HAJI MOHD SAYEED Vs. ABDUL GHAFOOR

JUDGEMENT

(1.) THIS is a plaintiff's second appeal. It arises out of a suit for injunction and some other reliefs. The suit was brought in a representative capacity against a number of defendants who were also sued in a representative capacity. Both the plaintiffs as well as the defendants are Muhammedans residing in the town of Mail Nath Bhanjan in the district of Azamgarh. It appears that among the muhammedans of this town strained relations have existed between the two sects of Sunni muslims -- one calling itself Ahl-e-Hadis and the other calling itself Hanafi. The former sect is also nicknamed as Wahabi by the latter. The present suit marks the culmination of a long-standing dispute between them. There appear to be differences between the two sects in the mode of offering prayers and rituals connected therewith. It is said that the ahl-e-Hadis recite the 'surai Pateha' or the first chapter of the Quran behind the Imam in a loud tone, but the Hanafis do not recite it. Further it is said that the Ahl-e-Hadis pronounce the word 'amin' after 'surai Fateha' in a loud tone, whereas the Hanafis recite it in an inaudible or low tone. The Ahl-e-Hadis perform the gesture of 'rafu'ul-Yadain' (raising of the, hands) when pronouncing the Takbir, viz. , the words 'allaho Akbar' (God is Great) and also every time before bending during the prayers, whereas the hanafis raise their hands during 'takbir only once and not higher than the ears. During the prayers the Ahl-e-Hadis fasten their hands over the chest, whereas the Hanafis fasten their hands oyor the navel. The differences between them had given rise to both civil as well as criminal litigation in the past. In the mosque in dispute the hanafis had been offering prayers behind an Imam of their own for a long time past. Adjoining this mosque there is an Arabic school called the Madrasa-i-Alia which was established by the Ahl-e-Hadis. In this Madrasa (school) the Abl-e-Hadis used to educate students of their own sect. This madrasa faces the mosque on the east with only a 'galli' intervening the two. The suit was brought, by the plaintiffs on the allegation that the members of their sect had been offering prayers in this mosque in the past, and that they had an apprehension that the members of the hanafi sect would restrain them from performing their prayers in future. They accordingly claimed a relief that the defendants should be restrained from interfering with the rights of the plaintiffs to offer prayers in a congregation of their own and according to their own rituals. It was further alleged by the plaintiffs that there were certain rooms in the said mosque which were constructed by them to be used as a hostel for the students of madrasa-i-Alia. They claimed possession over these rooms. The plaintiffs further alleged that there was an apprehension that their right of way to Madrasa-i-Alia through the 'galli' which intervened between, the school and the mosque would be interfered with. They, therefore, prayed for a further injunction to the effect that the defendants be restrained from interfering with their right of way.

(2.) THE suit was resisted by the defendants on a number of grounds. They alleged that the mosque was founded by a Hanafi for the purpose of enabling the Hanafis to offer prayers in the same. They further alleged that in the town of Mau there was prevalent an old custom according to which the Hanafis and the Ahl-e-Hadis had their separate mosques, and the two sects offered their congregational prayers separately in their respective mosques. The mosque in question was a Hanafi mosque, and the supervision, management and control of the said mosque had always vested in the Hanafis and they were accordingly entitled to hold congregational prayers in it. For the aforesaid reasons they denied that the Ahl-e-Hadis had any right to hold congregational prayers in it. They further alleged that the rooms in question belonged to the mosque, and were a part and parcel of it and denied that they constituted a hostel of the students of Madrasa-i-Alia or were ever used as such.

(3.) THE trial Court held that the plaintiffs were not entitled to hold prayers in the said mosque in a congregation of their own. It further held that- the rooms in question appertained to the mosque, and did not constitute the hostel of the Madrasa-i-Alia. It, accordingly, dismissed the plaintiff's suit for injunction and possession in this regard. It, however, held that the plaintiffs had a right of way to the Madrasa-i-Alia through the northern and southern gates of the passage adjoining the mosque, and gave a declaration in favour of the plaintiffs to that effect.