SYED SAULAT HUSSAIN Vs. SYED ILMUDDIN

JUDGEMENT

(1.) This is a special appeal under Section 18 of the Rajasthan High Court Ordinance from the judgment and decree dated August 9, 1974, by the learned single Judge, whereby the learned Judge allowed the appeal filed by the plaintiff Syed Hmuddin and set aside the judgment and decree dated December 14, 1970, passed by the Civil Judge, Ajmer, in Civil Suit No. 271 of 1948 and granted "a declaratory decree in favour of the plaintiff against the defendant to the effect that so far as nearness in propinquity to tha last Sajjadanashin is concerned, the plaintiff is the rightful person entitled to hold the office of the Sajjadanashin of the Durgah Khwajah Sahib of Ajmer and that Hakim Inayat Hussain had no right or title to hold the said office as against the plaintiff".

(2.) The case has a chequered history Inasmuch as the suit was filed as far back as May 18, 1948, in the Court of the Sub-Judge, First Class, Ajmer. It was dismissed on May 9, 1951, on the preliminary ground that the suit was not maintainable in view of Section 119 of the Ajmer Land and Revenue Regulations. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed appeal to the District Judge, Ajmer, who, by his judgment dated August 27, 1952, set aside the judgment and decree by the trial court and held that Section 119 of the Ajmer Land and Revenue Regulations No. 11 of 1377 did not bar the jurisdiction of the Civil Court to try the suit Thereupon, the defendant filed second appeal in the court of the then Judicial Commissioner, Ajmer, who, bv his judgment dated Nov. 17, 1953, held that the jurisdiction of the Civil Court was barred and, in this view of the matter, he set aside the judgment of the District Judge and restored that of the trial Court. Dissatisfied with the judgment of the Judicial Commissioner, the plaintiff went in appeal to the Supreme Court by certificate and the Supreme Court, bv its judment dated March 7, 1961, allowed the appeal, set aside the judgment of the trial Court and remitted the case to the trial court for fresh decision in accordance with law. Meanwhile the court of the Sub-Judge had been abolished and the Munsiff, Ajmer City, acquired jurisdiction to try the suit. It is also important to note that during the pendency of the aforesaid litigation, Durgah Khawaja Sahib Act of 1955 (36 of 1955) (which will hereinafter be referred to as "the Act") came into force and the Durgah Committee constituted under the Act filed an application to be impleaded as a party to the suit. This application was allowed on September 30, 1964, and the Durgah Committee, Ajmer, was impleaded as a defendant. In its written statement, the Durgah Committee pleaded that on the death of Hakim Inayat Hussain, responsibility for making interim arrangement for the performance of the functions of the Sajjadanashin had devolved upon it under Section 13 (1) of the Act and, consequently, it had appointed Syed Saulat Hussain, son of Hakim Inayat Hussain, as interim Sajjadanashin and further that this appointment had been approved by the Governer of the State of Rajasthan vide notification dated July 27, 1964, with effect from the date of the death of Hakim tnayat Hussain (Ex. A, B, page 416). The Committee further pleaded that under Section 13 of the Act, ft had the authority to make permanent arrangements for the office of the Sajjadanashin. Thus, in short, its plea was that the suit had become infructuous. The learned Munsiff, by his order dated October 13, 1964, overruled the objection raised by the Committee and held that the suit was triable by the civil court. By another order dated December 12, 1964, the Munsiff also rejected the plea that the suit had been undervalued and the court-fee paid on it was insufficient. A revision was taken to the High Court from the orders of the Munsiff dated October 13, 1964, and December 12, 1964. Jagat Narayan J., as he then was, by his order dated August 25, 1966, allowed the revision application with the consent of the parties to this extent only that the plaintiff may amend his plaint so as to value the suit at Rs. 11,000/-, and the suit be withdrawn from the court of the Munsiff, Ajmer, and be transferred to the court of the Civil Judge, Ajmer, Accordingly, the plaintiff amended the plaint and the suit was transferred to the court of the Civil Judge Ajmer who, after recording the evidence produced by the parties, dismissed the suit by his judgment and decree dated December 14, 1970, As already stated above, the plaintiff filed appeal before the High Court which has been allowed by S. N. Modi J., sitting singly and this is the special appeal from the judgment and decree by Modi J.

(3.) Plaintiff Syed Illmuddin's case, as set out in the plaint, is that the last Sajjadanashin Diwan Syed Alley Rasul Ali Khan of the well known Durgah Khawaja Sahib, Ajmer, migrated to Pakistan in September 1947, resulting in the Office becoming vacant. His case is that the office of the Sajjadanashin is hereditary and the plaintiff being the nearest qualified male relation in the male-line of Diwan Syed Alley Rasul Khan is entitled to succeed to the said office according to the rule of primogeniture but the defendant Hakim Inayat Hussain Khan (since deceased) had illegally assumed the charge of the office of the Sajjadanashin on May 6, 1948, in pursuance of the order of the Chief Commissioner, Ajmer. He has, therefore, prayed that a declaration be granted in his favour that he is entitled to hold the office of the Sajjadanashin and to receive emoluments and perquisites attached thereto. It was further prayed that the defendant be restrained from exercising the rights and the privileges of the office.