MAHOMED OOSMAN Vs. ESSACK SALEH MAHOMED VANJARA

JUDGEMENT

(1.) The plaintiffs seek to establish a claim to be what they designate hereditary mujawars of the Pir Haji Ali Dargah. The history o the dargah is traced in the judgment on the counter- claim on p. 524- eds. See also judgment on counter claim. P. 529. The management of the said dargah and the properties appertaining thereto is subject to a scheme framed by this Court in suit No. 1337 of 1916. The defendants are the trustees appointed under the scheme. The plaintiffs claim, independently of the scheme, to act as mujawars, to occupy free of rent certain quarters conveniently designated in the plan (exhibit 7) as the mujawar's quarters, to take and keep for themselves the offerings collected in what is styled the mujawar's ghalla (offering box) and the other offerings specified in the plaint paragraphs 4 to 8 and prayers (b) to (g). It is also prayed that a suit brought by the trustees to eject the plaintiffs from the mujawar's quarters may be stayed, and that interference with the plaintiffs possession of the mujawar's quarters and of their duties as mujawars and enjoyment of their aforesaid rights be restrained.

(2.) The plaint offers no explanation of the word mujawar, nor particulars of the functions ascribed to a person so described, nor any effective reference to his duties as the holder of an office known to the law. The rights and privileges claimed are, on the other hand, abundantly set out in paragraphs 4 to 8 and in prayers (a) to (g). It is only in the 14 paragraph and in prayer (t) that duties are alluded to; but it is not indicated what they are. The reference to services in paragraphs 10 and 12 is not made primarily by the plaintiffs, nor with the purpose of giving the plaintiffs version. On the contrary it is impliedly denied that the privileges claimed are in part consideration of services to be rendered by the mujawar. The plaint is also cryptic as to the origin, source or derivation of these alleged rights : whether contract grant or operation of any and what law. Long continued enjoyment, it is assumed, satisfies all requirements and establishes rights of every description. The plaintiffs counsel attempted to fill up these hiatuses in terms that I will presently state.

(3.) I have, greatly against my inclination, allowed this suit to go on so far. The questions raised are, however, of first impression, and I thought it necessary to show such latitude as might enable the plaintiffs to put forward their best considered and most plausible case, and, if possible, to cite authorities, if any are available, specifying the functions alleged to be performed by mujawars-authorities enabling me to hold that the office is known to the law : in the sense that the existence of such an office, with defined functions, is recognised as a necessary part of the machinery required for the administration of the waqf, or at any rate as being conducive to the fulfilment by the trustees of their duties in the administration of such an endowment as is before me; or that the agglomeration of functions attributed to the alleged office could otherwise in some way be assumed by the plaintiffs. I accordingly postponed the hearing, in spite of well-founded protests from the trustees. Prior to the postponement, the questions that, in my opinion, actually arose, were put to the plaintiffs counsel so that they might not be taken by surprise. I also allowed the plaintiffs counsel to develop their case in opening it, with some fulness and much latitude, and to call their first witness Sayyad Yakub Sayyad Muhammad. But the witness spoke not of his own knowledge but of what he had heard, and objections were rightly taken to the relevance of his proffered evidence : Indian Evidence Act, Section 32, Sub-section (4), and Section 49.