SYED MOHD IBRAHIM ALII Vs. SYED AKRAM ALT

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is directed against an order passed under Order 33, Rule 1 C. P. C. whereby the petition filed to sue in forma pauperis was dismissed. The reliefs prayed for in the plaint are (1) to declare that the plaintiff (petitioner) is the Mutwalli of the Dargha, (2) that the defendant (respondent,) be directed to hand over possession of the Dargha to the plaintiff (petitioner) and (3) to recover a sum of Rs. 60,000/- from the defendant being the income realised by him during the years 1964 and 1965.

(2.) The following are the allegations made in the plaint: "The plaintiff's father and his ancestors were hereditary Mutawallies of the Dargha. The plaintiff has also been the hereditary Mutawalli. The Dargha is situate at Yennunnarva, a village in Shadnagar taluk.

(3.) During the period of the reign of the Emptror Awarangjib, the plaintiff's ancestors were appointed Khazi and Mutawali for the Dargha and a sanad was granted in their favour. They were in management of the Dargha They used to appoint servants and Mujawars. The plaintiff's ancestors were the Khazies for the area in which they were residing and they were also Mutawallies for the said Darghai Therefore they appointed the defendant's father and other persons as Mujawars and servants of the Dargha to perform the services of Katiha and attend to the sweeping of Dargha etc.. Thus, members of the plaintiff's family had been in possession and management of the Dargha for many generations. The defendint or any of his ancestors had no right to, or interest in, the Dargha As stated above, the defendant's father and some other persons were appointed as servants and Mujawars for Dargha by the plaintiff's ancestors. They were not Sajjadas or Mutawalies for the Dargba at any time. About 50 years back, one Sufi Azam Ali made a complaint to the Ecclesiastical Dept. against then Mujawars of the Dargha alleging misconduct on their part in the matter of the management of the Dargha. He did so with the wrongful intention of taking possession of the Dargba. The Ecclesiastical Department entrusted the management of the Dargha to him without making any enquiry. Shortly, thereafter Government however dismissed him and took over the management of the Dargha, pending disposal of the case. The Dargha was taken over by the Government from the possession of the plaintiff's father and grand-father. They applied to the Ecclesiastical Department for possession of the Dargha but as there were other claimants also, the Nizam issued a firmana that, pending enquiry of the case, the Dargha need not be handed over to anybody. The Dargha tbus remained under the supervision of the Government No enquiry was made by the Government; and no order were passed regarding the management, of the Dargha. The Government did not take any action inspite of several representations: made by the Plaintiff's ancestors and also, by the plaintiff .There was no justification, for the failure of the Government to dispose of the plaintiff's petition or for continuance of the Government supervision and management of the Dargha. , There was also no justification for the Government to put the defendant in possession of the Dargha throug the Wakf Board. .The defendant filed the suit for declaration of his right of management in respect of the Dargha and for its possession against the Government, and Muslim Wakt Board He also sued for recovery of the amount which was lyiag in deposit with the Government, He filed the suit in the District Court, Maha., boobnagar. It was numbered as O. S, 7 of 1555 He (Defendant) did not, however, irnplead the plaintiff herein as a, party to the suit even though he was aware that he was the rightful claimant to the; , possession and management of the Dargha, After be came to know of the suit, he filed a petition for being brought on record as a supplemental defendant an the suit. But the District Court however dismissed the petition.