COMMISSIONERS OF PATNA CITY MUNICIPALITY Vs. SYED SHAH HAMID HUSSAIN SAJJADANASHIN DARGAH HAZRAT SHAH ARZANI

JUDGEMENT

(1.) The defendants appellants are the Commissioners of Patna City Municipality. The plaintiff-respondent is the Sajjadanshin of Dargah Hazrat Shah Arzani situate in Mohalla Dargah within Patna City. It appears that from ancient time Tazias from different quarters of Patna City are brought to the Dargah or an Imambara near the Dargah on the 10 day of Moharram every year for the purpose of performing ceremonies in connexion with the Moharram. These processions are attended by a large crowd of persons interested in the ceremonies. To reach the Imambara the processions pass through a road named the Dargah road. For the purpose of catering for the crowds,, which attend the ceremonies stall-holders have been in the habit of erecting stalls and booths along side this road on the 10 day of Moharram. In this plaint the plaintiff alleged that on the 10 day of Moharram shops had been erected on both sides of the Dargah road from time immemorial by means of settlement on behalf of the plaintiff and his ancestors and that the plaintiff and his ancestors realised rent from these shop-keepers and had done so from time immemorial without opposition. It was further alleged that the money realised in this way from the shop-keepers was applied to the Niaz of Hazrat Imam Hussain and to other functions relating to the Imambara, para. 10 of the plaint is in these terms: It is clear from the above submissions that on the 10 day of the Moharram shop-keepers construct shops on both sides of the Dargah road within the milkiat of the plaintiff and he has got the right to realize rent from the shop-keepers.

(2.) The plaint then went on to allege that on the occasion of the 10 day of Moharram in 1938 the Amlas of the defendants had forcibly realized rent from the shop-keepers and had threatened them, that they would be fined and prosecuted if they did not pay rent to the defendants, in consequence of which some of the shop-keepers out of fear paid rent to the defendants, while the remainder paid rent to the plaintiff. The reliefs which the plaintiff claimed on these allegations were first, a declaration of his right to realise rent from the shopkeepers on the Dargah road on the 10 day of Moharram, and, secondly, a permanent injunction restraining the defendants from offering resistance or making collection. The third relief was the recovery of Rs. 25 from the defendants which sum, it was alleged, the defendants had realised from the shop-keepers in 1938 on the 10 day of the Moharram. The cause of action was stated to have arisen on 13 March 1938, corresponding to the 10 day of the Moharram of that year, and on 23 March 1938, when the plaintiff gave notice to the defendants of their claim.

(3.) The defence was that the Dargah road is a public road vested in the Municipality, that the plaintiff had no right to settle shop-keepers on this road on the 10 day of Moharram, and a denial that the defendants had realised any rent from the shopkeepers.