HAJEE SHEIKH ALI MOHAMMED Vs. MOHEMMED YUSUF

JUDGEMENT

(1.) THE plaintiffs are the appellants,--in this Second Appeal,--from a confirming decision of the learned Additional Subordinate Judge of Cuttack, whereby he affirmed a decision of the learned Munaif, Cuttack and dismissed the plaintiffs' suit for permanent injunction restraining the defendants from interfering with the management of Oriya Bazar mosque in Cuttack town, arising out of the disputed question of the Mutwalliship, in respect of the said mosque, which admittedly, is a public mosque, in the circumstances hereinafter stated.

(2.) THE plaintiffs are members of Mahomedan community, calling themselves managing committee for management of the said mosque, stated to have been elected by the general public of Oriya Bazar in Cuttack Town, for the purpose of looking after the said mosque which is said to be the only mosque in the locality. The defendant No. 1 is the son of defendant No. 2, who died during the pendency of this litigation; thus the defendant No. 1 is the only surviving defendant, who claims to be the Mutwali in respect of the said mosque.

(3.) THE plaintiffs' case, shortly stated, is this; The said mosque has no property, besides the site in which it stands and thus it has no income; it has to meet a lot of expenses which is met by public subscriptions; that a certain Wakf deed stated to have been executed by the original founder of the mosque was held in a prior suit,--filed as early as 1925 hereinafter fully discussed,--to be a fraudulent deed and not acted upon. One Mukram Ali, a rich local resident, is stated to have been managing the mosque at his own expenses since 1900 until 1940 when he retired from the management; that neither the defdt. 1 Md. Yusuf nor the deceased father of defendant No. 2 Mhd. Golam Gous, during his life time, could be the Mutwali nor did either of them ever act as Mutwali as alleged by the defendant; that the upkeep of the mosque is by the public by subscription, the public paying municipal taxes and electrical charges; that there is no documentary evidence of management of the mosque by either of the defendants.