HAFIZ MOHI-UD-DIN Vs. FATIMA BANO

JUDGEMENT

(1.) THIS is an appeal against the order of remand passed by the Senior Subordinate Judge.

(2.) THE facts which gave rise to this appeal briefly stated are these. The plaintiff Mst. Fatima Bano brought a suit in the Court of Sub -Registrar Munsiff Second class, Srinagar, for injunction restraining the defendant from collecting offerings on her behalf in Shah -i -Hamdan Shrine. The plaintiff alleged that she, being the Khana Nashin daughter of Ahad Shah, the brother of the defendant, a Nobatdar of Shah -i -Hamdan Shrine had a right to collect offerings made to the Shrine. The defendant resisted the suit on the ground that the right to collect offerings does not vest in the plaintiff inasmuch as she is not a male descendant of the last holder of that right. It was further pleaded that the suit for injunction without consequential relief did not lie. The trial court raised various issues and one of the issues was whether or not the suit for injunction without consequential relief as brought by the plaintiff was maintainable. The trial court came to the conclusion that the plaintiff was out of possession of the office and, therefore, the suit for injunction without possession would not lie. The plaintiffs suit was accordingly dismissed. The plaintiff went up in appeal and the Senior Subordinate Judge over -set the order of the trial Court and remanded the case for fresh trial.

(3.) THE defendant has come up in appeal to this court against the order of remand and it is argued on his behalf that the Senior Subordinate Judge ought not to have set aside the finding arrived at by the trial Court that the suit for injunction without possession would not lie. It has been further argued that the plaintiff was out of possession of the office of Nobatdar and she should have filed a suit for possession of the office and not for injunction alone. In support of this view reliance has been placed on a Madras ruling reported as - Abdul Sattar Ismail v. Abdul Hamid, AIR 1944 Mad 221 A, in which it has been held that, to maintain a suit for mere injunction without a prayer for possession, if the plaintiff had not got possession of the property it would not be sufficient to show that he has constructive possession; there must be actual possession. This ruling would not be applicable to this case. There is no question of possession in the present case. On perusal of the plaint it will be clear that the plaintiff averred that she has got a right of collecting offerings of Shah -i -Hamdan Shrine along with the defendant and that the defendant is interfering with her right of collection. The right of collection, as pointed out above, is already vested in the plaintiff, as has been alleged by her. It may be for the trial Court to into the question whether she has got that right or not but so long as she avers that she has got the right of collection of offerings made to the shrine of Shah -i -Hamdan the question of possession of office does not arise. The trial Court therefore, was wrong in holding that the plaintiff should file a suit for possession of the office and the suit for injunction was not maintainable.