MIRU Vs. RAMGOPAL

JUDGEMENT

(1.) This is a Letters Patent appeal by the defendants from the judgment of a Single Judge of this Court. The plaintiff is the sole zamindar of a certain mahal and in his plaint he sets out that Rahim Bakhsh formerly occupied a khasra plot No. 119 in the abadi and Rahim Bakhsh made a katcha platform on the said plot for offering prayers, and that this was the condition of affairs at the time of the partition in 1904, that there was no pacca or katcha mosque in the said plot, and that the defendants now desire to make a pucca mosque on the plot. The plaintiff therefore asked for an injunction against the defendants to restrain them from constructing any katcha or pucca mosque in this plot. The written statement alleged that there had always existed a katcha mosque on the plot in question, that in the last rainy season before the suit, which was brought in 1929, the mosque required repairs and the defendants demolished the mosque and dug up the foundations and desired to rebuild it with the katcha bricks, but the Hindus objected to bricks being used from their tanks and accordingly the defendants brought pucca bricks from Saharanpur, It was claimed that in para. 8 contesting defendants have a right to build a mosque in a pucca manner, that the site of the mosque cannot be the property of the plaintiff or anyone else, that it is wakf property and that every Mahomedan has a right to make a pucca mosque in place of a katcha mosque. The trial Court framed the issue whether any katcha mosque has been in existence on plot No. 119 and it found in the negative. The lower appellate Court reversed the finding on this issue and held that "in my opinion the...mosque existed in the year 1904." The finding was that there had been originally a raiyat Rahim. Bakhsh in the house and he had left the house and gone to another house and that the house had been used as a place of worship by the Mussalmans of the village for more than 30 years, that Rahim Bakhsh had died 10 or 11 years before the suit, that various constructions had been made to adapt the house to a mosque during the time it was a katcha mosque, that is, there was a room and in front a thatched verandah, and a platform with a pucca drain and hummam for heating water and a bath room and a lavatory and a hand tube well. The lower appellate Court inspected the spot and came to a careful finding of fact on the issue before it.

(2.) Considerable argument has been made as to the correctness of that finding and the Single Judge of this Court set the finding aside and held that the facts known would not result in the finding that there was a mosque. The Judge observed : "I am satisfied that the decision of the lower appellate Court cannot be supported."

(3.) We find that the lower appellate Court based its finding on not only the oral evidence produced by the parties, but also certain documentary evidence. This documentary evidence consisted of three documents, firstly, there was a khasra Ex. A of the year 1311 Fasli (1903-04). This khasra states that plot No. 119 was entered as "masjid." During the partition the usual partition proceedings were drawn up under Section 114, Land Revenue Act, detailing how the partition is to be made. In this partition proceeding at a certain place, following what is laid down in Section 121, there was a note in regard to places of worship and burial grounds. The partition proceeding entered that there was a mosque, and this entry was crossed out by a line and it was stated that on this No. 119 was a chabutra for the purpose of prayers. Considerable argument was made by counsel for the plaintiff in regard to this entry but it should be noted that where the entry is made at all in this portion of the partition proceedings, the entry must be one in regard to Section 121, Land Revenue Act, which deals with places of worship and burial grounds. As the number is not a burial ground, it must come into the other category of a place of worship. The defendants were tenants in the village and they were not parties to the partition proceedings. On the other hand, plaintiff's predecessor was a party to the partition proceedings. All the co-sharers in the partition proceedings were Hindus. In the particular qura which was formed for the plaintiff Ex. D, there is this No. 119 shown again as masjid, that is in the year 1907. The plaintiff's predecessor therefore consented to the entry in his qura of this No. 119 as masjid. If he had had an objection to that entry, he could have made an application to the Court under Section 111, Land Revenue Act, The fact that he did not make any objection to the entry shows that he acquiesced in the entry. On this evidence we consider that the lower appellate Court had sufficient grounds to come to the finding of fact at which it arrived. That finding of fact is that the number in question has been used since before the partition in 1904 for the purpose of a mosque.