RAJA SHAH Vs. HUSAIN SHAH

JUDGEMENT

(1.) The facts found by the Court below are as fellows: For a long time past the defendant and his ancestors before him have hoisted a flag bearing the arms or emblems of a Muhammadan taint, named Madari, at a fair which is held annually at Makanpur near Jhansi, and they have been in the habit of taking the flag to weddings in the town of Jhansi and appropriating any offerings that were made to it, For 20 years or so, before 1908, one Madari hoisted in Jhansi a flag bearing the arms or emblems of another saint, named Muin-ud-din Chishti. He used to take the flag to weddings and appropriate any offerings that were made to the flag. In 1908, Madari made over this flag to the plaintiff and purported to transfer to him the right to take the offerings made to it. In June, 1908, the plaintiff planted his flag at the house of one Grappa, where a wedding was about to take place. The defendant pulled the flag down and took it away. Hence the present suit which was instituted in July, 1908. The plaintiff claimed (1) a declaration that he is the owner of the flag of Muin-ud-Din Chishti which is hoisted at Jhansi every year and eventually taken to the saint's tomb at Ajmere, and that he is entitled to the offerings that are made to it ; (2) a decree for the return of the flag or for Rs. 10 the price of it ; (3) damages, and (4) costs and other relief.

(2.) The first Court made a decree in terms of (1) and (2) reliefs, but awarded no damages on the ground that none had been proved. That decree was confirmed by the lower appellate Court. In second appeal it is contended that the suit is not one of a Civil nature and that an alleged right to receive charity cannot be declared by a Civil Court.

(3.) The hoisting of a flag bearing the emblems of Muin-ud-din Chishti is an innovation compared with the hoisting of Madari's flag at Makanpur which seems to have been going on for generations, and the defendant seems to think that the transfer of Muin-ud-din Chishti's flag to the plaintiff was a good opportunity for an attempt to do away with it.