SAYAD NURUDIN SAHEB REFAI Vs. ABAS BAVASAHEB ZARI

JUDGEMENT

(1.) This was a suit brought by the appellants for a declaration that they were entitled to celebrate the Urus of the saints mentioned in the plaint. or of any other saints. The appellants asked for a permanent injunction, restraining the defendants from disturbing or invading the plaintiffs rights. The appellants also claimed in their plaint Rs. 10 as damages and prayed for other reliefs. The allegations on which those prayers were made were that appellant No. 1 was the Chief Guru of the Mahomedan religion and that his authority of jurisdiction extended over the whole of the Bombay Presidency. It was also alleged that two special Haks known as Refai and Kadri had been long enjoyed by the family of the first appellant: that the right to exercise these Haks in Ratnagiri or the Konkan province or in any other province of the Bombay Presidency belonged to appellant No. 1, and none else could exercise these rights except with appellant No. is permission; that none could without appellant No. is permission take or appropriate the income or emoluments in connection with the exercise of that right. The appellants also averred that the right to celebrate the Urus of the saints, Sayad Ahmadulla Refai, Sayad Ahmad Kabir Refai, Dastagir Saheb Kadri and Habib Saheb Iddrusse and of any other saints belonged to the first appellant as his ancestral right, and that the appellant alone was entitled to take and appropriate the income in connection with those Uruses. It was further alleged that none but appellant No. 1 was entitled to exercise the rights of the Kadri and Refai Panth (Order) at any such Uruses except with the permission of that appellant; The plaint alleged that the plaintiff No. 2 s family had for many years been employed by the family of plaintiff No. 1 to exercise those rights on their behalf.

(2.) The Court of first instance held that the suit was one for an office and that there were emoluments attached to it, and that, therefore, it wag maintainable in a civil Court.

(3.) The lower appellate Court has taken a different view and rejected the claim upon the ground that no civil Court has jurisdiction to try such a suit as it is one of mere dignity and not any office in the nature of property or civil right. We agree with the view taken by the lower appellate Court. The case in all its essential features resembles Narayan Vithe Parab v. Krkhnaji Sadashiv (1885) I.L.R. 10 Bom. 283. The fact that voluntary offerings are made to the first appellant by the worshippers or votaries does not change the real character of the suit which is one for mere dignity. This conclusion is further supported by the judgment of this Court in Murari v. Suba (1882) I.L.R. 6 Bom. 625. For these reasons we think the lower appellate Court s decree is right and must be confirmed with costs. Batchelor, J.