Muma Dar & Ors vs Abdul Karim Dar & Ors
2021 Latest Caselaw 967 j&K/2

                                                             1




                               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                              AT SRINAGAR

                                                                                CIMA No. 122/2011


                Muma Dar & ors                                                   .........Petitioner(s)


                                             Through:       Mr. R.A. Bhat, Advocate.

                                       V/s



                Abdul Karim Dar & ors.                                         .......Respondent(s)

                                             Through:       Mr. M.Y. Bhat, Sr. Advocate with
                                                            Mr. M. Sultan, Advocate

CORAM: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

JUDGMENT/ORDER 26.8.2021

1. This is a Civil Ist Miscellaneous appeal against the judgment and order

dated 17.11.2011 passed by the learned 3rd Additional District Judge,

Srinagar whereby the appellants/defendants have been restrained from

causing any interference into the possession and management of

Baghwari Mohalla Mosque till the final disposal of the main suit.

2. Briefly stated the material facts are as under:

3. A civil suit for declaration and permanent injunction came to be filed in

the court of learned 3rd Additional District Judge, Srinagar wherein it was

stated that a mosque situate at Baghwari Mohalla belongs to the local

Jamiat-i-Ahl-Hadith sect and is controlled and run by the Managing

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Committee of the said sect. Consequential relief of permanent

prohibitory injunction was sought, restraining the defendants, who

belonged to the local Bazmi Tawheed sect from interfering into the

peaceful management of the said mosque by the local Jamiat-i-Ahl-

Hadith.

4. In the plaint, it was averred that the Baghwari Mohalla Mosque was

constructed by the followers of the Hanfi sect in the year 1960 and that

the said sect later on embraced and developed the thought of Jamiat-i-

Ahl-Hadith and converted the said mosque into Ahl-i-Hadith Mosque. A

revenue entry is also said to have been made showing the possession of

the local Jamiat-i-Ahl-Hadith sect over the said mosque. It was stated

that the local people belonging to Jamiat-i-Ahl-Hadith sect used to

control the said mosque from the year 1970 onwards till 1998 when

during militancy, the Bazmi Taweed sect followers' with the use of

muscle power forcibly took over the management of the said mosque.

The possession is then stated to have been retrieved again in the year

2008. Apprehending that the defendants would again take over the

management of the mosque, the suit was filed along with the

consequential relief of injunction.

5. In the written statement, the assertions made by the plaintiffs were

denied. It was stated that the management and possession of the mosque

in question was with the Bazmi Taweed sect and that the renovations,

improvements and repairs in the mosque was conducted under the

supervision and management of the said sect.

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6. An agreement is also stated to have been entered into wherein it was

agreed that the Ahl-i-Hadith sect would not interfere into the management

of the Baghwari Mohalla Mosque. It was stated that on account of the

attempts of the Ahl-i-Hadith sect to forcibly take over the possession and

management of the mosque situate at Baghwari Mohalla, the defendants

were forced to lodge a complaint with the police station concerned and

finally the learned Magistrate while exercising powers under section 145

of the CrPC directed the attachment of the mosque.

7. The trial court by virtue of the order impugned restrained the

appellants/defendants therein from causing any interference into the

possession and management of Baghwari Mohalla Mosque till the final

disposal of the main suit. With a view to arrive at this conclusion, the

court below placed reliance upon a khasra girdawari on 8.7.2008 i.e., one

week prior to the filing of the suit before the trial court. The trial court in

reference to the agreement relied upon by the defendants was of the

opinion that there was nothing on record that Ghulam Nabi Dar and

Abdul Rashid Dar, who had executed the agreement, had been authorized

by the respective sects to execute the said agreement especially when

they were not the parties to the suit and, therefore, they could not claim

management of the mosque in question based on the agreement till the

matter was proved finally at trial. The court below was, therefore, of the

opinion that the plaintiffs had made out a prima facie case in their favour

and, thus, passed the injunction impugned.

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8. Learned counsel for the appellants, however, referred to the preliminary

statement of plaintiff No. 3-Abdul Salam Lone in which a statement is

said to have been made by the said plaintiff that the Masjid was

constructed by the plaintiffs' sect in the year 1960 and that it was

demolished by the defendants and then re-constructed on gun point in

1998. It was further stated in the said statement that ever since it was re-

constructed, both the sects used to offer prayers in the said mosque. It

was also stated that an effort was made for joint management to which

the defendants did not agree and that the defendants stopped the plaintiffs

from offering prayers. In that regard, the said plaintiffs made a prayer

that the land, which belongs to the Ahl-i-Hadith sect, should be returned

to them.

9. Counsel for the appellants laid a lot of emphasis on the preliminary

statement of plaintiff No. 3 with a view to bring home the point that the

fact that the plaintiffs had made a prayer that the land of the mosque

should be returned to the Ahl-i-Hadith sect suggested that they were out

of possession. Even otherwise, it was reiterated that the court below had

based the entire order primarily on one single entry, which was recorded

in the revenue records a couple of days prior to the filing of the suit and

therefore, was unreliable.

10. With a view to get this position clarified, a specific question was put to

the counsel for the respondents/plaintiffs as to who precisely was in

possession, management and control of the mosque. Counsel for the

respondents/plaintiffs frankly admitted that the management and control

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of the mosque lay with the appellants/defendants. Counsel for the

respondents/plaintiffs, therefore, reiterated that this court while

entertaining the appeal had, by virtue of the order dated 24.11.2011 while

issuing notice, called for the records of the trial court and by virtue of

order dated 3.12.2011 stayed the operation of the order impugned. It was

stated that all alone, the appellants were and continues to remain in active

control, possession and management of the mosque in question, which

only goes to show that the view expressed by the trial court in the order

impugned was totally incorrect and untenable in law.

11. Having heard counsel for the parties and in view of the specific and fair

statement made by the learned counsel for the respondents-plaintiffs that

the appellants are in actual control, management and affairs of the

mosque in question and in view of the fact that the affairs of the mosque

have continued to be managed by them for the last at least more that 10

years from the date of the order dated 3.12.2011, I deem it appropriate to

let status quo continue on the spot till the matter is finally settled by the

trial court. I say so for the simple reason that the respondents in the

present case have failed to establish any event, which would have

suggested that after the passing of the order impugned by the trial court,

there was any attempt, by the appellants herein to take over the

management, control and possession of the mosque in question, which

succeeded, during the pendency of the suit and after the passing of the

order impugned. In the absence of any such averment on affidavit on

record, the assertion that the appellants were in possession, control and

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management of the affairs of the mosque in question cannot be

disbelieved.

12. For the reasons mentioned above, the appeal is allowed. Judgment and

order impugned is set aside. Status quo be maintained till the final

disposal of the suit.

13. Disposed of accordingly along with connected application(s), if any.

(DHIRAJ SINGH THAKUR) JUDGE SRINAGAR 26th August, 2021.

              NARESH

                                Whether the order is reportable:      Yes/No.




SYED MUJTABA HUSSAIN
2021.09.06 12:13
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integrity of this document



                3.8. (8 am)




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2021.09.06 12:13
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integrity of this document