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Khaji Dodda Khaji Sahib and ors. Vs. Chigamalla Nanjappa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1939Mad642; (1939)1MLJ909
AppellantKhaji Dodda Khaji Sahib and ors.
RespondentChigamalla Nanjappa and ors.
Cases ReferredIn Kasim Ali Khan v. Birj Kishore
Excerpt:
- - the appellants do not complain of the declaration granted by the district munsif to the respondents, but they object to the injunction restraining them from using the building as a mosque. a man' must enjoy his own property in a manner which will not do injury to others, but the erection of a mosque on land owned by muhammadans cannot be regarded as constituting an injury in law to persons of another creed. the continuance of the use of the building as a school is a matter which the muhammadan community of kunchur might very well consider. it can only suggest that the matter should receive the further consideration of the appellants, and in the interests of good feeling between the two communities we trust that it will......and they wish to utilize it for the purpose of a mosque. there is nothing unlawful in using this site for a mosque and therefore they are entitled to utilize it for the purpose. the right in the appellants to use this site for a mosque is so clear that authority is hardly necessary, but there is authority and of this court. in sesha aiyangar v. sesha aiyangar i.l.r.(1880) 2 mad. 143, turner, c.j., and forbes, j., held that in this country, where there is a great diversity of creeds, it would be intolerable if the members of a sect were not at liberty to erect a place of worship on their own property; because it was more or less contiguous to a place already occupied by a place of worship appertaining to another sect. the court pointed out that the people of any sect are at liberty to.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The Muhammadan community of the village of Kunchur, Bellary District, owns a piece of land in the Hindu quarter of the village. Some years ago they proposed to; erect on this land a Jumma Musjid, notwithstanding that there were already two mosques in the village. The proposal was greatly resented by the Hindus of the village, and in 1929 they filed a suit in the Court of the District Munsif of Hospet for an injunction restraining the defendants, who represented the Muhammadan community, from erecting the Musjid and a declaration of the unrestricted rights of the Hindus to hold religious, social, public and private processions 'attended with music' along the route on which the proposed Jumma Musjid was to be built. The suit was strenuously contested. The defendants set up a contention that a mosque had been erected on the site in 1910 but this had been demolished with a view to the construction of a new mosque. The District Munsif found that although the Muhammadans of the village had occasionally used the site for the purpose of offering prayers there had never been a mosque on the site and that it had never been intended that a mosque should be built thereon. In view of the feeling between the two communities he considered that it was not desirable that there should be a mosque on the site and although he allowed the construction of the new building to proceed, he issued an injunction restraining the defendants from using it as a mosque. At the same time he granted a declaration that the plaintiffs were entitled to take processions along this particular street. The defendants appealed to the District Judge, who by a judgment dated the 7th March, 1932, upheld the decision of the District Munsif. The defendants then appealed to this Court. The appeal was heard by Varadachariar, J., who confirmed the decrees of the lower Courts, but granted a certificate under Clause 15 of the Letters Patent permitting an appeal to a Bench. The appellants do not complain of the declaration granted by the District Munsif to the respondents, but they object to the injunction restraining them from using the building as a mosque.

2. That the Hindu community of Kunchur objects to the erection of a mosque on the site and that acute feeling will be aroused if the building is used as a mosque are not grounds which the law can recognise for the granting of the injunction. The Muhammadans of the village are admittedly the owners of the site and they wish to utilize it for the purpose of a mosque. There is nothing unlawful in using this site for a mosque and therefore they are entitled to utilize it for the purpose. The right in the appellants to use this site for a mosque is so clear that authority is hardly necessary, but there is authority and of this Court. In Sesha Aiyangar v. Sesha Aiyangar I.L.R.(1880) 2 Mad. 143, Turner, C.J., and Forbes, J., held that in this country, where there is a great diversity of creeds, it would be intolerable if the members of a sect were not at liberty to erect a place of worship on their own property; because it was more or less contiguous to a place already occupied by a place of worship appertaining to another sect. The Court pointed out that the people of any sect are at liberty to erect on their own property places of worship, either public or private, and to perform worship provided that, in the performance of their worship, they do not cause material annoyance to their neighbours. A decision to the same effect was given by the learned Chief Justice and Muttuswami Aiyar, J., in Parthasarathy Aiyangar v. Chinnakrishna Aiyangar I.L.R. (1882) 5 Mad. 304. In Kasim Ali Khan v. Birj Kishore 2 N.W.P. Rep. 182 (a case decided by the High, Court, North-West Provinces, when Turner, C.J., was officiating as the Chief Justice of that Court) the learned Chief Justice observed:

The land on which the temple is erected is the property of the respondents, and they are at liberty to build what structure they please upon it. Nor can the Courts by anticipation grant a decree prohibiting them against annoying the appellants. It must be shown that some substantial annoyance, and one which the Court can recognize, has been actually committed, before the Court will interfere.

3. These authorities were quoted to Varadachariar, J., but he did not consider that he was justified in interfering with the injunction which had been granted. In the course of his judgment he referred to the maxim sic ultre tuo ut alienum non laedas, but this maxim can have no application here. A man' must enjoy his own property in a manner which will not do injury to others, but the erection of a mosque on land owned by Muhammadans cannot be regarded as constituting an injury in law to persons of another creed. Of course, if the Muhammadan community utilizes the building in a mariner which does in fact create a nuisance then the law will interfere, but it cannot be said that the use of a building as a mosque will amount to a nuisance.

4. Much has been said in argument with regard to the right of the Hindu community to hold processions along the street and it is said that if a mosque is erected attempts will be made to interfere with this right. This argument is really without foundation because the respondents have already obtained a declaration in their favour. The appellants have not challenged the respondents' right to this declaration and it is binding upon them. The case has to be decided from the point of view of legal right and there can be no doubt that the injunction which has been granted does infringe the rights of the appellants. It must therefore be dissolved.

5. I would, however, add this. The new building which has been erected on the site has up to now been used as a school. This is the result of the injunction granted by the District Munsif. The continuance of the use of the building as a school is a matter which the Muhammadan community of Kunchur might very well consider. They have, as I have already pointed out, two mosques in the village and it has not been suggested that these two mosques are insufficient for the Muhammadan community of Kunchur. The Court can, of course, give no direction in the matter. It can only suggest that the matter should receive the further consideration of the appellants, and in the interests of good feeling between the two communities we trust that it will.

6. The decree of the District Munsif will be varied by the omission of the injunction, but the declaration in favour of the respondents will stand. The appellants having succeeded with regard to the injunction are entitled to their costs in this Court and in the District Court. So far as the first Court is concerned the parties will pay their own costs.


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