent the sacrifice. The point is that the sacrifice would not have been stopped unless the Hindus had made a show of force to prevent it.

19. This being, in our opinion, the undoubted facts of the case we have to consider whether the plaintiff is entitled to the relief that he claims. It has been argued on behalf of the respondents that he is not and some stress has been laid on the case of Ori Lal v. Muhammad Yakub [1914] 17 O.C. 354. In that case the Muhamadan plaintiffs had asked for a declaration that they were entitled to slaughter cows inside their houses. It appears that they had made an application to the Deputy Commissioner for permission to sacrifice, that a Deputy Magistrate had been deputed to enquire into the matter, and that the Hindu defendants then filed a reply to the plaintiffs' petition in which they denied the right to sacrifice in Bilgram. This was the only cause of action stated against the defendants. There was no suggestion that the defendants had ever interfered with the exercise of the alleged right, and indeed the plaintiffs withdrew their petition and filed a civil suit in its place. There was no application for an injunction, but only for a declaration, and the learned Judge who decided the case came to the conclusion that Section 42, Specific Relief Act, was not designed to meet cases of this kind. 'It is hardly to be imagined' he remarks:

that a person who under the common law has a right, say, to personal safety or freedom or to reputation can come to Court with a suit under Section 42 and ask for a declaration against another person whose interference with the exercise of the right has been confined to a bare statement that the right does not exist.

20. In the present case, the interference went far beyond such a bare statement. He was further influenced in his decision by the fact that a purely declaratory decree which would be incapable of execution would leave the parties exactly where they ware before the suit, and he differentiate the facts from those in the case on which the plaintiff-appellant in the present appeal has chiefly relied, viz., Shahbaz Khan v. Umrao Puri [1908] 30 All 181 which was decided by a Bench, of this Court. In that case the defendant Hindus had applied to the District Magistrate of Budaun for an order that the Muhomadans in the village should be forbidden to slaughter cows, and the Magistrate made an order which without being very definite, was on the face of it adverse to Muhamadans and made it clear that the members of the Muhamadan community in the village of Beta Goshain could not slaughter kine except at the risk of criminal proceedings. The learned Judges before whom the appeal was argued remarked:

When a question in which the ordinary rights of property are involved comes before us, we must, before we can allow those rights to be infringed, endeavour to find the existence of some principle or rule of law justifying a ruling that the wishes or susceptibilities of individuals can be allowed to override such rights. Acts calculated to offend the sentiments of a class do not necessarily amount to a public nuisance.

21. After reviewing a number of authorities on the subject, their Lordships came to the conclusion that it is the legal right of every person to make such use of his own property as he may think fit, provided that in doing so he does not cause real injury to others or offend against the law, even though he may thereby hurt the susceptibilities of others; and they gave a decree to the plaintiffs for a declaration of their rights and an injunction restraining the defendants from interfering with those rights provided that the plaintiffs should not in the exercise of their rights commit a nuisance or offend any rule or regulation lawfully promulgated and applicable to that village. An attempt has been made in this Court to differentiate the facts of the present case, on the ground that the defendants here have not gone so far as to get the District Magistrate to forbid the sacrifice. As a matter of fact there can be no doubt in our minds that for the defendants to prevent the sacrifice by a show of violence, and by threats of a serious nature, was an even more drastic interference with the rights of the plaintiff than a successful application to the District Magistrate would be. Their Lordships of the Privy Council in the case of Manzur Hassan v. Muhomad Zaman held that a declaration of the existence of a right to conduct a religious procession through a public street might be granted, subject to the orders of the local authorities regulating the traffic to the Magistrate's directions and the rights of the public. The circumstances of that case were, of course, somewhat different, but we believe that the analogy would hold good, and that the plaintiff is entitled to obtain the necessary relief from the civil Court without any prejudice to any order which may hereafter be passed by the district authorities for the purpose of maintaining public peace.

22. We, therefore, allow the appeal, set aside the decree and order of the lower Court, and grant the plaintiff a decree declaring his right to sacrifice cows in his residential house and in any place which is not exposed to the public view, and also for an injunction restraining the defendants from interfering with that right. The plaintiff-appellant will receive his costs from the defendants in both Courts.


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