ETTIYAT AHMED KUTTY Vs. VAYALIKATH AYITHRAMAN KUTTY

JUDGEMENT

(1.) This second appeal is against the decree of the learned Subordinate Judge of South Malabar dismissing the plaintiffs suit which is a representative action filed on behalf of the Mussalmans of Feroke for an injunction directing defendant No. 1 to demolish and remove the structure put up in the plot which is claimed to be an adjunct of the Jemath Mosque at Feroke, for possession of the same by the plaintiffs on behalf of the mosque and the Mussalman public of Feroke and for granting all other reliefs to the plaintiffs for and on behalf of the mosque which the Court may deem fit to grant. The ground of the claim is that the Jemath Mosque belongs in common to the Feroke Musalman public, that the dead bodies are buried in the paramba of the mosque and that the plaintiffs congregrate at the said mosque for worship. The necessity for the institution of this suit is alleged to be a trespass by the defendant in that he has put up a shed and has been attempting to build a stone structure besides opening a teashop therein.

(2.) It is stated in the plaint that the karnavans or elders have been managing the affairs of the mosque; but it is not stated who the kamavans are Defendant No. 1 alleges that the suit property does not belong to the mosque and it is not trust property. He further set up title to the suit property in defendant No. 26 as mutawalli and denied the title of the plaintiffs to sue as it was the mutawalli alone that could maintain such a suit. Defendant No. 26 was impleaded as a party defendant to the suit. While supporting defendant No. 1 in the contention that he is mutawalli of the mosque and that the affairs of the mosque are under bis control, defendant No. 26 in his written statement alleges that the suit property does not belong to the mosque, that the mosque had no right over it at any time and that it is not useful in any way for the mosque. He. has also contended that the Mussalmans who assemble in the Jemath Mosque are not entitled to recover the suit property.

(3.) The points in controversy that arose on the pleadings were whether the suit property is trust property belonging to the mosque or private property as asserted by the defendants and whether the plaintiffs are competent to sue for all or any of the reliefs claimed in the plaint. The learned District Munsif who tried the suit came to the conclusion that the property is trust property attached to the mosque, that defendant No. 1 was a trespasser, and that plaintiffs Nos, 2, 4, 5, 6 and 8 were the elders who were in management of the affairs of the mosque without their being appointed as such by anybody. He, however, thought that a mandatory injunction was not necessary and he therefore gave a decree for possession on behalf of the general public of Feroke by directing defendant No. 1 to remove the basement on the plot which he erected in contemplation of the stone structure intended to be pat up by him. The learned Subordinate Judge dismissed the plaintiff's suit on the ground that the plaintiffs as worshippers of the mosque cannot maintain the suit for possession of the mosque property.