MUHAMMAD WALIUL HAG Vs. LUDPUT UPADHYA

JUDGEMENT

(1.) This is a second appeal from the decision of the District Judge of Patna affirming the decision of the Subordinate Judge. It appears from the findings of fact of the Courts below that from some of the springs at Rajgi the water has been led by artificial channels to artificially constructed tanks or pools (kunds) over a number of which certain families of Brahmans have for generations exercised supervision, and have collected the customary offerings from pilgrims who bathe at the pools. One of these pools is under the supervision of Mahomedans and is used by Mahomedans; while others are used by Hindus. The pool with which we are here concerned is entered in the survey map as plot 2349 and in the gair- mazrua-am khatian of the Record-of-Rights it is described as Saptadhara kund. A Hindu temple bearing plot 2348 opens on to the pool, and access to the pool has been guarded by iron gates for a time longer than 25 years before the institution of the suit. The Courts have found that this kund has been in actual possession of the Brahman custodians (Pandas) from ancient times. About 80 years ago one Sitaram, a kayestha of Baksanda, introduced some improvement in the Saptadhara kund and built the temple of the seven rishis which adjoins it. The Saptadhara kund is kept in repair and is cleaned by the Brahmans who receive the offerings of pilgrims and are the defendants in this suit. The suit was instituted by five Mahomedans, three of them residents of Rajgir village and two of other villages praying for a declaration that they have a right to bathe in the waters of the kund whenever they please. The Courts have found that the kund is in charge of its Brahman custodians and that no general right has been proved of Mahomedans or of any persons who are not Hindus to enter the sacred precincts for the purpose of bathing. The appeal would on the face of it appear to be concluded by the findings of fact of the Courts below, but Sir Sultan Ahmad argues that the law has been misunderstood and that in some respects the findings of fact are vitiated by misunderstanding of the effect of the evidence.

(2.) The entry in the Record-of-Rights is of gair-mazrua-am within an estate which was settled with the Nawabs of Hussainabad temporarily in 1781 and permanently eight years later. Sir Sultan Ahmad argues that since this pool is shown as lying within this zamindari, it should be presumed that the zamindar has complete right of control and that no such right of control can be claimed by the Brahman custodians of the pool, but the lower appellate Court has found that the rights of the Pandas were recognized at the time of the settlement so that although this pool with its adjoining temple may lie geographically within the zamindar's estate, it did not at any time strictly speaking form part of that estate. It appears from the rubkari of 1840 that this estate was originally granted in life mukarrari to Muhammad Yahia Khan ancestor of the Nawabs of Hussainabad and that it was resumed in 1840 when a record was prepared under Regn. 7 of 1822. Re- settlement was not made permanently until 1861, but this is apparently the rubakari of the resumption proceedings. The rubakari describes first the Mahomedan dedications in the estate, and what part of the estate may have been set aside to meet the expenses of such institutions. It describes in the second place the sacred places of the Hindus and how far they were sources of profit to the zamindar. It is there stated that the Brahman families who are custodians of the kund have the right of receiving offerings, and that these rights are ancestral so that persons who are not members of the families are excluded from the privilege. The report states that dues levied at a fair which was held every three years at Rajgir were excluded from the patwari's papers, but there is nothing in it which indicates that by the settlement any right was conveyed to the zamindar of interfering with the kunds which were places of worship for Hindus. I consider that taking this rubakari as a whole, the learned District Judge was entitled to come to the conclusion that the permanent settlement with the zamindar conveyed to him no right of interference with the kund. It has been observed by the Courts below that although the Mahomedan zamindar may now say that these kunds form part of the zamindari in the strictest sense of the word, he is at the present time only proprietor of a share in the estate, and other co-sharers definitely say that they have no right to interfere with the kunds. The entry in the Record-of-Rights cannot be read as warranting any presumption that the zamindar more than any other person has a right of control over these lands. There are two terms of khatian for non-agricultural land or waste land. In one (gair-mazrua-malik), is entered land, waste or uncultivated or utilised for building or non-agricultural purposes, which is under the control of the zamindar. In the other (gair-mazrua-am or public waste), is land of that kind not under the control of the zamindar, and the only presumption in that connection which can properly be drawn from the entry in the Record-of-Rights is that this pool is not under the control of the zamindar.

(3.) In the second place Sir Sultan Ahmad argues that it ought to have been presumed from the entry in the Record-of-Rights that the plaintiffs enjoyed the customary right which they claimed, that gair-mazrua-am means public waste, so that it should be presumed that all members of the public are equally entitled to enjoy it. In this khatian No. 483 we find that most of the entries are of Hindu temples and of their compounds or of Muhammadan mosques or sacred buildings and it is manifest that the entry of a plot in khatian No. 483 conveys no presumption that every member of the public irrespective of race or religion is entitled to enter the precincts of every plot described in the khatian. The adjoining temple is entered as plot 2348 while for plot 2349 the pool on which the temple opens out, the entry is Saptadhara kund. The learned District Judge has found that the Saptadhara kund is a place of special sanctity to the Hindus the kund of the seven Bishis, and as Sir Tej Bahadur Sapru on behalf of the respondents reasonably observes the framers of the Record-of-Rights though they plotted this appanage of the Hindu temple separately, would not have considered that any other description than that of Saptadhara kund should be necessary to indicate its sanctity. I do not consider that it can be held that any right of the plaintiffs to enter the precincts can be presumed from the entry in the Record-of-Rights.