AZIM KHAN Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs Azimkhan and Nazirkhan who having died during the course of this appeal are represented by Noor Mohamed and others and arises out of a suit for declaration and injunction.

(2.) THE Suit relates to certain agricultural land situate in the city of Udaipur. THE history of this land may shortly be stated as follows. Major Calf who was designated as Resident at Udaipur purchased 4 bighas of land from one Chatra and dedicated it to the mosque of Alipur situate in the city of Udaipur. This land was, however, utilized for the residency garden. So Major Calf used his good offices to secure another 4 odd bighas of land belonging to one Ghasiram and this land was granted to the mosque under a Tamba Patra dated Jeth Vadi 11, Smt. 1892 in the name of Faquir Kutubshah on the express condition that the Faquir will look after the mosque and defray the expenses for the maintenance of the mosque out of the income of the land. In Smt. 1935, the then Mutvallies of the mosque namely Jamalshah and others made a usufructuary mortgage of this land in favour of Hasankhan, father of the plaintiffs for Rs. 1055/ -. A further mortgage was made in Smt. 1947, and yet another in Smt. 1948 in favour of Hasan Khan. Later the Mutvallies of the mosque filed a suit for redemption of the land, and this was decreed vide the judgment of the Mehdraj Sabha dated the 27th July, 1895, Ex. P-6, it having been provided that the mortgagers shall pay to the mortgagees the mortgage money as well as the amount spent by the mortgagees on the improvements of the land. This money was not paid, and the mortgagees continued to remain in possession. On Baisakh Vadi 13, 1954, Jamalshah and others Mutvallies sold the land in favour of the plaintiff; mortgagees in lieu of the mortgage money plus a further amount of Rs. 751/ -. THE plaintiffs accordingly continued in possession of the land in dispute right upto 1955 A. D. when they were dispossessed thereof by the State during the pendency of this appeal. Earlier, towards the end of 1946, the Revenue Minister of the former State of Udaipur put up a note to His Highness the Maharana that the Mutvallies of the mosque had made certain mortgages with respect to this land and had also sold the same and that at this was illegal. THE Revenue Minister, therefore, recommended that 4 bighas and 4 biswas of the total muafi land measuring 5 bighas and 1 biswas which was under possession of the plaintiffs be resorted to the mosque and the plaintiffs be ejected therefrom and the 17 biswas should be resumed or escheated to the State. It was further proposed that the entire land to be made over to the mosque, be acquired and so far as the mosque was concerned, a cash compensation of Rs. 35/- per annum which was the estimated income of the land be allotted to the mosque out of the 'dharma Sabha' budget. His Highness the Maharana sanctioned these proposals on the 1st January, 1947, (See Ex. P-3 ). THEreupon the plaintiffs Azimkhan and Nazirkhan sons of Hasankhan filed this suit for a declaration and injunction on the 7th May, 1948. THE plaint is a most ill drafted one but its gist clearly is that the order by which the land in dispute had been ordered to be made Khalsa was illegal and inoperative, and, therefore, the plaintiffs sought a declaration to that effect and also some kind of an injunction which was stated to enure till the decision of the suit but was intended and has been taken to be a prayer for permanent injunction restraining the State from interfering with the possession of the plaintiffs. Be that as it may, the suit was resisted by the State.