OSMAN UMAR Vs. MALAL ALIBHAI NATHU

JUDGEMENT

(1.) This appeal by special leave arises from the judgment and order of the division bench of the Gujarat High court made on 12/2/1976 in LPA No. 67 of 1974. In Jamnagar alias Nawanagar in Saurashtra region of Gujarat State, there are four sets of Muslims by name, Gujarati, Aab, Sidi and Patni. The appellant representing Patni Jamat made an application on 12/11/1951 to the Mamlatdar for grant of occupancy certificate in support of Surveys Nos. 314 and 316 of the land for use of kabristan etc. The Mamlatdar granted the certificate. Subsequently, on representation made by other Jamats, their names also came to be included and that had given rise to the endless litigation culminating in this case. The trial court in Suit No. 151 of 1966 decreed the suit granting declaration that all the Jamats are jointly entitled to use the property for kabristan etc. Perpetual injunction was granted against the appellant for interfering with the common use. On appeal and second appeal, the trial court decree stood reversed. In LPA, the division bench under the impugned judgment, restored the decree of the trial court. Thus, this controversy.

(2.) It is contended that the civil court has no jurisdiction over the matters on which the Mamlatdar had power to grant occupancy certificates and that, therefore, the division bench was not right in reversing the decree of the appellate court and that of the learned Single Judge and restoring the decree of the trial Judge. The High court has noted thus:

(3.) In view of this finding the necessary conclusion is that the occupancy certificate issued on the application dated 12/11/1951 does not bind the respondent. It is not in dispute that in 1947 the application was moved jointly by all the Jamats and sanad was given by the erstwhile Maharaja for common use by all the four Jamats. In that view of the matter, the finding recorded by the High court, as referred to earlier, is perfectly legal and does not call for interference.