GHULAM AHMED Vs. SHAH MAHOMED YUSUF

JUDGEMENT

(1.) THIS is a suit by two worshippers who have obtained leave under Section 18 of the Religious Endowments Act to remove the trustee of a mosque and to have another appointed by the court in his stead. The defendant objected to the suit on the ground that no leave had been obtained under Section 539 of the Civil Procedure Code to enable the plaintiff to ask for the appointment of a trustee in place of the trustee asked to be dismissed. There is, no doubt, force in the objection so far as the prayer for the appointment of a new trustee is concerned. But a suit for the removal of a trustee of a mosque may be instituted with the leave of the court under the authority of Section 14 of the Religious Endowments Act itself. Such leave having been obtained by the plaintiffs under Section 18, it was perfectly competent to them to maintain the suit so far as the prayer for the removal of the defendant was concerned. We must set aside the decree of the District Judge and remand the case to the court below for disposal according to law, so far as the prayer for the removal of the defendant is concerned. We may add, to save the judge from misapprehension, that the plaintiffs are entitled to sue for removal under the Act without asking for possession themselves. The plaintiffs are not trustees and they are not entitled to possession, nor are they to appoint the trustee themselves and ask that possession may be given to such a trustee. The only course open to them would be to get a fresh trustee appointed by the court and, as that cannot be done in the present suit no leave under Civil Procedure Code Sec. 539 having been obtained, the plaint is in proper form in not asking for possession of the properties of the mosque being given to the plaintiffs. Costs hitherto incurred will be provided for in the revised decree.