PEER GULAM NASEER Vs. PEER GULAM JELANEE

JUDGEMENT

(1.) BRIEF facts leading to this revision are that there is a famous Dargah Hazrat Qwaza Haji Mohammed Naramuddin at Fatehpur Shekhawati (hereinafter referred to as 'the Dargah')- Haji Nazamuddin was the founder and after his death his eldest son Nasaruddin became the Sejjadanasin and Mutwalli of the Dargah. After the death of Nasaruddin Najamuddin became second Sejjadanasin while he was a minor. Gulam Sarwar became the third Sejjadanasin and he also framed a scheme (Japta) in the year 1932 for the succession of the office of Sejjadanasin and Mutwalli in the Dargah. After the death of Gulam Sarwar the fourth Sejjadanasin was Gulam Nurul Hasan. According to Peer Gulam Naseer, who filed the present suit, he was nominated and appointed as Sejjadanasin during the life time of Gulam Nurul Hasan. According to the plaintiff, he was the daughter's son of Gulam Nurul Hasan and he was nominated and declared the successor of Gulam Nurul Hasan on September 12, 1979 by a will, which was also registered on November 16, 1979. Gulam Nurul Hasan died on August 3, 1982. The present suit has been filed on August 6, 1982 by Gulam Nasir claiming himself as a Sajjadanasin and Mutwalli of the Dargah. The plaintiff being a minor has filed the suit through his natural father and next friend Shri Moujjam Ali. According to the plaintiff, he is a regularly appointed Sajjadanasin and Mutwalli of the Dargah and the defendant-non-petitioners were unlawfully interfering in his due discharge of his duties as Sajjadanasin. The plaintiff thus filed the present suit for injunction restraining the defendant-non-petitioners or their agents from entering the Dargah and not to disturb him in discharging his functions as Sajjadanasir. It has also been averred in the plaint that there were disputes among the successors of the founder of the wakf and the same were decided by judgment dated September 21, 1929 of the Chief Court of Jaipur State. The Wakf Act, 1954 came into force in Rajasthan and the Dargah was registered in 1967 with the Rajasthan Board of Muslim Wakf. Alongwith the suit an application for temporary injunction under Order 39 Rules 1 and 2 C. P. C. was also filed. Learned Munsiff by order dated December 3, 1982 granted an injunction in favour of the plaintiff and restrained the defendant-non-petitioners not to interfere in the religious duties to be performed by the plaintiff-petitioner like sitting over Gaddi, recite 'kubbalis', to put 'chadar' etc. It was further directed that Rajasthan Board of Muslim Wakf will keep superintendence over the wakf property and wi (i also manage the same and will also furnish the statements of income and expenditure till the plaintiff becomes major or the final determination of the suit, which ever is earlier. Such accounts would be submitted annually or as and when demanded by the court. The defendants aggrieved against the aforesaid order filed an appeal. The learned Civil Judge, Neem-ka-thana by order dated August 28, 1986 allowed the appeal and set aside the order dated December 3, 1982 passed by the Munsif, Fatehpur. The plaintiff aggrieved against the order of the Civil Judge has filed the present revision.

(2.) IT may be mentioned at this stage that the founder of the wakf did not lay down any principles to guide succession to the seat of Sajjadanasin in the Dargah. The Code (Japta) of 1932 was laid down by Peer Gulam Sarwar, who was father of non-petitioners Peer Gulam Jelanee, Abrar Ahmed, Waziru-ddin, Mohammed Arifam Gulam Mohiddin and also the father of the last Sajjadanasin Shri Nurul Hasan. Now, Peer Gulam Jelanee is claiming the right of Sajjadanasin on the ground of being the real brother of last Sajjadanasin Gulam Nurul Hasan. On the other hand, the plaintiff is the daughter's son of Gulam Nural Hasan and is claiming the right of Sajjadanasin on account of being nominated and appointed as a Sajjadanasin by the last Sajjadanasin namely Gulam Nurual Hasan. The plaintiff is claiming the right on the basis of a written document dated September, 12, 1979 and registered on November 16, 1979 by which he was nominated as Sajjadanasin to succeed after Gulam Nurul Hasan. Two important 'urs' are performed in the Dargah every year and the controversy arose after the death of Gulam Nurul Hasan on August 3, 1982.

(3.) NOW so far as the first appellate Court is concerned, it set aside the findings of the trial Court on all the three points. The Civil Judge while dealing with the question of prima facie case observed that the founder of the wakf did not lay down the tenets or principles to guide succession to the seat of Sajjada-nasin. The Japta of 1932 was laid down by Peer Gulam Sarwar, who was a later Sajjadanasin and who was father of the appellants Nos. 1 to 5 and also the father of the last Sajjadanasin-Nurul Hasan. The Civil Judge considered the contents of Regulation 1 and 2 of the Regulations of 1932. On the basis of the contents of the above two Regulations the Civil Judge held that the plaintiff Peer Gulam Naseer, who was only a bit less than 3 years old, when the last. Sajjadanasin declared him as successor, did not qualify to this seat according to the principles of the Japta. In this regard, learned Civil Judge though admitted that a minor can be nominated to the office, but this can be done only when the inner flash of lights of the outgoing Sajjadanasin so urges him to do. As regards the judgment of the Chief Court dated September 21, 1929, learned Civil Judge observed that the question of Sajjadanasin was not decided in the said judgment. As regards the will made by Nurul Hasan learned Civil Judge posed a question Whether it was a will ? According to Civil Judge a will operates and comes in force after the death of testator and on September 12, 1979 the testator Nurul Hasan was alive The Civil Judge then observed as to how Shri Nurul Hasan could have relinquished his seat as Sajjadanasin on September 12, 1979 itself. Perhaps he had not done so otherwise how could there be two Sajjadanasins from September 12, 1979 till August 3, 1982 when Nurul Hasan died. The plaintiff being a child did not have the qualification as required under the Japta and he could not be so appointed unless so urged by a flash of inner light which seem to be wanting in the present case.