T SYED PITCHAI ROWTHER Vs. KDEVAJI RAO

JUDGEMENT

(1.) From time immemorial there has existed a temple known as the Muthalamman temple on the village site of Ganguvaripatti in the Periyakulam Taluk and in comparitively recent years the Mohammadans of the village have erected a mosque a short distance away. In order to avoid friction between the two communities certain executive orders have been passed; but apparently there has been no trouble. The temple is situated in an unoccupied part of the village site and the worshippers of the temple have always congregated there on festival days for worship. Adjoining the mosque to the east is a pound, which was granted to the Mohammadans on the express understanding that they should not build over it and to the east of the pound is a plot that once. belonged to one Venkatachalam Chetti, who sold it in 1914 to the mosque. The Hindus now seek to restrain the Mohammadans from interfering with the worship and, in particular, from opening doors on the southern side of the plot recently purchased by them and from doing any other act which would offend the susceptibilities of the Hindus. The District Munsif gave an injunction permanently restraining the Mohammadans from interfering with the worship at festivals on the above site by passing along the same or by any user of their site, north of the above site, or of any structure on it, in a way obnoxious or interfering with the rights of such worship by the Hindus, during the period of their worship or festivals on the suit site . The learned Subordinate Judge of Dindigul, in appeal, went even further and issued an injunction restraining the Mohammadans from opening any doors to the south of their plot.

(2.) It is contended in this Court that one of the shops is erected on the site of the pound, in regard to which the Mohammadans had given an undertaking; but the plaintiffs did not allege this in their plaint and a perusal of the sale deed would indicate that in fact the defendants have not done so.

(3.) The Mohammadans have at no time denied the rights of the Hindus to worship on the site and to congregate there at times of festivals. They state, however, that from time immemorial they have been accustomed to walking across the natham and there is evidence that some sort of path does exist; and such usage is recognised in the survey plan. Mr. S. Srinivasa Aiyangar would put the rights of the Hindus to worship and congregate on a higher level than the rights of a pedastrian to cross the natham, on the ground that no person can acquire an easementary right to walk across the village site whereas the Hindus have acquired a right with which even the Government cannot now interfere, even though the site is grama natham and therefore poramboke. Although the Mohammadans do not deny that the Hindus have always worshipped there and have a right to do so, there is no finding that the rights of the Hindus to congregate there stands any higher than the rights of the villagers to walk across the site or to stand there; and certainly the Mohammadans have not conceded this. D.W. 1 states in his evidence that Mohammadans do stand on the site at times of festivals and there is no objection to their doing so. There is nothing in the evidence to indicate that it is impossible for both sides to enjoy their rights. This being so it is difficult to see how the Mohammadans can be restrained from enjoying their own property, which they have legally purchased for0 good consideration. I need not quote authorities which lay down the elementary proposition that a person is entitled to enjoy his own property in any way he pleases provided that he does not create a nuisance or interfere with the rights of others. This was well put in Kasim Alikhan V/s. Brij Kishore (1870) 2 N.W.P. 182: parties are at liberty to build what structure they please upon their own land; but if they interfere with the free enjoyment of their neighbour's property, they may become liable in damages for the injury that they do.