ABDUL KARIM KHAN Vs. MUNICIPAL COMMITTEE RAIPUR

JUDGEMENT

(1.) This appeal arises from a suit filed by the appellants who are the representatives of residents of Nayapara Ward in particular and of the Muslim community of Raipur in general, in which they claimed an injunction restraining the respondent, Municipal Committee of Raipur, from committing acts of encroachment on their rights and the rights of the Muslim community in holding Urs and other ceremonies on the plot in suit. It appears that at Raipur, there is a piece of land called "Fazle Karim's Bada" Khasra No. 649 measuring 4.62 acres. Inside this Bada, there are three or four Municipal Schools. The office of the Electric Power House is also located in one corner of the land, Behind the school, there is a Pakka platform known as "Syed Baba's Mazar." Near the Electric Power House, there is a raised earth platform on which there is a flag. This flag is called "Madar Sahib's Jhanda". Surrounding this land, there is a brick wall which was made by the respondent several years past. According to the plaint, Urs function is held every year in front of Syed Baba's Mazar for the last several years. On or about the 22nd October, 1956, the employees of the respondent started digging foundation at the places A, B, C and D shown on the map attached to the plaint. These digging operations were commenced under the directions of the respondent, because the respondent intended to construct another school building on the plot. The appellants then served a notice on the respondent to desist from carrying on the digging operations on the ground that the properly on which the said operations were being carried out, was a part of the Wakf property. When the respondent did not comply with the requisition contained in the said notice, the present suit was filed by the appellants on October 29, 1956. This suit has been flied under O. 1, R. 8 of the code of Civil Procedure.

(2.) The case of the appellants is that the plot of land in suit was old Kabrasthan known as "Chuchu's Takia", and is a permanent inalienable wakf property. On this plot are tombs of renowned saints like Syed Baba, and Madar Sahib's Jhanda. On a part of the plot, even year Urs and other religious functions are performed. In fact, the land has been registered under the Madhya Pradesh Public Trust Act (No. So of 1951) (hereinafter called the Act) as trust property; as such, the respondent can claim no right or title to the said land. That is the basis on which the appellants claimed injunction against the respondent.

(3.) The respondent disputed this claim. It was urged in the written statement filed by the respondent that the land was never and could never be wakf property. There was no tomb on the land. There are only two so-called tombs but they have no significance. The Urs is of very recent origin and it is allowed to be held with the licence of the respondent. The plot originally belonged to private persons and had been acquired by the Government in land acquisition proceedings in 1910-11. The respondent got the said land from the Government in 1922. In 1932-33, the Deputy Commissioner fixed rent of the land which is being paid by the respondent eversince. On this land, the respondent has constricted some schools, and a part of the land which is lying vacant is allowed to be used by the people of the neighbourhood for traffic. The respondent thus has full right to construct on its own plot of land. The representative character of the appellants was disputed by the respondent and their right to file the present suit was challenged.