ABDUL AZIZ Vs. DEORAO

JUDGEMENT

(1.) THE plaintiffs and defendants represent the Hindu and Mussalman residents of the village Murha Buzrug. The plaintiffs alleged that it was an ancient custom of theirs to take every year on stated occasions religious processions accompanied by music along certain public roads, but that the defendants obstruct these processions at a certain place on their route, where they allege that a masjid of theirs is situated; that on account of such obstruction the police have on several occasions prevented them from taking their processions with music by that place. The plaintiffs allege that what the defendants state is a masjid is only a takia or public cemetery and that even if it is a masjid the defendants have no right to obstruct the processions. Alleging that the obstruction is an infringement of their right, they pray for a declaration of their rights and a perpetual injunction to the defendants not to obstruct the processions.

(2.) THE defendants denied that the processions were ever taken by any road near masjid, that in accordance with a longstanding practice in Berar which had acquired the force of law no music of any kind whatsoever was played in front or on any side of a masjid by the Hindus on any festival, that this practice was always observed in respect of the masjid in Murha Buzrug, that the existence of the mosque by itself was a sufficient ground for stopping the music in front or on the sides of it and that no suit could be maintained against them because of the preventive action taken by the police in the interests of public peace and order.

(3.) IN this Court only two points have been argued. The first is with reference to Ex. 1 D. 3. This document is a copy of order dated the 16th June 1921 in a criminal case by which five Hindus, of whom one was Deorao, plaintiff 1, in this suit, were bound over under Section 107, Criminal P.C., to keep the peace for a year. The allegations found to be proved in that case were that a Hindu procession carrying the dead body of a Sadhu passed the masjid without stopping the music in front of it on the 19th January 1921 and that since that time there was ill-feeling between the Hindus named above and some Mahomedan residents of the village which was likely to result in a breach of the peace. Reference is made in the order to a kararnama (marked Ex. P-1 in that case). All that is said in the Magistrates' order about this kararnama is the following: In the year 1914 there was dispute in connexion with stopping baja in front of the masjid. The leaders on both sides passed agreement and amicably settled the dispute. The kararnama is filed Ex, P-1, According to this kararnama the music was stopped in front of the masjid.