ABDUL AZIZ VALAD HAJI SUBHANHUSSAINBI HAJI SUBHAN Vs. MAHOMED IBRAHIM GHATKARI ANDSAYAD KHAIRUDDIN KUTUBUDDIN KAJI

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment of Mr, Justice Lokur comfirming the decree of the lower Court. The appellants are some of the original defendants in a suit by the plaintiffs for partition of certain lands and for a declaration that they were entitled to the management of the devasthan called Peer Mahi Taj and its property as mujawars thereof. The property consists of two fields, survey Nos. 773 and 590. With regard to the first field the question was whether it was the private property of the mujawars or it belonged to the Peer. Both the lower Courts came to the conclusion on evidence that it belonged to the Peer and was not the private property of the mujawars. Mr. Justice Lokur agreed with that finding. There is no question of law involved in that finding.

(2.) WITH regard to survey No.590, it is contended on behalf of the appellants that the plaintiffs were not receiving the income thereof for a very long time, and the defendants, therefore, whot performed the service as mujawars, and who, it is admitted, devoted the income of that field for the shrine, were entitled to hold it to the exclusion of the plaintiffs. There was no plea of adverse possession in the lower Courts, and therefore, there was no issue upon it. The only issue framed was whether the plaintiffs were entitled to the injunction in respect of this survey number. The finding of the lower Court was that the plaintiffs were entitled in their turn to perform the duties as mujawars and as such they were entitled to spend the income of this field for the purposes of the institution. The defendants admit that the income could not be appropriated by the mujawars as their private property. That being so, no question of adverse possession arises. The plaintiffs are held entitled to do service as mujawars by rotation, and they are entitled to realise the income and spend it for the purposes of the institution. It is clear, therefore, that Mr. Justice Lokur was right in holding that the plaintiffs are entitled to the relief sought by them.

(3.) THE trial Court as well as the appellate Court found that Dada Saheb was entitled to one-third share in the field and that the alleged custom had not been proved. THEy, therefore, gave a decree in favour of plaintiffs Nos. 1 and 2, and plaintiff No.3 was not held to be an heir.