LAWS(ALL)-1984-7-42

SHAH MOHAMMAD SHABBIR ATA Vs. DISTRICT JUDGE LUCKNOW

Decided On July 12, 1984
SHAH MOHAMMAD SHABBIR ATA Appellant
V/S
DISTRICT JUDGE Respondents

JUDGEMENT

(1.) THROUGH this petition under Article 226 of the Constitution the petitioner prays that orders dated 10-7-1981 and 4-2-1982 passed by the learned Civil Judge and the District Judge, Lucknow, respectively and contained in Annexures Nos. 7 and 8 be quashed and they be directed to treat original suit No. 31 of 1966 to have abated on the death of the original plaintiff Mohd Hussain Jafri.

(2.) THE facts giving rise to this petition may briefly be stated thus : In the town of Salon in district Rae Bareli there exists an old "Khanqah" known as " Khanqah-e-Karimia Regular Suit No. 31 of 1966 was brought by Mohd. Hussain Jafri in the court of Civil Judge, Lucknow, against Shah Mohd. Shabbir Ata and another for a declaration and injunction. THE declaration claimed was that the said plaintiff be declared to be the legally constituted 'Sajjadanashin' of the said " Khanqah " and as such entitled to perform all the duties and functions without interference and disturbance by the defendants. THE permanent injunction sought was to restrain the said defendants from proclaiming themselves as " Sajjadanashin " of the said 'Khanqah' and from functioning as such or obstructing the plaintiff in the performance of his duties as 'Sajjadanashin' of the 'Khanqah'. It was contended in the plaint that there was a custom about the nomination of the successor ' Sajjadanashin ' by a sitting 'Sajjadanashin' and that the plaintiff was duly nominated 'Sajjadanashin' whereas the defendants were without right interfering in the plaintiff's performance of his duties and were themselves claiming to be holders of the office of ' Sajjadanashin '. THE claim was resisted by the defendants one of whom, however, died during the pendency of the suit. THE plaintiff Mohd. Hussain Jafri also died during the pendency of the suit and consequently an application was made by Ahmad Hussain Jafri who is opposite-party No. 3 in this petition and he claimed that he was the duly nominated " Sajjadanashin " and as such entitled to be brought on record as legal representative and continue the proceedings against the contesting defendants. He also sought to implead as proforma defendants all the sons, daughters and widow of the deceased 'Sajjadanashin' and asserted that they were being made proforma parties as the right to succeed to the office of 'Sajjadanashin' was by nomination and not by inheritance according to Mohammedan Law. THE surviving defendant Shah Shabbir Ata who is the present petitioner contested the claim of Ahmad Hussain Jafri to be brought on record. He denied the right of the original plaintiff to work as 'Sajjadanashin' and denied nomination in favour of Ahmad Hussain Jafri oppsite-party No. 3. He rather himself claimed to be a nominee of the former 'Sajjadanashin'.

(3.) LEARNED counsel for the petitioner has laid stress on the point that the right to the office of 'Sajjadanashin' was a personal right and it died with the death of the holder of the office and consequently the suit should abate. Reliance has been placed on a Division Bench decision in Gulzar Shah v. Sardar Ali Shah, AIR 1930 Lah 703 (2). In that case, however, the office of Mahant was to be held by a person who was duly elected by a specific body called 'Bhek'. The office was neither hereditary nor was to go to the 'Chela' of the former Mahant. On the death of the person claiming to be a Mahant an application was made for substitution by another person claiming himself to be 'Chela' of the deceased. It was held that the office was by its very nature a personal one dependent upon election and consequently the applicant could not be substituted as a legal representative merely on the ground that he was the Chela of the previous Mahant as his right to hold the office would depend on his election by the body called 'Bhek'. Substitution was accordingly refused. In the instant case it has not been denied that succession to the office goes by nomination by the sitting 'Sajjadanashin' and the present opposite-party No. 3 claimed to be so nominated. Similarly the present petitioner also claimed to be nominated though by a still previous 'Sajjadanashin'. The trial court on a consideration of the evidence found as a fact, atleast for the purposes of proceedings relating to substituion, that the opposite-party No. z was duly nominated by the immediately preceding 'Sajjadanashin' and left the question open for decision in that suit as to whether the immediately preceding 'Sajjadanashin' was himself a validly appointed 'Sajjadanashin' who could nominate the opposite-party No 3 claiming to be substituted as legal representative. The Lahore case has accordingly no application to the instant case and both the courts below before whom also this case was cited have rightly held it to be inapplicable.