HASHMAT HUSSAIN Vs. SIDDIQ HASAN

JUDGEMENT

(1.) There is a mosque known as the Shahjahani mosque situated in Saharanpur City. It was built, according to an inscription on the building, by Zulfiqar Khan in Hijri 1017 corresponding with 1636 A.D. According to Beala's Oriental Biographical Dictionary, Zulfiqar Khan was a nobleman of the reign of the emperor, Shahjahan. The plaintiffs are Shias and claim that he belonged to the Shia persuasion and that the mosque had been in the exclusive use and management of the Shia community from the time it was built. The defendants, on the other hand, contend that Zulfiqar Khan was a Sunni and that the mosque had been in the exclusive use and management of the Sunnis and that the Shias had no right to say prayers in the mosque or keep tazias in it.

(2.) On the 11 September 1920, thirteen persons, describing themselves as the representatives of the Shia community, entered into an agreement of reference to arbitration in regard to that mosque and appointed Mr. W.A. Silberrad, the then Collector of Saharanpur, as arbitrator to determine, after inspecting and examining the documentary evidence, which party was entitled to the mosque. The agreement of reference contemplated that the arbitrator was to award the mosque either to one party or to the other, and it distinctly stated that the mosque shall exclusively belong to the party to which it will be awarded by the arbitrator, and that the other party shall not have any right whatever in the mosque. As there was some ill-feeling and irritation due to this dispute among the members of the two communities Mr. Silberrad agreed to accept the reference and made an award on the 8 November 1920, wherein he discussed at length the history and origin of the foundation of the mosque and the evidence produced before him with regard to its user and found that Zulfiqar Khan, the founder of the mosque, belonged to the Sunni persuasion, that the mosque was originally built as a Sunni mosque, and that when a portion of the Ansari clan, to which Zulfiqar Khan belonged, became Shias they continued to use that mosque conjointly with those who remained Sunnis. He further found that the Sunni and Shia members of the Ansari clan continued to be on friendly terms and used the Shahjahani mosque for their respective prayers; but as time went on and the relations between the two communities became strained, the mosque remained practically in the use of the Sunnis subject to certain limited concessions granted to the Shias in regard to its use.

(3.) The present suit was filed by six members of the Shia community other than the persons who were parties to that arbitration under O.1, Rule 8 of the Civil P.C., claiming on behalf of the Shia community of Saharanpur that the mosque in question had been founded by a gentleman of the Shia persuasion, that It was a Shia mosque and that it had been under the management of the Shias. Two of the plaintiffs claimed to be the managers and mutawallis of the mosque. They further asserted that the defendants had made certain alterations after the award, which they had no right to do, and that the agreement of reference to arbitration was not binding on them or on the other members of the Shia community who were no parties to the reference, and that the award made by the arbitrator in pursuance of that reference was invalid and unenforceable.