MANRAKHAN BALDEO PRASAD Vs. AMIR KHAN AZAM KHAN

JUDGEMENT

(1.) THESE two second appeals arisa from the two decrees in two appeals before the additional District Judge, Bhind from the judgment of the Civil Judge;, Second class of Bhind allowing in part the suit of Amir Khan, who is the appellant in Civil second Appeal No. 160 of 1956 for certain declarations and the removal of encroachment. In view of the order that is being passed, it is unnecessary to go into the basis of the concurrent findings of facts.

(2.) BUT it is necessary to set out the general nature of the dispute that seems to have been going on mostly in Courts for some years, and is not without dangerous possibilities. In Bhind there is a mosque and adjoining it an Idgah, a piece of land used by the Muslims of the locality, for assembly on certain occasions. To the north of Idgah is the house of Bal-deo Prasad, whose sons were the defendants in the suit and are the appellants in Second Appeal No. 145 of 1956. To the east of Baldeo's house is a lane or passage which goes to the Idgah, but how far beyond it is not clear. For the thirty or forty years some sort of petty differences have been existing between Baldeo Frasad, some Muslims of the locality, who use Idgah and the Municipality or some such local body in whom the land is vested. It appears that some-time in the twenties Baldeo Prasad opened a door or window on the side of the lane. But there was some byelaw in the Municipality under which no such opening on a public lane could be made without its permission that permission not having been granted, there was some difference between Bade prasad and the local body -. Sometime in the year 1920 Baldeo Prasad brought a suit against certain Muslims in the locality that they had forcibly closed his door on the lane. The defence was that it was not they, but the Municipality which had got it closed as it had been opened without its permission. Sometime before the filing of the present suit two things happened: First, the opening of a door on the eastern side of their house by Baldeo Prasad's sons, on that very lane, about which there was trouble 25 years before; but this time they presumably obtained permission of the Municipality. Second, the repair and reinforcement of the wall on the south, which had fallen down; now there was a buttress on that side of some width.

(3.) AGGRIEVED by both these, Amir Khan, describing himself as the Vice President of an Anjuman Islam of this locality arid as the manager of the Idgah filed a suit. No prayer was made for the permission of the Court and there was no notice as required by Order 1 Rule 8. But the prayer was for relief on behalf of the Muslims who worshipped at the ldgah, Amir Khan averred that the Tdaah extended right up to the edge of the wall of Baldeo Prasad's house as it stood before the repairs, and that while repairing it the defendants had encroached upon the Idgah land to the extent indicated in the map attached to the plaint; he prayed for the declaration of title and for the removal of the encroachment. In regard to the door on the lane Amir Khan's averment is materially different from the position taken by the defendants in the suit in the twenties. Here it is that the land was not a public lane; it was a special lane used exclusively by those who were to go to Idgah for the purpose of religious worship; this is to say, only the Muslims of the locality. So the defendants' opening the door and using the land was illegal; and it should be stopped. From this view point it was immaterial whether or not the Municipality has permitted the door.