1. The suit in which the second appeal has arisen was instituted by the plaintiffs representing the Shafie residents of a place called Pudunagaram in Koduvayur Amsam in Palghat taluk under the provisions of Section 30, Civil Procedure Code (1882), against defendants as representatives of the Hanafis of the same locality praying for an injunction restraining the latter from enlarging a certain howth or reservoir attached to a mosque, which has been found by both the Courts to be in their exclusive management ever since another mosque was built a long time ago by the Shafies in the same compound, from using some granite stones lying in the compound in the construction of the reservoir and from obstructing a pathway extending from the gate of the older mosque by the side of its reservoir to the mosque which is in the exclusive possession of the plaintiffs alleging that the extension of the reservoir would obstruct the right of way. One of the questions raised by the issues, framed by the District Munsif, was whether the mosque, in which the Hanafis generally say their prayers, and the reservoir attached thereto, which is intended to enable the congregation to perform ablutions, are the common properties of the plaintiffs and the defendants. The Munsif found that as the Hanafis have been in exclusive possession of and using this mosque ever since the other mosque was built by the Shafies, that is, for a period of more than 12 years, the latter have lost their right in the older mosque and its reservoir. The Subordinate Judge, in appeal, has confirmed this finding. It seems to us that the finding mast be understood with reference to the subject-matter of the litigation and the real character of the claims put forward by the parties. As we read the pleadings, the Hanafis only claim exclusive right of supervision and management of the mosque in which they habitually say their prayers with its appurtenant reservoir while the Shafias claim a similar right with respect to the mosque in which they say their prayers, and not that either of the parties claims any rights of ownership in these places of public worship as if they were ordinary property or that one party denies the right of the other party to say their prayers in the mosque to which the former habitually resort for their prayers. And Mr. Rosario, who appeared for the respondents, and Mr. Ananthakrishna Ayyar, who appeared for the appellants, both very properly agreed before us during the course of argument that the finding of the lower Courts on this point must be understood in the sense we have indicated. It will suffice for us, therefore, to point out that according to the accepted view of the Sunni Schools, which comprise the followers both of Imam Abu. Hanifa and Imam Shafie, it is in the very conception of a wakf--which is the name for a grant, by which mosques and similar institutions are dedicated--that all proprietary rights of men should be extinguished in the property so dedicated. The result, according to the theory of Muhammadan Law, is that proprietary rights in the subject-matter of wakfs become re-vested in God inasmuch as He is originally the owner of all created things and it is by His permission that men acquire rights therein so that when men's right ceases in a particular thing, it reverts to the proprietorship of God. (See Hamilton's Hidaya, Grady's edition, pages 231, 232.) Further, as it is the object of a dedication of the nature of a mosque that the public should say their prayers therein, it is not open to those who are charged with the superintendence and management of a mosque to exclude any Muhammadan who wishes to say his prayers in it, except on the ground of misbehaviour. This question arose in several cases upon a claim made by some Hanafis to exclude certain Muhammadans, known as Wahabis or Ahli Hadith, who do not attach themselves to any one of the recognized schools of theology, from mosques founded by Hanafis, on the ground that the former during prayers pronounced 'Amen' in a loud tone and practised rafaei yadain, i.e. raised their hands to their ears at certain stages of the prayer contrary to the ritual adopted by the Hanafis. But the Courts in India, and ultimately the Privy Council, have decided against such claim [see Fazl Karim v. Maula Baksh 18 C. 418; 18 I.A. 59; Ata-ullah v. Azim-ullah 12 A. 494; A.W.N. (1890) 179; Jangu v. Ahmad-ullah 13 A. 419; Abdus Subhan v. Kurban Ali 35 C. 294; 7 C.L.J. 433; 3 M.L.T. 191; 12 C.W.N. 289 and a claim of this nature would be still more untenable as between the Hanafis and the Shafies, both of whom belong to the Sunni school calling themselves Ahlus Sunnat wal Jamaat or the orthodox sect as distinguished from Ahlulbidat, i.e., innovators or heretics. The respective followers of Imam Abu Hanafi, Imam Shafie, Imam Malik and Imam Ahmad bin Hambul, no doubt, differ among themselves on certain points of canonical and municipal law, but such differences are treated as of minor importance compared with the essential principles of law and theology in which they all agree.
2. As regards the burial-grounds surrounding the two mosques, it is found that they originally belonged to the Hanafi and the Shafie residents of the locality and since the new mosque was built, the Hanafis have been burying their dead in the ground surrounding the old mosque and the Shafies have been using the ground surrounding the new mosque for the burial of their dead and that there were boundary marks dividing the two burial-grounds. This is not a finding which can be said to be sufficiently clear as showing that one party asserted a right to exclude the other party from use of the ground in which both had an interest. Nor is it clear that the Subordinate Judge meant to find that the burial-grounds are not dedicated to the use of the general public but are private burial-grounds belonging jointly to the descendants of those Shafies and Hanafis, who originally owned the land. On the other hand, the burial-grounds are spoken of as appurtenant to the two mosques which might suggest that they had been dedicated to public use. It would have been, therefore, necessary to call for clear findings on the questions whether the burial-grounds have been dedicated to the public or are private burial-grounds and whether one party asserted a right to exclude the other party from burying the dead in the ground attached to the mosques in their respective possessions and, if so, when, were it not that this appeal is concluded by the finding of the Subordinate Judge that the extension of the reservoir has become necessary for the proper use of the older mosque as a place of worship. Supposing the plaintiffs have a joint interest in the burial-ground and are entitled to say their prayers in the older mosque, it would not be open to them to object to the extension of the reservoir in the way proposed if such extension became necessary, as found, to enable the congregation to perform the necessary ablutions before saying their prayers. The Subordinate Judge seems to be doubtful whether a defined pathway, as claimed by the plaintiffs, exists at all by the side of the reservoir but, even if there is such a pathway, it is conceded that upon the allegations of the plaintiffs themselves, who claim to be proprietors in common of the burial-ground, there could be no question of easement. The plaintiffs claim the use of the pathway by virtue of their right as joint owners of the land on which the path runs, but it is not alleged that the destruction of a portion of the pathway by extending the reservoir would to any extent interfere with the user by the plaintiffs of the ground surrounding the old mosque for the burial of their dead, supposing they have such a right. It is found that there is another way, though somewhat longer, by which the plaintiffs can get access to the mosque to which they ordinarily resort for prayers and to the burial-ground attached to it and as the extension of the reservoir in question has become necessary, there can be no doubt that the lower Appellate Court was right in refusing to grant the injunction asked for by the plaintiffs. The plaintiff's claim to the stones is found to have become barred; there is no difficulty in our accepting that finding.
3. The appeal, therefore, fails and is dismissed with costs.