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Shahi Jama Masjid, Merta Vs. Kanhaiya Lal Bhagat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 368 of 1965
Judge
Reported inAIR1973Raj322; 1973()WLN448
ActsWaqf Act, 1954 - Sections 55; Evidence Act, 1872 - Sections 101 and 104
AppellantShahi Jama Masjid, Merta
RespondentKanhaiya Lal Bhagat and ors.
Appellant Advocate Zafar Hussain and; Pyarelal, Advs.
Respondent Advocate G.M. Lodha, Adv.
DispositionAppeal partly allowed
Cases Referred and Labhu Ram v. Ram Partap.
Excerpt:
waqf act, 1954 - section 55 and civil procedure code--section 92--suit by managing committee against trespasser in respect of land belonging to trust--held, suit is not barred.;it is a suit by the managing committee of the mosque for seeking a relief of injunction against certain alleged trespassers on the open piece of land which, according to the plaintiffs, belongs to the mosque. therefore, section 65 of the waqf act, 1954 does not debar the plaintiffs from bringing a suit of the present kind.;(b) waqf act, 1954 - section 57--notice to waqf board--held, trespasser cannot be heard to say that proceeding are void for want of notice to the waqf board.;sub-section (1) enjoins a court to issue a notice to the waqf board at the cost of the party instituting the suit or proceeding relating to.....kan singh, j. 1. this is a plaintiff's second appeal arising out of a suit for mandatory and permanent injunction as well as mesne profits,2. the suit was filed by the managing committee of the shahi jama masjid, merta city. the mosque known as the shahi jama masjid is said to have been constructed by the muslim emperors of delhi. it is a massive building. it has a solid platform and comprises heavy arches, domes and lofty minars. it is a protected ancient monument and is tinder the supervision of the archaeological department according to the plaintiff, there are a large number of shops appurtenant to the mosque.3. the subject-matter of the litigation is a small strip of open land 51/2 x 41/2 situated on the back side of the mosque towards the south of the western corner of the main.....
Judgment:

Kan Singh, J.

1. This is a plaintiff's second appeal arising out of a suit for mandatory and permanent injunction as well as mesne profits,

2. The suit was filed by the Managing Committee of the Shahi Jama Masjid, Merta City. The mosque known as the Shahi Jama Masjid is said to have been constructed by the Muslim Emperors of Delhi. It is a massive building. It has a solid platform and comprises heavy arches, domes and lofty minars. It is a protected ancient monument and is tinder the supervision of the Archaeological Department According to the plaintiff, there are a large number of shops appurtenant to the mosque.

3. The subject-matter of the litigation is a small strip of open land 51/2 X 41/2 situated on the back side of the mosque towards the south of the western corner of the main building. It is sandwiched between two shops. According to the plaintiff, the strip of land in question was in the ownership and possession of the Shahi Jama Masjid and the Management Committee had been admitting tenants on it from, time to time. The grievance of the plaintiff was that the Municipal employees of Merta had fixed certain slabs of stone in the disputed strip of land. This is said to have been done by stages. At one time two slabs were put to start with and then later on 4 more slabs were fixed. What is written on these slabs of stone could not be deciphered, but according to the plain-tiff, there was the figure of a donkey on one of the slabs and also there was some inscription forbidding the 'Bawris' (formerly recorded as a criminal tribe) from undertaking the obnoxious trade in tobacco. In the year 1956 the Managing Committee of the mosque made a complaint against the fixation of the new slabs in the disputed strip to the Municipal Board, Merta and on 31-3-1956 the Municipal Board passed an order directing the removal of a slab that had been newly put and it was recited in the resolution (Ex. 6 on record) that two slabs were old ones. According to the plaintiff, after 31-3-1956 three more slabs were introduced by the Municipal employees in the disputed strip with the connivance and support of some of the Hindus of Merta. The plaintiff, therefore filed thesuit against Hindus of Merta City in arepresentative capacity.

4. It was prayed that mandatory injunction be granted against the defendants for the removal of the six slabs and further the defendants be permanently restrained from interfering with the enjoyment of the suit land by the plaintiff. It was further prayed that the defendants be restrained from interfering with the plaintiff in opening a door on the suit land. The plaintiffs also claimed mesne profits at Rs. 11/- per month from the defendants. Rupees 11 were claimed as mesne profits, because one Ismail Bhadbhooja who was the last tenant let in by the plaintiff and who was made to quit by the defendants was paying Rs. 11/- per month as rent to the plaintiff.

5. The suit was contested by the defendants. It was denied by them that the suit land was in the ownership and possession of the plaintiff. It was asserted that the plaintiffs were incompetent to lease out the disputed land. It was denied that any slabs of stone had been freshly introduced on the disputed land and it was pleaded that the so-called stone slabs were having inscriptions and images thereon and they were of religious importance for the Hindus. According to them, they were existing for almost 100 years. The defendants further pleaded that the suit was not maintainable as in accordance with the provisions of Section 92, Civil Procedure Code sanction of the Government Advocate had not been taken by the plaintiffs before filing the suit. I may pause to state that there was perhaps a misapprehension regarding the designation of the officer and the defendants perhaps meant the Advocate-General when they pleaded that without his permission the suit was not maintainable. Then it was pleaded that the Government as well as the Municipal Board were necessary parties to the suit. The learned Civil Judge Merta, in whose court the suit was filed, framed the following issues:--

^^1- vk;koknh ua- 2 dks cequkflQ gqDe fnukad 21&6&56 lqifjUVsUMsUV vkjf{k;ksadksftykfoHkkx tks/kiqj ds oknh ua- 1 dh rjQ ls nkok gktk ykus dk gd gS A oknh 1

2- vk;k jktLFkku LVsV ;keqfufliy cksMZ esM+rkflVh nkos gkts esa ykteh Qjhd gS A izfr-

3- vk;k oknhx.k fcyk btktrxouZesUV ,MoksdsV gYQ nQk 92 tk- nh- ekStqnk nkok ugh dj ldrs A izfr-

4- vk;k [kkapk eqrftdka ua- 2vthZnkok oknhx.k dk eeuqdk epdqyk gS A oknh

5- vk;k oknhx.k [kkpk- eqrnkfo;kdh Lys{k; gksus dh gkyr esa Hkh le; 2 ij fdjk;k nsrs jgs gSa vkSj vxj ,slk gSrks nkos ij D;k vlj gksxk oknh-

6&,- vk;k eqfuflikyVh flVhesM+rk ds eqyfteku us [kkapk eqrnkfo;k es lM+d curs oDr o mlds ifgys Hkh 5&6Qkyrq flys% iks'khnk rkSj ls yMk nh A oknh-

6&ch-; vxj ,slk gS rks D;k [kkapketdqj esa fcyk ,rjkt oknhx.k dkQh vlsZ ls-------iM+s jgsus dh otg ls vc oknhx.keUMsVjh bUtsD'ku ikus ds eq'rgd egha gS A izfr-

7- vk;k rk- 14&1&56 dksfgUnqLrku esMrk us eqnk;ysfge dh genkn ls [kkapk ernkfo;k es eqnklyr dh vksjeqnys;ku ds fdjk;snkj bLekby dk Vhu dk Nijk o lkeku Qsad fn;k blfy;s oknhx.kizfroknhx.k ls 11 :- egkokj fdjk;k crkSj gtkZuk ikus ds eq'rgd gS A oknh-

8- vk;k oknhx.k dks lk;s&etdqjdh; rjQ efLtn dh fnoky gVkdj ekZMk fudkyus dk o [kkapk oj ------gVkus dk gdgkfly gS oknh

9- vk;k oknhx.k dh crkbZ gqbflysa-------fgUnqvks dh nsofy;k gS tks lSadMksa o'ksZ ls [kkps eqrnkfo;kesa LFkkfir gS vkSj ;g [kkapk ges'kk ls [kqyk jgk gS A bl nkos ij D;k vlj gS izfr-

10- vk;k [kkapk eqrnkfo;ka lsnsofy;ka lSdMksa cjlks ls LFkkfir gS A o fgUnqvksa dk ogka ges'kk ls vken jQr gSA ftlls nkok csdu e;kn gS A izfr-

11- Qjhdsu fdl nkn ds eq'rgd gS

The learned Civil Judge recorded the evidence of the parties. He decided issues Nos. 1, 2 and 3 on 20-11-61 against the defendants. It was held by him that the State of Rajasthan or the Municipal Board. Merta were not necessary parties. Regarding issue No. 4 the learned Judge held that the suit land was in the possession of the plaintiffs. As regards issue No. 5 the learned Civil Judge found that there were only two 'Devlis' on the suit 'Khancha' (land) from before the date of the resolution by the Municipal Board (Ex. 6) passed on 31-3-56 and the remaining slabs or 'Devlis', whatever they may be called, had been introduced later on the suit land. As regards issue No. 7 the learned Judge held that the suit land had beenlet out to Ismail for Rs. 11/- per month and Ismail had also fixed a tin shed which had been removed by the Hindus of Merta. The learned Judge, therefore, held the plaintiff entitled to get Rs. 11/-per month, as mesne profits from the defendants. In consequence the learned Judge held that the plaintiffs cannot be held entitled to have the removal of two slabs or 'Devlis' from the suit land, but the remaining' 4 had to be removed. In the result, the learned Judge awarded the plaintiffs a decree in the following terms:--

^^fMk cgd oknhx.k f[kykQizfroknhx.k o leLr fgUnq esM+rk gqde gEdfg nokeks dh bl r'kjhg ds lkFk lkfnj dhtkos fd izfroknhx.k [kkpk eqrnkfc;k eqUntkZ iMksl isjk ua- 2 vthZnkok esa Hkfo';esa fdlh fdLe dk nLrunkth cn[ky ugh djas vkSj oknh la[;k 1 ds jQhd oknh la[;k 2tks dksbZ Hkh fdjk;snkj bl [kkps es j[ks mlls dksbZ eqtkger ;k jksd Vksd ugh djsvkSj u djkos A izfroknhx.k dks esUMVjh bUtsUD'ku }kjk ;g Hkh ikcUn fd;k tkos fdoknhx.k dhs nks xbZ iqjkuh lhyk ds vyok cdk;k flyksa dks gVkdj nqljh txg j[kuesa dksbZ jksd Vksd en[kyr ugha djs A vkSj u djkos A oknhx.k ikap :i;s ekgokj lscrkSj ehu izksfQV izfroknhx.k dks rkjh[k 14&1&58 ls rk- QSlyk eqDnek vndjs A [kpkZ cdknjs dk e;kth oknhx.k izfrcknhx.k ls ikosx A**

6. Aggrieved by the decree ofthe learned trial Court both the parties went up in appeal to the court of the learned District Judge, Merta. The learned District Judge by his judgment dated 7-12-64 held: (1) that the plaintiffs were in possession of the suit land, (2) that two of the 'Devils' were existing there for a period of more than 33 years. (3) that the Hindu public have a right of worshipping the 'Devlis'. Consequently the defendants had a right to go on the land occupied by the plaintiff for the purpose of worshipping the 'Devlis'. (4) Further the learned Judge found that the 4 'Devlis' which had been recently installed cannot be allowed to be kept on the suit land. The learned District Judge seems to have arrived at a half way house in disposing of the matter, In his own words:--

'The plaintiffs will be entitled to get this suit Khancha on rent so that the shop-keeper could have his shop in the suit Khancha in the marketing hours and then if any body wanted to worship these Devlies he will do so. This is the only finding which I was able to arriveafter careful consideration of the circumstances and evidence that has been produced in this case and thereby both the parties will reconcile to the fact that they have Sot back the rights which they were exercising for so many years and thus the communal harmony will be maintained which, is very essential specially in these days.'

In the result, the learned Judge allowed the defendants' appeal in part to the extent that after the shops are closed the appellants will have the right to worship the 'Devlis' if they wished and so the injunction granted by the learned Civil Judge ordering the defendants not to interfere in plaintiffs possession of the suit 'Khancha' shall apply only to the period while the shop on the suit 'Khancha' was being held and till the market was closed. The learned Judge further ordained that a judicial notice shall be taken of the period during which the shops were kept open according to the Shops and Commercial Establishment Act passed by the Rajasthan Legislature, irrespective of the fact whether the provisions thereof were applicable to Merta City looking to the size of the population or not. The learned Judge further granted a mandatory injunction in favour of the plaintiffs and against the defendants that either the defendants remove any four 'Devlis' from the suit 'Khancha' or if the defendants fail to do so then the plaintiffs shall be entitled to remove them and the defendants were restrained from causing any interference in thai. work which would be done by the plaintiffs.

7. In other words, the learned Judge dismissed the plaintiffs' appeal and allowed the defendants' appeal in part in the above terms.

8. Aggrieved by the decree of the learned District Judge the plaintiffs have come in second appeal to this Court and the defendants have filed their cross-objections.

9. In assailing the judgment and decree of the learned District Judge, learned counsel for the appellant has contended that the court below was in error in holding that the 'Devlis' were idols being worshipped by the Hindus during the relevant period. Learned counsel invited attention to the written statement filed by the defendants in which it was not pleaded that the 'Devlis' or the idols were being worshipped. Apart from this learned counsel submitted that there was no satisfactory evidence for showing that these 'Devlis' had in fact been worshipped by the Hindus. As regards the statements of Kanhaiyalal and Bhanwarlal Tater,learned counsel submitted that Kan-haiya Lal did not say that he had seen anyone performing the worship of the idols. As regards the statement of Bhan-warlal Tater. learned counsel argued that he had admitted that in the suit 'Khancha' salt had been stored up for sale and. therefore, that went to show that the so-called idols could not have been worshipped. Learned counsel stressed that the learned District Judge has not discussed the evidence in support of his conclusion and he has overlooked the fact that the witnesses were partisan. Apart from this the Brahmins Sukh-ram Srimali. Morji and Chawla Maharaj are alleged to have worshipped the 'Devlis1 from time to time, but submits learned counsel, that they had not been examined. The learned District Judge has according to learned counsel, proceeded on the so-called inherent probabilities of the case which were nothing but conjectures. Then learned counsel pointed out that who were the deities represented by these 'Devlis' had not been specified and on one slab there was the image of a donkey with some inscription which went to show that it was not an idol meant for worship, but it only contained a kind of injunction for certain people not to undertake the obnoxious trade in tobacco. Learned counsel then submitted that there was no warrant for permitting daily 'Puja' in the night on the suit land when 'Puja' had never been performed by any one in the past. Learned counsel further argued that there was no justification for reversing the decree of the trial Court for the mesne profits as the suit land had been held to be of the plaintiffs. Finally, learned counsel argued that the defendants' appeal before the learned lower appellate Court was not properly constituted as out of the 15 defendants only 9 had joined in the appeal.

10. Learned counsel for the respondent tried to support the decree of the learned District Judge in so far as it was against the plaintiff, but he sought to challenge it by his cross-objections in so far as it went against the defendants. By way of a preliminary objection learned counsel submitted that neither the suit nor the appeal were maintainable. In the first place, according to him. notice was not given to the Waqf Board. He even went to the length of arguing that the suit could not have been filed by the plaintiff, but it could have been done only by the Waqf Board. Then learned counsel submitted that in accordance with Section 72 of the Rajas-than Public Trusts Act. 1959, notice of the suit to the Devasthan Commissioner was obligatory and since this was not done in the trial Court the suit was notmaintainable. Then the other objection taken by the learned counsel was that the Municipal Board and the Government were necessary parties to the suit. Then the learned counsel attacked the findings of the courts below in so far as the 'Devlis' were held to be newly installed. He maintained that the place was of religious importance to the Hindus and they had a right of worship there.

11. I may first deal with the question whether the suit could not have been filed by the plaintiffs without the sanction of the Rajasthan Waqf Board-I may read Section 55 of the Waqf Act. 1954 on which reliance is placed:

'Section 55. Institution of suits under Section 92 of the Code of Civil Procedure, 1908:--

(1) A suit to obtain any of the reliefs mentioned in Section 92 of the Code of Civil Procedure. 1908 (5 of 1908). relating to any wakf. may, notwithstanding anything to the contrary contained in that section, be instituted by the Board without obtaining the consent referred to therein.

(2) No suit to obtain any of the reliefs referred to in Section 92 of the Code of Civil Procedure. 1908 (5 of 1908), relating to any wakf shall be instituted by any person or authority other thap the Board without the consent in writing of the Board and for the institution of any such suit, it shall not be necessary to obtain the consent referred to in that section. notwithstanding anything contained therein :

Provided that nothing in this subsection shall apply in relation to anv such suit against the Board.'

According to the plain reading of the section the provisions of Section 92, Civil Procedure Code were modified so far as the consent of the Advocate-General for the suit was to be taken under Section 92. C. P. C. and instead of the consent from the Advocate-General consent of the Waqf Board was required, nevertheless the suits for which sanction is required are such as are specified in Section 92. Civil Procedure Code. Section 92. Civil Procedure Code, inter alia, lays down that in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the Advocate-General or two or more persons having an interest in the trust and having obtained the 'on-sent In writing of the Advocate-General, may institute a suit. whether contentious or not for obtaining a decree for :

(a) removing any trustee; (b) appointinga new trustee; (c) vesting any property in a trustee; (cc) giving certain directions to a trustee as laid down in Clause (cc); (d) directing accounts and inquiries; (e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust-property to be let. sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. This is, by no means, a suit contemplated by Section 92. Civil Procedure Code. It is a suit by the Managing Committee of the mosque for seeking a relief of injunc-tion against certain alleged trespassers on the open piece of land which, according to the plaintiffs, belongs to the mosque- Therefore. Section 55 of the Waqf Act. 1954 does not debar the plaintiffs from bringing a suit of the present kind.

12. Learned counsel next submitted that according to Section 57 of the Waqf Act the Court was required to issue notice to the Board at the cost of the party instituting such suit or proceeding end in the absence of this the suit could not have been continued by the plaintiffs, I may read Section 57:

'Section 57. Notice of suits, etc. by courts.-

(1) In every suit or proceeding relating to a title to wakf property or the right of a mutawalli, the court shall issue notice to the Board at the cost of the party instituting such suit or proceeding.

(2) Whenever any wakf property Is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority notice shall be given to the Board by the court. Collector or other person under whose order the sale Ss notified.

(3) In the absence of a notice under Sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the court Sn this behalf.

(2) In the absence of a notice under Sub-section (2). the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the court or other .authority under whose order the sale was held.'

13. It is true, Sub-section (1) enjoins a court to issue a notice to the Waqf Board at the cost of the party instituting the suit or proceeding relating to a title to wakf property or the rightof a Mutawalli. but the failure to issue any notice by the court by itself will not render the proceedings illegal. It is to be remembered that the Waqf Board is in-charge of the administration of Waqfs in the State of Rajasthan and with a view to enabling it to discharge its functions properly the provision has been made for notice to the Waqf Board in a suit relating to a title to the Waqf property. This provision is made for the benefit of the Waqf Board or for that matter for the benefit of the Waqf itself. Sub-section (4) shows that if there is the total lack of notice to the Waqf Board in a proceeding which relates to any sale of Waqf property, such sale shall be declared void if the Board within one month of its coming to know of its sale applies to the court under whose authority the sale was held. Sub-section (4) contemplates filing of an application by the Waqf Board and on the application of the Waqf Board alone the sale of the property can be declared null and void. Therefore, it is clear that an alleged trespasser cannot be heard to say that for want of a notice to the Waqf Board the proceedings shall be rendered void. Therefore, there is no force in the objection raised by learned counsel for the respondents in this behalf. However. I may pause to mention that when the appeal first came up for hearing before me on 4-11-71, I ordered that the notice of the appeal be given to the Waqf Board as also to the Devasthan Commissioner, in accoradnce with Section 72 of the Rajasthan Public Trusts Act. 1959 about which I am going to say in a moment Devasthan Commissioner has not chosen to enter appearance, but the Waqf Board has appeared through Shri Pyarelal. Advocate who has fully supported learned counsel for the appellant. Indeed it was he who argued the appeal for most of the time.

14. The next contention of the learned counsel for the respondent was that notice was required to be given by the trial Court to Devasthan Commissioner under Section 72 of the Rajasthan Public Trusts Act. 1959. The Rajasthan Public Trusts Act. 1959 (Act No. 42 of 1959) received the assent of the President on the 22nd day of October, 1959. It came into force from 1-7-62 vide Government Notification No. F.3 F. (II) Rev. (A)/59 dated 28-6-62, published in the Rajasthan Gazette. Part IV-C. dated 28-6-62. It is noteworthy that the suit was instituted in the court of Civil Judge, Merta on 24-2-59. It was decided by the learned Civil Judge on 23-4-62. Thus, the Rajasthan Public Trusts Act, 1959 having been made applicable from a date after the decision of the case by the learned Civil Judge, there could beno question of the trial Court giving any notice of the proceedings to the Devas-than Commissioner. Apart from this Section 72 occurs in Chapter XIII of the Act According to Sub-section (3) of Section 1 of this Act Chapters I, II, III, and IV came into force at once and according to Sub-section (4) of Section 1 Chapters V, VI, VII, VIII, IX and X were to come into force on such date and to apply therefrom in relation to such class or classes of public trusts as the State Government may by notification in the official Gazette specify and for the purpose of such application the State Government may classify such .public trusts in the State on the basis of the income thereof or on the basis of the value of their total assets or on the basis of other financial factors and according to Sub-section (7) of Section 1 Chapters XII and XIII of the Act shall commence to apply in relation to the provisions of each of the other chapters on the date on which such other chapter comes into force. Now the Government issued the notification on 28-6-62 in the Rajasthan Gazette Part-C dated 28-6-62 specifying that tile Act shall be applicable to those trusts whose gross annual income is not less than Rs. 3,000/- or total valuation of assets is not less than Rs. 30,000/-. This provision was considered by me in a recent case Jagannath v. Satya Naraln, AIR 1973 Raj 13 and I held that the provisions of the Act apply only to particular kinds of public trusts namely, those whose annual income is Rs. 3,000/-or more or the valuation of the assets is not less than Rs. 30,000/- and the Act does not at all apply to such of the public trusts as do not satisfy the condition of valuation. In the present case the defendants had never asserted that this disputed strip of land satisfies this condition of valuation. As such notice to the Devasthan Commissioner was not at all required to be given regarding the suit. Any way. when the matter was raised here a notice was given to the Devasthan Commissioner, but he has not entered appearance. In the circumstances it cannot be held that the proceedings suffer from any defect for want of notice to the Devasthan Commissioner. This contention too is. therefore overruled.

15. I may then deal with the question whether the appeal before the learned District Judge was not properly constituted because only 9 of the 15 defendants had filed the appeal and 6 of 'the remaining defendants were not im-pleaded. Learned counsel for the appellants placed reliance on Kamala Prosad Sukul v. Chandra Nath Pramanik, AIR 1928 Cal 180 Attar Singh v. Debi Saihai, AIR 1937 All 243, Mt. Jagdei v. SampatDube, AIR 1937 All 796 and Labhu Ram v. Ram Partap. AIR 1944 Lah 76 (FB).

16. In AIR 1928 Cal 180 the suit was for possession with mesne profits against a large number of defendants . who belonged to two classes namely, landlord-defendants and the tenant-defendants. The plaintiff contended that some of the defendants of the second class were not impleaded in appeal three had died and the fourth was not impleaded. It was in this context that the learned Judges observed that in an action for mesne profits against the trespassers while it is open to the plaintiff to proceed against one or some or all of several of the trespassers at his own choice, once a decree has been obtained, it is the decree in its entirety that may be challenged on appeal and not otherwise, for so long as the decree against some remains a final and operative decree and not subject to an appeal, even though it is not satisfied but is capable of execution, the plaintiff cannot proceed with the suit further and take an appeal as against the others.

17. In AIR 1937 All 796, the facts were that the suit was brought by the plaintiff for possession of a fixed rate tenancy and for mesne profits. The tenancy belonged to one Sital Dube ON his death it devolved on his widow. After the widow's death her daughter mortgaged the tenancy and subsequently sold the same. The plaintiff claimed the tenancy as reversioner of Sital Dubey. Some of the parties were left out in appeal. The learned Judge adverted to the provisions of Order 41, Rule 4. Civil Procedure Code and observed that Order 41. Rule 4. C.P.C, is based on two considerations: firstly to give the appellate Court full power to do justice to all parties whether before it or not. and secondly to prevent contradictory decisions in the matter in the same suit. He went on to sav that in order to apply Rule 4 it is essential that the decree appealed from should have proceeded on a ground common to all the plaintiffs or defendants and whole case is gone into in the appellate court at the instance of the parties representing all the necessary contentions in the case.

18. In the other case reported in the same Volume at page 243. the facts were that there was a joint decree in favour of the plaintiff and the defendant No. 2. The other defendants went up in appeal but by oversight omitted to add defendant No. 2 as respondent in appeal against the plaintiffs. It was indicated that the remedy was by way off a fresh appeal with an aoplication under Section 5, Limitation Act and the court had power to allow such appeal againstsuch defendant on sufficient cause and to try both appeals simultaneously. It was in this context that the learned Chief Justice observed that when the decree was against the plaintiff and one of the defendants jointly and the appeal was filed only against the plaintiff the defendant could not be ioined as respondent after limitation. This case is not helpful for consideration of the present matter.

19. In AIR 1944 Lah 76 (FB) thesuit was filed on behalf of a Joint Hindu Family. The members were fighting cause in their individual rights and the learned. Judges observed that the manager in that event would not represent the whole family effectively. In that case the defendants who were the original parties to the suit were not impleaded in appeal by the other defendants till after the expiry of the period of limitation. An application under Order 41, Rule 20 was made and it was observed that this provision did not give a right to the appellant to make the application and it was in court's discretion to add any party in appeal.

20. In the present case, it is to be noted that the suit was filed against the 15 defendants not in their individual capacity but as representing the Hindus of Merta City under Order 1. Rule 8, C.P.C. The individual interests of the defendants as such were not there. Therefore when the defendants were being sued in a representative capacity and if six out of 15 defendants were left out then that would not be fatal to the maintainability of the appeal. In such a case the court could very well resort to the provisions of Order 41. Rule 4, Civil Procedure Code. The appeal would yet be in the representative capacity for and on behalf of the Hindus of Merta City. I therefore, overrule this contention of the learned counsel for the appellants.

21. Then I may deal with the question whether the Government andthe Municipal Board. Merta City were necessary parties to the suit. Learned counsel for the respondents argued that the plaintiffs had not produced any title deeds for the disputed strip of land and their case was based on long possession. Therefore, the question of title could not be effectively adjudicated upon in the absence of the Government or the Municipal Board. Merta City. Now. it is true the plaintiffs have not produced any title deeds, but long possession may be evidence of title as well. A person who is in long possession of property can undoubtedly maintain a suit to turn out a trespasser on the property, as it is the trespasser who is to show a title better than that of the plaintiff, if the plain-tiffs long possession is otherwise esta-bished. In the absence of the Government or the Municipal Board the decree may not be binding on them, but the defendants in the case cannot be heard to say that the suit cannot proceed without the Government or the Municipal Board being made a party to the suit I. therefore, do not find any force in this contention either.

22. The other questions that fall for determination in the case are: (1) about the ownership and possession of the suit land. (2) whether there were 'Devils' standing on this disputed lands, if so, for what time and how many. (3) the next question would be what rights could be claimed by the defendants qua these 'Devils' or stone slabs whatever they are and particularly whether the defendants can claim a right to go over the land for worshipping the 'Devlis' and. if so. how their visits are to be regulated. (4) whether the plaintiffs are entitled to any mesne profits and if so how much, (5) whether an injunction be issued against the defendants for not interfering with the proposed opening of the door in the mosque towards the suit land, and (6) finally it will have to be examined what relief would be appropriate, if at all.

23. So for as any title deed Ssconcerned the plaintiffs have not produced any document of title. However, the two courts below have concurrently held that the plaintiffs were in. long possession of the suit land or 'Khancha'. The plaintiffs have produced the rent notes Exs. 5. 7, 8, 9. 10, 11 and 12 which go to show that the plaintiffs have been enjoying this suit land as their own property and have been deriving rent therefrom. Some of the rent notes are by Hindus. Apart from this there are the two resolutions of the Municipal Board, Merta City, Exs. 4 and 6 which again go to show that the suit land was in possession of the plaintiffs. No sufficient reason has been shown for not accepting this finding of fact in second appeal. The finding given by the learned District Judge on the question may be put in his own words:--

'In this case both the parties are Muslims representing the Masjid as well as Hindus and so this question has somehow or other had taken a communal colour and so tile witnesses who are produced by one party have the tendency to support that party and in this way these witnesses produced by each of the party can be called partisan witnesses and under such circumstances it is the duty of the court to take a detached view of the circumstances of the case and arrive at the judgment on the inherentprobabilities which are present in the case, and so looking to the evidence that has been produced by the parties I come to this irresistible conclusion that the Khancha was only in the possession of the tenants of the plaintiffs who had used this Khancha for the purpose of shop till such time when the market was not enclosed and the articles of trade of the trader was not removed by him. The learned counsel for the defendants had argued that at either sides of the suit Khancha there are shops of Bankidass Moolraj and Bhanwarlal who have secured pattas from the Government and had the suit Khancha belonged to the plaintiffs? The plaintiffs must have got patta of this suit Khancha from the Government. But the plaintiffs had admitted that they have not received yet the patta of the suit Khancha from the Government and by any stretch of imagination it cannot be said that the plaintiffs are the owners of this land mere on the strength of the rent notes which does not in any way bound to the defendants. This contention of the learned counsel for the defendants would have forced, if it was taken by the Government But here the Government is not a party and so far as defendants are concerned they are not entitled to raise this point because in comparison to them there is a evidence produced by the plaintiffs in the shape of rent notes Ex. 11 etc. and Ex. 4 and Ex. 6 resolution of the Municipal Board which eo to prove the possession of the suit Khancha excluding the place where Devlies are situated and so it cannot be said that suit Khancha was not in the possession of the plaintiffs during the time when the shops are opened but of course the defendants had customary easement to worship the Devlies which will be discussed when I will take the point No. 2.'

Learned counsel, however, underlines that the plaintiffs were found to be in possession of the suit 'Khancha' excluding the place where 'Devils' are situated. It is true. 'Devils' have been found to be existing on the suit land nevertheless the land was in possession of the mosque and at best only some persons used to go over the suit land for the purpose of showing reverence to the 'Devlis' which question I will be discussing in a moment.

24. The next question is aboutthe 'Devlis'. at what time they were putthere and about their number. According to the plaintiffs. these were onlystone slabs freshly put and they hadno religious significance for the Hindus.On the other hand, learned counsel forthe respondents attaches considerablevalue to the existence of the 'Devlis'which, according to him. were being worshipped by the Hindus. The courts below have concurrently found that two of the 'Devlis' were in existence for a long time, but 4 were introduced around 1956 or after that. This is what the learned District Judge has found:

'So there is definite variation in the pleading and proof of the plaintiffs and it has been established beyond any shadow of doubt that when the dispute of the suit Khancha was not in vogue there is a clear admission of the plaintiffs, as have been discussed above and that shows the real state of affairs in the mind of the plaintiffs at that time and that was that they were not the ordinary useless slabs but were Devlis such as P.W. l Mohammed Mulla had admitted in his examination in chief that he had been nearly 18 years before two slabs which were instituted in the Khancha and in the cross-examination he had admitted that when this Khancha was given to Mool Raj at that time two Devlies were present and he had also admitted that whatever has been written in Ex. AA-1 might be correct. Now this Ex. A-l is the document executed by Moolraj in favour of the members of the Managing Committee whereby Moolrai had taken this Khancha from Managing Committee and it is dated Smt 1983 Jeth Vadi Igharas and the witness P.W. 1 Mohammed Mulla had acknowledged that when Mpolraj occupied this Khancha at that time two Devlies were present and so it can be said without any fear of contradiction that two Devlies were in existence much before Smt. 1883. This witness was asked to make it clear as to what are the true facts by the learned counsel for the plaintiff, because he had said in the examination in chief that the slabs were there since 18 years and in the cross-examination he had said that when Moolraj have this Khancha from the Managing Committee two Devlies were there, the witness had replied that the Devlies were there in the Khancha since 18 to 20 years and so the learned counsel for the plaintiff had submitted that the witness had cleared his position and so this fact should only be taken into consideration that two Devlies were in existence since 18 years and the learned Civil Judge was also satisfied by the explanation of the witness and so this court too must accept this explanation.'

25. The above passage leaves no room for doubt that two of the 'Devlis' were in existence for long and before any dispute had arisen between the parties but 4 'Devlis' or slabs whatever they might be called, is a later development. This is a clear finding of factbased on evidence and in second appeal I am not prepared to go behind it as it is clearly supported by evidence on record.

26. The next question is what is the significance of these 'Devils', whether the defendants have been able to establish that they had been visiting these 'Devils' and worshipping them. 'Devils' are nothing but stone slabs with some images on them. They often contain Inscriptions, There is evidence that one of the images was of a donkey with an inscription that the 'Bawris' shall not undertake trading in tobacco. Sometimes 'Devils' were nothing but edicts or injunctions issued by a representative body of a caste or community for their own people and for posterity. Many times when a tenantry of a particular class would be annoyed with the Jagir-dar on account of his excesses that class of tenantry would leave the village altogether and while leaving put an inscription with the face of a donkey in-juncting their own people and their descendants from ever inhabiting that village. Such an injunction was known as 'Gadotra' in the former State of Marwar. The idea in putting up the 'Devil' with the inscription was to perpetuate the injunction for the people of that class and their posterity.

27. Then 'Devlis' are fixed for showing reverence to a hero who had sacrificed his life for a noble cause. This is well known and one can take judicial notice of it. In Mandore. which has historical importance, there are big 'Devals' (monuments) which contain 'Devils' therein. Then there may be 'Devils' which may contain the figure-head of some deity or Sun or Moon. There Ss difference of opinion in the Hindu Shas-tras about how an image is sanctified-Idol or image as such has no sacredness in it. For example, a person dealing In the sale of idols or images may have a number of them stored with him. but they do not. without anything more, acquire any sanctity. There is the ceremony of installation of an image or idol and in many cases there may be 'Jalyatra' and that alone will make the idol or image representative of the deity or God which it is intended to represent and then it will acquire a personality of its own. However this is not to say that a class of Hindus and particularly those drawn from the lower strata would not start showing reverence even to idols or images found at public places even without the idol or Image having been sanctified according to the Shas-tras. As a unique example I may quote what happens to the statue of late Sir Partap Singh of Jodhpur which is infront of the former Jodhpur Secretariat and now before the Collectprate. It is well known that late Maharaja was him self an Arya Samajist and never believed in idol worship and yet people drawn from certain class of Hindus show reverence to the statue and even make offerings or invoke his blessings. Likewise, in the Heroes Hall at Man-dore people show reverence to the images or idols of Heroes. One cannot question the belief of a particular section or class of people on ground of rationalism and if one shows reverence to a particular slab of stone even that can-not be interfered with. On the roadside one often comes across just a slab of stone with vermillion on it and some Hindus particularly those drawn from the lower strata show reverence and worship it thinking it to be the representative of a particular deity or God. No particular shape is needed for that stone. For some just a piece of stone may be considered to be the representative of 'Bhairav' or of some 'Bhomia' whose spirit may be believed to be very much there residing in that piece of stone. As Sis well-known Hinduism is known by its tolerance and catholicity and diverse beliefs lie in its fold. There Is an opinion in the country that to start with Hinduism was no religion as such but those who came to live by the side of Indus also known as 'Sindhu' came to be known as Hindus. ^^l^^ became ^^g^^ in course of time and by the manner of speaking.

28. Learned counsel for the appellants as well as learned counsel for the Waqf Board argued with vehemence that there is variance between pleading and proof regarding the so-called right of worshipping these 'Devlis'. Learned counsel pointed out that in the written statement it had not been pleaded that any one was worshipping these 'Devlis' and yet evidence was led by the defendants that the Hindus were worshipping the 'Devils' on the ceremonial occasions like Makar Sakranti and others. It may be mentioned that in the present case the trouble arose in 1956 on the occasion of Makar Sakranti (14th January, 1956). However, it Is noteworthy that in the written statement it has been averred that these 'Devils' have religious significance and so also the inscriptions and the people had been visiting them. Learned counsel for the respondents, therefore, submitted that the written statement was comprehensive enough as the term 'religious significance' would comprise worshipping too.

29. I may not accept the argu-ament of the learned counsel In such wide terms. A thing having religioussignificance may not necessarily be worshipped. Religious significance may be there in a thing even without worshipping it. It is well-known that an Arya Samajist would not be performing any worship as such, nevertheless it cannot be gainsaid that the place, where he has his prayers or performs 'Homa' or where religious discourses may be held, will very much be a place of religious importance or significance. Indeed, the term 'religious importance' has a wider connotation than worship. One may have reverence for a thing or place religiously without actually worshipping it. One person may show reverence by worshipping a thing yet another may show reverence even without worshipping it Then it has to be borne in mind that these were the pleadings drafted for a Muffasil court and should not be construed too strictly. One has to look to the gist or substance of the matter. So looked at it cannot be said that the lower courts should not have considered the evidence regarding worshipping of the idols. Issues Nos. 9 and 10 would cover the matter.

30. In the circumstances I am of opinion that the status quo as it was before 1956 should remain and the new changes introduced thereafter should not be allowed. Therefore. I see no reason to disturb the conclusion of the learned District Judge on this point. The suit land should remain open as it is and the plaintiffs may let it out as they used to do, but no new door should be allowed to be opened on this land as that would change the status quo.

31. I may then consider the question whether mesne profits should have been allowed to the plaintiffs. The learned Judge has given no good reason for not allowing mesne profits to the plaintiffs. All that he has said is:

'According to the defendants the suit Khancha never belonged to the plaintiffs but it was found that It is not so and so considering all these facts and the circumstances of the case it could be said that both the parties were sail-Ing in the same boat and so it would be better that the costs in this case would be made easy and the defendants will also be not charged for any mesne profit and let us hope that the status quo which was in vogue previously will be strictly maintained.'

The trial Court had allowed mesne profits to the plaintiffs and for disturbing its conclusion it was expected of the learned District Judge to have given cogent reasons. When the defendants had removed the tenant of the plaintiff i.e. Ismail Bharbhooja and thereafter the plaintiff could not have let in anyfresh tenant or bring back Ismail Bhar-bhooja, the defendants were liable for the mesne profits. The criterion for determining mesne profits is what rent the property could have normally fetched since it has been found by the trial' Court that Ismail Bharbhooja was paying Rs. 11/- as rent per month, this should have been the measure for awarding mesne profits.

32. The last question is as to how the rights of the respective parties should be regulated. The two of the 'Devlis' shall stand as they were and as the suit 'Khancha' was being utilised by the mosque for earning rent, people should not visit the 'Devlis' during the shopping hours and here the court below has taken a reasonable view of the matter. If while the business of buying or selling is going on on the suit 'Khancha' any person were to visit the 'Devlis' that may create trouble and seeds of trouble which may assume enormity should not be allowed to be sown. Injunction being a discretionary matter it is open to a court to specify in what terms injunction to meet a particular situation be issued. Therefore, the court below cannot be said to be in error if it forbade the defendants from visiting the two 'Devlis' during the shopping hours. They have been left free to visit the 'Devlis' for showing reverence bul if the defendants were to show reverence by creating a kind of noise then they shall avoid the time of the 'Namaz' in the mosque.

33. The last question is as to which of the 'Devlis' are to be kept and which are to be removed. The lower courts were faced with the difficulty as to which of the 'Devlis' were existing from before 1956 and which had been newly introduced thereafter. There is no definite evidence to come to a conclusion on this aspect of the case, but here the matter has been rightly left to the defendants to decide which of the 4 'Devlis' they would like to remove. It is common knowledge that even when an idol is stolen from a temple, new idol is put in its place and the stolen one or which is desecrated or broken may be considered as discarded. Therefore, it has been rightly left to the defendants to remove such of the 4 slabs as they consider proper and they may fix them elsewhere, but the learned District Judge was not right in ordering that if the defendants failed to remove 4 of the 'Devlis' then the plaintiffs shall remove them. If the defendants do not remove them then the execution court, If moved, will proceed to execute the decree according to law by appointing a suitable person as Commissioner tor the purpose.

34. In the result, therefore. I allow the appeal in part and modify the decree of the learned District Judge as follows:--

(1) that the defendants shall remove 4 out of the 6 'Devils' and on their failure to do so the plaintiffs may have them removed through court, according to law;

(2) that the defendants shall not visit the 'Devils' during shopping hours, but shall be free to visit them for showing reverence at other times though the defendants shall not make noise while showing reverence, during the time of 'Namaz' in the mosque;

(3) that the plaintiffs are entitled to have Rs. 11/- as mesne profits from the defendants from the date of the suit to the date of the decree in appeal.

35. The cross-objections are dismissed,

36. The parties are left to bear their own costs throughout.

37. Learned counsel for the appellant and learned counsel for the Waqf Board orally prayed for leave to appeal under Section 18 of the Rajas-than High Court Ordinance, 1949, but in the circumstances of the case I am not inclined to grant the leave which, is accordingly hereby refused.


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