WAJAH Vs. ABDUL HAQ SHAH AND OTHERS

JUDGEMENT

(1.) These two appeals arise out of two suits which were decided by the Munsif under the same judgment and first appeals arising out of which were also heard and decided by the Civil Judge under one judgment. The dispute in the two appeals relates to Khanqah and Mazar chiragh All Shah at Santhal in Tehsil Mawabganj, district Bareilly. Abdul Razzaq All Shah was the last sajjadanashin of this khanqah. He died sometime in 1931. Two persons Abdul Haq, the respondent, in these two appeals and Wajah-ul:Karim, the appellant, came forward as rival claimants for this office. Each one of them contended that he was nominated as such by the last sajjadanashin, Abdul Razzaq Ali Shah. Suit No. 484 of 1953 was filed by Wajahul Karim, the appellant in these appeals against Abdul Haq and two other defendants asking for an injunction restraining the defendants from interfering with the discharge of his duties as sajjadanashin. Suit No. 734 of 1953 was filed by Abdul Haq against Wajah-ul-Karim and two others with a similar prayer. The allegations made in the two plaints by these two rival claimants provided their defence in the suit filed by the other.

(2.) The Munsif held that Wajahul-Karim was not nominated sajjadanashin by the last holder of that office and his suit was subsequently dismissed on that ground. In connection with the suit filed by Abdul Haq, it was held that he was nominated as sajjadanashin and that consequently he was entitled to the relief asked for by him. The contention of Wajah-ul-Karim against the appointment of Abdul Haq is that he was a minor when the appointment was made and the appointment of a minor as mutawalli or sajjadanashin was invalid in law. It was held by the Munsif, however, that a minor could be appointed Mutazvani or sajjadanashin and that Abdul Haq's appointment was consequently not vitiated on that account. Another plea raised by Wajah-ul-Karim was that Abdul Haq was not in possession and could not, therefore, ask for an injunction. The Munsif held that Abdul Haq was net in possession, but he was of opinion that that circumstance did not disentitle him to claim the relief of injunction as prayed for by him. Abdul Haq's suit was, therefore, decreed. Wajah-ul-Karim went up in appeal in both the suits, but the appeals were dismissed by the first appellate court, and hence these second appeals by him. The finding that Wajah-ul-Karim was not appointed or nominated as sajjadanashin by Abdul Razzaq Ali Shah is a finding of fact and cannot be challenged in second appeal and no attempt was in fact made on behalf of the appellant to do so. That being so, Second Appeal No. 2154 of 1955 which arises out of Suit No. 484 of 1953 has no force and is liable to be dismissed on that account.

(3.) The appellant, however, pressed the other appeal and raised the following two questions during the hearing of the same:-