SYED AHMAD Vs. HAFIZ ZAHID HUSAIN

JUDGEMENT

(1.) This is an appeal from a decree passed by the learned District Judge, Moradabad, reversing that of a Munsif of that district in a suit brought by the plaintiff-appellant for recovery of possession of a certain "chabutra" appertaining to a mosque situate in Mohalla Chilla, town Amroha, district Moradabad. The facts found by the lower appellate Court, and which can no longer be questioned in second appeal, are as follows: The mosque in question was built nearly 300 years ago. The plaintiff's ancestor was a local saint, who became somehow associated with this mosque. In the courtyard of the mosque, there is a place known as "chilla-gah," which means a place where the saint used to retire in seclusion. As is not unusual in towns having Muslim population, a small "maktah" or school for religious instruction inside the mosque premises was in existence. The mosque had on two sides of it spare land appertaining to it. On the land lying to the east of it three rooms and a verandah were constructed, partly by public subscriptions and partly by the plaintiff himself. These premises were intended for the school. Between the school building and the mosque an open space was left and is shown in the plan as "sahan darsgah." The entrance to the mosque is shown on the south. This entrance leads to the salian mentioned above, and therefrom to the mosque. On either side of the entrance there are open spaces admittedly appertaining to the mosque. On the land lying to the east of the entrance there is a well. To the west of it are two rooms which appear to be adjuncts to the mosque. These rooms have doors towards the south, opening on a "pucca chabuttra," which extends further south to the public road. The controversy in this case relates to this "pucca chabutra." The school located in the building to the east of the mosque appears to have made considerable progress. When need for more accommodation was felt, a tiled shed was put up on the "chabuttra" already referred to. A reference to the plan on the record will isbow that the "chabuttra," which is to the south of to mosque, is altogether detached from the main school building to the east of the mosque. The management of the school has for sometime been in the hands of a local committee, of which the defendants are some of the members. The latter pulled down the tiled shed and attempted to make a pucca construction on the chubattra to extend the accommodation for the school. The plaintiff who claim to be the "mutwalli" of the mosque and entitled to the offerings made in the Chillahgah, already referred to, objected to any building-being erected on the pucca chabuttra. The defendants denied the plaintiff's right as a mutwalli and his right to prevent them from making the contemplated construction and insisted on their own right to build. The plaintiff instituted his suit immediately, claiming possession of the chabuttra and injunction restraining the defendants from making any construction. The plaint contains an allegation that the plaintiff is the "mutwalli" of the mosque and of all land appertaining thereto, that the chabuttra is an appurtenance to the mosque and that the defendants had no right to build against the wishes of the plaintiff.

(2.) In defence the plaintiff's right as a "mutwalli" was denied. The existence of the school and of the local managing committee was alleged. It was pleaded that the defendants were some of the members of the managing committee and were not liable to be sued, as the construction was being made by the managing committee, which should have been impleaded. It was averred that the school, for which the proposed construction is intended imparts religious education which cannot in any way be inconsistent with the purposes for which the chabuttra in dispute exists.

(3.) The learned Munsif found in favour of the plaintiff on all the points and decreed his suit. The learned District Judge held, in appeal by the defendants, that the chabuttra in dispute was an appurtenance to the mosque and that the plaintiff was the mutawalli of the mosque. He however held that the defendants were not trespassers and could not be ejected by the plaintiff. He thought that the plaint, which did not disclose the existence of the school, was "disingenuous." Accordingly the defendants should not have been described as trespassers, and are not such. The grounds on which the learned District Judge dismissed the plaintiff's suit may be stated in his own words: It appears to me necessary to infer that whoever dedicated the mosque and with it the land adjacent to it did so for the benefit of the Mohammedan public of the immediate neighbourhood, and it appears to me that the mutawalli must be regarded merely as an officer whose duty it is to carry out the wishes of the founder of the trust. The school, which is a religious school and has been located on the land in the immediate vicinity of the mosque proper for at least ten years with the plaintiff's acquiescence, is an institution supported mainly, if not entirely, by the subscriptions of the Mohammedans of the neighbourhood and is managed entirely by a committee of those Mohammedans. It appears to me legitimate to infer that the action of the defendants in starting to replace a temporary thatched structure on the chabutra by a more permanent structure had the approval of the Mohammedan public in the neighbourhood in general. This inference is strengthened by the fact that all the defendants witnesses are persons of respectability from the mohalla, while none of the plaintiff's witnesses are of the mohalla and the plaintiff himself admits that for years past he has seldom visited the mosque except to collect money annually at the fair. It appears to me that when the Mohammedan public of the neighbourhood, for whose benefit a mosque was originally erected and dedicated, decided to put the land appurtainant to and in the immediate neighbourhood of it to a certain purpose, the mutawalli has no right to treat them as mere trespassers or to put an arbitrary veto on their proceedings. On a mutawalli going into Court as against the representatives of the public in such circumstances, the issue before the Court is, I take it, whether the (purpose, to which the defendants desired to put the land, is a proper and seemly purpose The question therefore appears to me to be narrowed down to this : whether the erection of a more permanent structure on the chabutra for the purpose of the existing school does or does not affect the convenience or dignity of worship in the adjoining mosque, and as nobody has ever suggested that it does, there can only be one answer to that question.