SHAIK PIRU BORK Vs. KALANDI PATI

JUDGEMENT

(1.) THIS is a defendants' Second appeal against the reversing judgment dated 14-41960 of the Additional Subordinate Judge of Cuttack, modifying the decree of the additional Munsif of Jajpur.

(2.) ALAKANDU and Nuagon are two adjoining villages within Binjharpur police Station in the District of Cuttack. A District Board Road passes by the side of the village road and the Hindu community of both the villages live on both sides of the road. The Muslim residents of these two villages have two mosques one situate in village alakunda to the north of the District Board Road and the other is situated in village nuagaon to the north of the village road both the mosques standing by the side of the aforesaid road. The plaintiffs' case is that the Hindus of the two villages used to take out religious processions accompanied by appropriate music on occasions like Dolejatra, shivratn, Kartik Purnima etc. and Astaprahari Kirtans also used to pass on the said route. They also used to take other non-religious processions accompanied by music on the said route. This, they have been doing since time immemorial without any interruption until 1952 when on the Kartik Purnima day while the plain-tiffs' community took out their procession on the said route, the defendants obstructed them and succeeded in obtaining a prohibitory order under Section 144, Cri. P. C. against the plaintiffs' community and also started security proceedings under Section 107, Cri. P. C. thus depriving the plaintiffs' community of their fundamental right to use the highway in the manner they had hitherto been doing. The plaintiffs thus were constrained to file the present representative suit for declaration of the right of the Hindu Community to take all religions and social processions with appropriate music along the District Board Road, village road, and other public highways of the locality including those by the side of the defendants' mosques, Without any interruption whatsoever and prayed also for permanently restraining the defendants' community from interfering with such rights a the plaintiffs.

(3.) THE defendants, amongst other objections, contended that on account of similar disputes 'between the two communities in the year 1931 a proceeding under section 107, Cri. P. C. was started and a compromise (Ext. H) was effected between the leading members of the two communities on 18-1-31 as a result of which the proceedings were dropped, and subsequently with the approval and tacit consent of both the communities brick pillars on both sides of Alkunda mosque with the inscription "bajabajaiba Nishedha" were erected to indicate to the processionists to stop music within specified limits near the mosque. In accordance with the said compromise the plaintiffs' community used to stop music within the limits thus specifies whenever they used to take out processions. This was done until the year 1952 when the plaintiffs community sought the co-operation of the defendants' community to prevent cow-slaughter and on the refusal of the defendants' community to do so, the plaintiffs' community out of vengeance violated the terms of the compromise and created disturbance at the time of offering of prayers in the said mosques by the defendants' community. It was the further case of the defendants that the plaintiffs' community being bound by the previous compromise under Ex. H were estopped from re-agitating the matter in the present suit, and in any case the suit is not otherwise maintainable.