MASJID PATTI Vs. LATIF AHMED

JUDGEMENT

(1.) THE revision petition has been filed against the order dated 21.9.1999 passed by the Commissioner, Ambala Division, Ambala and order dated 13.5.1998 passed by the Collector, Yamunanagar who accepted the recommendations of DRO-cum-Assistant Collector Ist Grade dated 7.4.1997.

(2.) FACTS in brief of this case are that in village Talakaur Tehsil Jagadhri, District Yamunanagar there is a Masjid Patti Nyamatpur and some land is attached for maintenance of this Masjid. Noor Mohammed was appointed Mohatmim of this masjid with the consent of whole community. On the death of the Mohatmim mutation No. 765 was entered for succession to the office of Mohatmin in favour of Latif Ahmed on the basis of an unregistered will dated 4.12.1981 by the halqa patwari but when the same was placed before Assistant Collector 2nd Grade for sanction on 26.11.1987 Sh. Basir Ahmed, Nasirudin and Nazir Mohammad and others of Muslim community raised objection that the deceased Mohatmim could not make a will since a committee existed to look after the Masjid and property attached to it. Assistant Collector, 2nd Grade referred the mutation to Assistant Collector Ist Grade for disposal. Assistant Collector, Ist Grade, Jagadhri vide his order dated 22.8.1988 decided the mutation in favour of the State on the grounds that none of the parties was entitled to the land and further observed that he was unable to sanction the mutation in favour of any of the party. He also observed that neither deceased could make a will nor the second party could be accepted as representative of Muslims. Against this order an appeal was moved before the Collector who vide order dated 26.4.1991 held that there was no dispute relating to title of the land but to the appointment of Mohtamim. The land has been transferred in the name of State and the party is directed to move application to the lower Court regarding appointment of Mohatmim. Assistant Collector Ist Grade recommended the mutation in dispute for sanctioning in favour of respondent vide order dated 7.4.1997 to Collector who accepted the recommendations of Assistant Collector Ist Grade vide order dated 13.5.1998 and ordered attestation in favour of Latif Ahmad. Against this order of the Collector an appeal was filed by the petitioner in the Court of Commissioner who dismissed the same vide order dated 21.9.1999 and upheld orders dated 13.5.1998 and 7.4.1997 passed by Collector and Assistant Collector respectively. Against this order of the Commissioner the present revision petition has been moved in this Court.

(3.) COUNSEL for the respondent argued that the Civil Suit which has been referred by counsel of the petitioner was filed by Noor Mohammad for permanent injunction as the committee-petitioner as no locus standi, since Noor Mohammad died during pendency of the suit, respondent had filed an application for continuation of the suit by him. This was not accepted by the Civil Court and was dismissed as infructuous because of the death of Noor Mohammad. Appeal filed by respondent was also dismissed as withdrawn. The civil suit had been brought by the respondent to keep the case alive. The counsel for the respondent quoted 1994 RCR 536 according to which if a suit is dismissed on technical grounds, then subsequent suit is not barred by the principle of res judicata or by the provisions of order 2 rule 2 of the Civil Procedure Code, 1908. 1986 PLJ 385. All three lower Courts have said that Committee had no locus standi and managing committee is self-styled and cannot appoint or remove Mohatmim and, therefore, the revision should be dismissed.