Gulam Abbas & Ors Vs. State of U.P. & Ors [1981] INSC 188 (3 November 1981)

TULZAPURKAR, V.D.

DESAI, D.A.

SEN, A.P. (J)

CITATION: 1981 AIR 2198 1982 SCR (1)1077 1982 SCC (1) 71 1981 SCALE (3)1707

CITATOR INFO :

R 1984 SC 51 (15) R 1988 SC 93 (1)

ACT:

Constitution of India, 1950, Articles 25 and 26-Right in enjoy the religious faith and performance of religious rites, practices and observances on certain plots and properties belonging to Shia community, which have already been adjudicated, determined and declared in their earlier litigation-Whether such a right is enforceable through a petition under Article 32 of the Constitution-Scope of Article 32.

Res judicata, bar of-Civil Procedure Code, section 11, explained.

HEADNOTE:

Uttar Pradesh Muslim Wakf Act, 1960 (Act XVI of 1960) repealing Uttar Pradesh Muslim Wakf Act, 1936 (Act XIII of 1936-Legal position as to the finality of Survey Reports and effect of registration of Wakfs already made under the earlier Act long before it was repealed-Words and phrases "Every other Wakf " in section 29 of the 1960 Act, meaning off.

Criminal Procedure Code, 1973, section 144-Whether an order made under section 144 Criminal Procedure Code is judicial or quasi-judicial order or whether it is passed in exercise of an executive power in performance of executive function amenable to writ jurisdiction under Article 32 of the Constitution-Nature and power under the section and what it authorises the executive magistracy to do and in what circumstances, explained.

In Mohalla Doshipura of Varanasi city, there are two sects of Mohamedans-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the Moharram but in a different manner. Nine plots bearing Nos. 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 in the said Mohalla and buildings and structures thereon belong to the Shia Waqf of Mohalla Doshipura. Shias of that Mohalla numbering about 4000 constitute a religious denomination having a common faith and they observe Moharram for two months and eight days in a year in memory of Hazrat Imam Hussain who along with his 72 followers attained martyrdom at Karbala in Iraq. The said religious belief is practised by the men-folk and the women-folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowhas, Marsia, doing 1078 Matam (wailing) and taking out processions with Tabut Tazia, Alams, Zukinha, etc. For performing these religious rites, practices and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures thereon. The entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the Moharram and that in case they do not perform all these rites, practices, observances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place.

The petitioners, in the writ petition, and through them the Shia community, contended as follows: (i) that their customary rights to perform several religious rites, practices, observances and functions on the said nine plots and the structures thereon having been already determined in their favour by decisions of competent civil courts ending with the Review Petition 36177 in Civil Appeal 941176 in the Supreme Court, the respondents must be commanded by a mandamus not to prohibit or restrain the Shias from performing their religious rites etc. On the said plots;

(ii) that the registration of Shia Waqfs concerning the plots and structures for performance of these practices and functions under sections 5 and 38 of the Uttar Pradesh Muslim Wakfs Act, 1936, which had become final as no suit challenging the Commissioner's report and registration was filed within two years by any member of Sunni Community or the Sunni Central Wakf Board, also concluded the said rights in their favour; and (iii) that the power under section 144 Criminal Procedure Code is being invariably exercised perversely and in utter disregard of the lawful exercise of Shias' legal rights to perform their religious ceremonies and functions and instead of being exercised in aid of such lawful exercise it is exercised in favour of those who unlawfully and illegally interfere with such lawful exercise under the facile ground of apprehension of imminent danger to peace and tranquility of the locality.

The respondents contested and contended as follows: (i) that a Writ Petition under Article 32 for such a relief of declaration is not maintainable in as much as the basic purpose of a petition under Article 32 is to enforce existing or established fundamental rights and not to adjudicate and seek a declaration of such rights or entitlement thereto; (ii) that no mandamus under Article 32 is competent inasmuch as orders under s. 144 Cr. P.C. these are judicial or quasijudicial; alternatively even if it were assumed that these orders are administrative or executive orders passed by the Executive Magistrates, they cannot be challenged unless the Magistrate has exceeded his powers or acted in disregard to the provisions of the law or perversely; and (iii) that the writ petition was barred by res judicata or principles analogous to res judicata by reason of the Supreme Court's decisions in (a) Civil Appeal 941/1976. (b) Review Petition 36 of 1977 and (c) order permitting withdrawal of S.L.P. 6226 of 1978 on 4-12-1978.

Allowing the petition, the Court ^

HELD: 1: 1. The petitioners and through them the Shia community of Mohalla Doshipura, Varanasi, have established their customary rights to perform 1079 their religious rites, practices, observances, ceremonies and functions minus the A recitation and utterance of Tabura over the plots in question. [1136 B-C] 1: 2. The litigation arising out of Suit No. 849 of 1878 (Sheik Sahib and ors. v. Rahtnatu and ors.) declared the mosque in plot No. 246 to be a public mosque at which every mohammedan became entitled to worship and further declared the Shias' right to keep their Tazia in the apartment attached to the mosque and repair it in the verandah thereof and to hold their majlises on 9th and 12th of Moharram on or near the platform on the surrounding ground of the mosque as early as on 29th March, 1879. [1098 B, G-H] The alleged customary rights of Sunnis in the matter of burial of their dead on the plot No. 60211133 was decided against them, in the Suit No. 42411931 filed by the then Maharaja of Banaras in the Court of Addl. Munsiff, Banaras.

[1099 A-B, G] The third and most important Suit No. 232/1934 filed in the court of City Munsiff, Banaras (Fathey Ullah and Ors. (Sunnis) v. Nazir Hussain and Ors. (Shias) in respect of all the plots in Khasra Nos 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 which were claimed to be Sunni Wakfs by long user, also went against the Sunnis and in favour of the Shias, clearly establishing the title or ownership of Shias over at least two main structures Zanana Imambara on plot No. 245 and Baradari on plot No. 247/1130 and to the land below the structures and what is more substantially the customary rights claimed by the Shia Muslims over the plots and structures were upheld.

[1100 H, 1101 A-B, 1102 F-G] The said suit 232/34 had been filed in the representative capacity both as regards the Sunni-plaintiffs and Shia-defeadants and all the formalities under order I rule 8 of the Civil Procedure Code had been complied with and as such he final decision in that litigation is binding on both the communities. [1104 B-C, G-H] 2 :1. Ordinarily adjudication of questions of title or rights and granting declaratory relief consequent upon such adjudication are not undertaken in a Writ Petition under Article 32 of the Constitution and such a petition is usually entertained by the Supreme Court for enforcement of existing or established title or lights for preventing infringement or encroachment thereof by granting appropriate reliefs in that behalf. Here, what Shia community is seeking by the Writ Petition is enforcement of their customary rights to perform their religious rites, practices, observances and functions on the concerned nine plots and structures thereon which have already been adjudicated, determined and declared in their favour by decisions of competent Civil Courts in the earlier litigations and that the declaration sought in the prayer clause is really incidental. [1097 A-C] 2: 2. It is true that title and ownership of the plots of land in question is distinct from title and ownership of structures standing thereon and both these are again distinct from the customary rights claimed by the members of the Shia community to perform their religious ceremonies and functions on the plots and the structures thereon. However, even if the petitioners and through them the Shia community are unable to prove their existing or established title either to the concerned plots or to the structures standing thereon but they are able to 1080 prove that they have existing or established customary rights to perform their religious ceremonies and functions on the plots and the structures thereon simultaneously complaining of illegal deprivation or encroachment by executive officers at the behest of the respondents or the Sunni community the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them. [1097 C-F] 3: 1. It is well settled that section 11 of the Civil Procedure Code is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in section 11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives, namely, that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation. The technical aspects of section 11 of Civil Procedure Code, as for instance, pecuniary or subject-wise competence of the earlier forum to adjudicate the subject-matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked. Even under section 11 of the Civil Procedure Code the position has been clarified by inserting a new Explanation VIII in 1976 [1105 C-D, 1107 A-B] 3: 2. In the instant case; (a) it was not disputed that the Munsif's Court at Banaras was competent to decide the issues that arose for determination before it in earlier litigation and, therefore, the decision of such competent court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata; (b) not only were the Sunnis' customary rights over the plots and structures in question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs (Sunni Muslims) has sought an injunction restraining the Shias from exercising their customary rights. Therefore, the decision in this litigation which bore a representative character not merely negatived the Sunnis' customary rights claimed by them over the plots and structures but adjudicated, determined and declared the Shias' entitlement to their customary rights to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both the communities of Mohalla Doshipura; (c) there is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias' entitlement to customary rights over the plots and structures in question, whatever be the position as regards their title to the plots or structures; and (d) a clear case has been made out of an existing or established entitlement to the customary rights in favour of the Shias' community to perform their religious ceremonies and functions over the plots and structures in question under the decrees of competent Civil Court for the enforcement of which the instant Writ Petition has been filed. [1107 B-H, 1108 A] Rajah Run Bahadoor Singh v. Musumut Lachoo Koer, XII I.

A. 23: Mst. Gulab Bai v. Manphool Bai, [1962] 3 SCR 483;

Daryao and others v. State of U.P. [1962] 1 SCR 574;

Gulabchand Chhotalal parikh v. State of Bombay (now 1081 Gujarat), [1965] 2 SCR 547 and Union of India v. Nanak Singh, [1968] 2 SCR 887, referred to.

4:1. Broadly speaking, while repealing the 1936 Act, the 1960 Act maintains and preserves the finality and conclusiveness accorded to the Survey Reports completed and submitted by the Wakfs Commissioners under the former Act and the registration of Wakfs under the 1936 Act has been kept alive and effective as if such registration has taken place under the latter Act and registration of Wakfs under the latter Act has been permitted only in respect of Wakfs other then those which have already been registered under the former Act. A perusal of sections 6, 9, 28 and 29 of the 1960 Act and sections 4(3), 4(5), 5(1), (2), (3) and 39 of the 1936 Act clearly show that the finality and conclusiveness accorded to the Commissioner's report under section 5(3) of the 1936 Act has been preserved and the registration of Wakfs under the 1936 Act has been maintained under the 1960 Act notwithstanding the repeal of the former Act by the latter. In other words any Survey Report submitted under the 1960 Act and any registration made under the 1960 Act will be futile and of no avail in regard to Wakf properties respecting which the Commissioner's Report under the 1936 Act has become final and registration has been effected under the 1936 Act.[1108H, 1109A, 1110 F-G] 4:2. In the instant case; (a) having regard to the six properties being specifically asked to be entered in the list of Shia waqfs by Imam Ali Mahto in his application and the order made thereon, all the properties mentioned in the application must be regarded as having been entered in the list of Shia wakfs by the Chief or Provincial Commissioner for Wakfs and the Notification under section 5(1) related to all those properties as having been notified to be Shia Wakfs particulars whereof were stated to be available in the Board's office. The Nota Bena at the foot of the Notification amounted to sufficient particularisation of the properties notified as Shia Wakfs. Non-mentioning of those properties as Sunni Wakfs in Appendices VIII and IX sent to the Sunni Central Wakfs Board must amount to a notice to the Sunni Board and the Sunni Muslims that these had been enlisted as Shia Wakfs. Admittedly, no suit was filed either by the Sunni Central Board or any other person interested in those Wakfs challenging the decision recorded in his Report by the Chief or Provincial Commissioner for Wakfs within the time prescribed under section 5(2) of the Act and, therefore, the Chief Commissioner's Report together with the appendices X and XI thereto dated 28th/31st October, 1938, on the basis of which the Notification dated 15th January, 1954 was issued and published in Official Gazette on 23rd January, 1954, must be held to have become final and conclusive as between the members of the two communities;

(b) the Notification dated 26-2-1944 issued by the Sunni Wakf Board on the basis of material which did not form part of the Chief Commissioner's Report would be in violation of section 5(1) of the 1936 Act; (c) Notice issued by the Shia Board under section 53 of the 1936 Act complaining about the entry at Serial No. 224 must be regarded as having been issued ex majori cautela; and (d) even if it were assumed for the purposes of argument that entry at Serial 224 in the Notification dated 26th February, 1944 refers to the mosque in question it cannot affect the customary rights of the petitioners and through them the Shia community to perform their religious ceremonies and functions over the other 8 plots and structures thereon which had been listed as Shia Wakfs under the Notification dated 15th January, 1954, especially when it is now common ground 1082 that the mosque on Plot No. 246 is a public mosque constructed by general subscriptions and is accessible to members of both the sects for offering prayers and doing worship therein; (e) the registration under section 38 of the 1936 Act would be available to the petitioners and must prevail over the subsequent registration, if any, obtained by the Sunnis in respect of some of the properties under the 1960 Act; really speaking such latter registration would be non est in the eye of law. Even on the second foundational basis the Shias have proved their existing or established entitlement to their customary rights to perform their religious ceremonies and functions on the concerned plots and structures thereon.[1113 B-G, 1115 A-B, 1116 E-A, 1117 A-B] 4:3. Shias are claiming the right to perform their religious ceremonies and functions on the plots and structures in question not so much on the basis of any title or ownership thereof but on the basis of customary exercise since time immemorial and they have been claiming such customary rights by prescription over the plots belonging to the Maharaja of Banaras as Zamindar and superior title- holder and the prescriptive rights have enured for the benefit of all the Shias notwithstanding such superior title in the Maharaja and if that be so they will also enure for their benefit as against any derivative title claimed by anyone under the Maharaja. Moreover when these plots and structures, particularly these three plots were being registered as Shia Wakfs under the U.P. Wakfs under the U.P.

Muslims Wakfs Act 1936 by the Shia Board and Sanads or Certificates of Registration in respect thereof were being issued in December 1952, the two Sunni Lessees who are said to have obtained a lease on 20.4.1952 did not raise any objection to such registration. The Shias' customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title. [1119 C-G] 5:1. Having regard to such implementation of the concept of separation of judicial functions from executive or administrative functions and allocation of the former to the Judicial Magistrate and the later to the Executive Magistrates under the Code of 1973, the order passed by a District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate under the present section 144 is not a judicial order or quasi-judicial order, the function thereunder being essentially an executive (police) function.

[1125 E-G] 5:2. It is true that before passing the order the District Magistrate, Sub-Divisional Magistrate or the Executive Magistrate gives a hearing to parties except in cases of emergency when exparte order can be made under section 144(2) by him without notice to the person or persons against whom it is directed, but in which cases on an application made by any aggrieved person he has to give hearing to such person under section 144(5) and thereupon he may rescind or alter his earlier order. It is also true that such an order made by the Executive Magistrate is revisable under section 397 of the Code because under the Explanation to that section all Magistrates, whether executive or judicial or whether exercising appellate or original jurisdiction, are deemed to be inferior Courts for purposes of the revisional power of the High Court or Court of Sessions. But the fact that the parties and particularly the aggrieved party are heard before such an order is made merely ensures fair play and observance of audi alterem partem rule which are regarded as essential in the performance of any executive or administrative function and the further fact that a revision lies against the order of the executive magistrate either to the Sessions Court or to the High Court 1083 removes the vice of arbitrariness, if any, pertaining to the section. In fact, in the three decisions of the Supreme Court which were relied upon by counsel for respondents 5 and 6, namely, Babu Parate's case, K.K. Mishra's case and Madhu Limaye's case where the constitutionality of section 144 of the old Code was challenged on the ground that it amounted to unreasonable restriction on the fundamental right of a citizen under Article 19(1) of the Constitution, the challenge was repelled by relying upon these aspects to be found in the provision. However, these aspects cannot make the order a judicial or quasi-judicial order and such an order issued under section 144 of the present code will have to be regarded as an executive order passed in performance of an executive function where no lis as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made and as such it will be amenable to writ jurisdiction under Article 32 of the Constitution.[1125H, 1126-F] 5:3. The power conferred under section 144 Criminal Procedure Code 1973 is comparable to the power conferred on the Bombay Police under section 37 of the Bombay Police Act, 1951-both the provisions having been put on the statute book to achieve the objective of preservation of public peace and tranquility and prevention of disorder and it has never been disputed that any order passed under section 37 of the Bombay Police Act is subject to writ jurisdiction of the High Court under Article 226 of the Constitution on the ground that it has the effect of violating or infringing a fundamental right of a citizen. The nature of the power under both the provisions and the nature of function performed under both being the same by parity of reasoning an order made under section 144 Criminal Procedure Code, 1973 is amenable to writ jurisdiction either under Article 32 or under 226 of the Constitution if it violates or infringes any fundamental right. [1126 F-H, 1127 A-B] 5:4. In urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable, a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf may, by a written order stating the material facts of the case, direct a particular individual, or persons residing in a particular place or area, or the public generally when frequenting or visiting a particular place or area, (i) to abstain from a certain act or (ii) to take certain order with respect to certain property in his possession or under his management, if he considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person lawfully employed, or danger to human life, health or safety, or a disturbance of public tranquility, or a riot or an affray. Sub-section (2) authorises the issuance of such an order ex-parte in cases of emergency or in cases where circumstances do not admit of the serving in due time of a notice upon the person or persons against whom the order is directed but in such cases under subsection (5) the executive magistrate, either on his own motion or on the application of the person aggrieved after giving him a hearing, may rescind or alter his original order. Under Sub- section (4) no order under this section shall remain in force for more than two months from the making thereof unless under the proviso thereto the State Government by Notification directs that such order shall remain in force for a further period not exceeding six months.[1127 H, 1128 A-E] 1184 The entire basis of action under section 144 is provided by the urgency of the situation and the power there under is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquility.

Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail.

The section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of Civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlement to rights have already been adjudicated and have become the subject-matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the exercise of his power under section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquility the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, if there be such and the lawful exercise thereof rather than in suppressing them. In other words, the Magistrate's action should be directed against the wrong-doer rather than the wronged. Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant. Legal rights should be regulated and not prohibited all together for avoiding breach of peace or disturbance or public tranquility. The key-note of the power in section 144 is to free the society from menace of serious disturbances of a grave character and the section is directed against those who attempt to prevent the exercise of legal rights or others or imperil the public safety and health.[1128 E-H, 1129 A-D, 1138B] Muthialu Chetti v. Bapun Sahib, ILR 2 Mad. 140;

Parthasaradi Ayyangar v. Chinna Krishna Ayyangar, ILR 5 Mad.

304 and Sundram Chetti and Ors. v. The Queen, ILR 6 Mad.

203, approved.

Hasan and Ors. v. Muhammad Zaman and Ors. 52 I.A. 61 and Haji Mohammad Ismail v. Munshi Barkat Ali and Ors.,24 Cr. L.J. 154, applied.

Madhu Limaye's case, [1971] 2 SCR 711, followed.

D.V. Belvi v. Emperor, AIR 1931 Bom. 325; Queen Empress v. Tirunarasimha Chari, I.L.R. 19 Mad. 18; Muthuswami Servaigram and Anr. v. Thangammal Ayiyar, AIR 30 Mad. 242;

Bondalpati Thatayya v. Gollapuri Basavayya and Ors., AIR 1953 Mad. 956; Babulal Parate's case [1963] 3 SCR 432; K.K. Misra's case.

1085 [1970] 3 SCR 181; Sahibzada Saiyed Muhammed Amirabbas Abbasi and Ors. v. The State of Madhya Bharat and Ors., [1963] 3 SCR 18, The Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority, [1960] 3 SCR 177, Smt.

Ujjam Bai's case, [1963] 1 SCR 778, N. S. Mirajkar's case, [1966] 3 SCR 744, explained and distinguished.

6:1. After all the customary rights claimed by the petitioners partake of the character of the fundamental rights guaranteed under Articles 25 and 26 of the Constitution to the religious denomination of Shia Muslims of Varanasi, a religious minority, who are desirous of freely practising, their religious faith and perform their rites, practices, observances and functions without let or hindrance by members belonging to the majority sect of the community, namely, Sunni Muslims and as such a positive approach is called for on the part of the local authorities.

It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure.[1133F-H.1134A] 6:2. In the instant case, the earlier litigations which was fought right up to the Supreme Court cannot be regarded as between the same parties, in as much as the same was not fought in representative character while the present writ petition is litigated between the petitioners and the respondents representing their respective sects; further, it was felt by the Supreme Court that proper adjudication would not be possible without impleading the two Boards (Shia Central Wakf Board and Sunni Central Wakf Board) notices were issued to them and they were also impleaded as parties to the petition who have filed their respective affidavits in the matter and have been heard through respective counsel. Moreover the earlier decision of the Supreme Court in Civil Appeal No. 941 of 1976 did not record any decision on the rights of the parties on merits but the Court took the view that the parties should be relegated to a civil suit on the assumption that the petitioners before the Allahabad High Court (i.e. W.P. No.2397 of 1978) had raised disputed questions of title and the Allahabad High Court had decided them for the first time in the writ petition;

irrespective of whether the assumption made by the Supreme Court was right or wrong; the fact remains that there was no adjudication or decision on the petitioners' right on merits as a result of the final order passed by the Supreme Court in the appeal, which was confirmed in the Review Petition;

all that could be said to have been decided by the Supreme Court in Civil Appeal No. 941 of 1976 and Review Petition No. 36 of 1977 was that parties should get their rights adjudicated in Civil Suit. For these reasons it is obvious that neither res judicata nor principle analogous to res judicata would bar the present writ petition. [1134 G-H, 1135 A-D]

ORIGINAL JURISDICTION: Writ Petition No. 4675 of 1978.

(Under article 32 of the Constitution of India) M.C. Bhandare, Mrs. Urmila Kapoor, Mrs. Shobha Dikshit, Hasan Imam, Shanker Saran Lal and Miss Kamlesh Bansal for the Petitioners.

1086 O.P. Rana and S. Markandeya for Respondents Nos. 1-4.

Anil B. Dewan, K.L. Hathi, P. Parmeswaran, P.C. Kapoor and M.A. Quadeer for Respondents Nos. 5-6.

Haider Abbas and Miss Kamini Jaiswal for Respondent No. 8 (Shia Waqf Board, U.P.) F.S. Nariman, M. Qamaruddin, Mrs. M. Qamaruddin, Z.

Jilani and Mrs. Sahkil Ahmed for Respondent No. 7 (U.P. Sunni Central Board of Waqf) M.C. Dhingra for Intervenor-Institute for Re-writing History.

The Judgment of the Court was delivered by TULZAPURKAR, J. By this writ petition filed under Art.

32 of the Constitution of India the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi are complaining against the various actions of the respondents (including respondents 5 and 6 as representing the Sunni community of Mohalla Doshipura) which constitute serious infraction and/or infringement of their fundamental rights guaranteed to them under Arts. 25 and 26 of the Constitution in the matter of enjoying their religious faith and performance of religious rites, practices and observances on certain plots and properties situated in the said Mohalla of Doshipura, Police Station Jaitpura (formerly Adampur) in the city of Varanasi and in particular are seeking a declaration that the 9 plots of land bearing plot Nos. 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 in the said Mohalla and buildings and structures thereon belong to the Shia Waqf of Mohalla Doshipura and that the members of Shia community of that Mohalla have a right to perform their religious functions and practices on the said plots and structures thereon as also an appropriate writ, direction or order in the nature of mandamus commanding respondents 1 to 4 not to prohibit or restrain the Shias of the Mohalla from performing their religious functions and practices thereon.

It may be stated that this Court by its order dated December 12, 1978 not merely granted permission to the petitioners under Order I Rule 8 C.P.C. to institute this action qua themselves as representing the Shia community and respondents 5 and 6 as representing Sunni community, but directed at certain stage of the hearing that the two Waqf Boards in U.P. State, namely, Shia 1087 Central Waqf Board and Sunni Central Waqf Board be impleaded as parties to the petition as their presence was felt necessary for complete adjudication of the controversy and even otherwise under the U.P. Muslim Waqf Act, 1960, which has been done and both the Waqf Boards have also been heard through their counsel in the matter.

In Mohalla Doshipura of Varanasi City there are two seats of mohammedan-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the MOHARRAM but in a different manner. The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect numbering about 4000 constitute a religious denomination having a common faith and they observe MOHARRAM for two months and eight days in a year in memory of Hazrat Imam Hussain who alongwith his 72 followers attained martyrdom at Karbala in Iraq. The said religious belief is practised by the men-folk and the women-folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowhas, Marsia, doing Matam (wailing) and taking out processions with Tabut Tazia, Alama, Zuljinha, etc. For performing these religious rites, practices and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures on some of them, particulars whereof are as under:- Plot No. 246: on which stands a Mosque which, it is common ground, belongs to both the sects as it was constructed out of general subscription from members of both the sects and every Mohammedan is entitled to go in and perform his devotions according to the ritual of his own sect or school.

Plot No. 247/1130: on which stands the Baradari (Mardana Imambara-structure of white stone having 12 pillars) constructed by Shias in 1893 used for holding Majlises, Recitations, Marsia and doing other performances.

Plot No. 245: on which there is a Zanana Imambara used by Shias ladies for mourning purposes and holding Majlises etc.

1088 Plot No. 247: on which there is Imam Chowk used for placing the Tazia thereon (said to have been demolished by the Sunnis during the pendency of the instant proceeding).

Plot No. 248/23/72: a plot belonging to one Asadullah, a Shia Muslim, with his house standing thereon.

Plot No. 246/1134: on which stands a Sabil Chabutra (platform for distributing drinking water) belonging to one Nazir Hussain, a Shia Muslim.

Plots Nos. 602/1133, 602 and 603: being vacant plots appurtenant to the Baradari in plot No. 247/1130 used for accommodating the congregation assembled for Majlises etc. when it over-flows the Baradari.

Particulars of the religious rites, practices and functions performed by the members of the Shia community on the occasion of the observance of MOHARRAM RE:

(a) the Tazia (representing and signifying the dead body of Hazrat Imam Hussain) is kept in the Baradari on plot No. 247/1130 and for the first 12 days of MOHARRAM Majlises (religious discourses) of men-folk and women-folk is held daily-by the men folk in the Baradari and on the adjoining plot Nos 602/ 1133, 603 and 602 and by the women-folk in the Zanana Imam Bara on Plot No. 245.

(b) On the 6th day of MOHARRAM the Zuljana procession (a procession of the replica of the horse of Prophet Mohammed, which was also killed at the Karbala at the time of martyrdom of Hazarat Imam Hussain) of not less than 5000 Shias from all over Banaras City is brought to the Baradari in which the Tazia is placed and after visiting the Tazia there the horse procession moves in the whole city of Varanasi non-stop for another 36 hours and terminates at the place of its origin. Offerings to the horse are made not only by the Shias 1089 but also by persons of other communities during the procession under the religious belief that such offerings bring in good fortune.

(c) On the 10th day of MOHARRAM, the Tazia bedecked with flowers is taken out in huge procession to Karbala situated near Lord Bharon, 3 miles from Doshipura (the place signifying the Karbala in Iraq where martyrdom occurred), where the flowers of the Tazia are buried and then Majlis is held at that place.

(d) On the 11th and 12th day of MOHARRAM Majlis (religious discourse) is held and the Qurankhani and Tajia are performed in the Baradari and the adjoining plots which consist of offering of prayers, recitations of Quran Sharif, Nowhaz (short melancholic poems) and Marsias (poems of grief and sorrow)-these being performed both by men-folk and women-folk, the latter at Zanana Imam Bara.

(e) On the 25th day of MOHARRAM, being the death anniversary of Hazarat Zanulabadin s/o Hazrat Imam Hussain, again Majlis, Matam (wailing accompanied by breast-beating), Nawhaz and Marsias are held and performed in the Baradari and the adjoining plots by men and in Zanana Imambara by women.

(f) On the 40th day of the MOHARRAM Chehalum ceremony of Hazrat Imam Hussain is performed when Majlis, Matam, Nawhaz and Marsia are held, the Tazia bedecked with flowers is taken out in procession up to Karbala near Lord Bhairon where again the flowers are buried with religious ceremonies and the Tazia is brought back to the Baradari in Doshipura.

(g) On the 50th day of the MOHARRAM i.e. 50th day of the martyrdom of Hazrat Imam Hussain Pachesa is performed by taking out the Tazia again in procession to the Karbala and after burial of flowers it is brought back to the Baradari. On both these days i.e. Chehalum and Pachesa, Majlis, Qurankhani, Nawhaz, Marsias and Matam are performed on the Baradari, 1090 adjoining plots and the Zanana Imam Bara in Doshipura.

(h) Four days after the Moharram period the Shias observe the Barawafat which according to them is the death anniversary of Prophet Mohammad and on this day again on the Baradari, adjoining plots and Zanana Imambara Majlis is held which is accompanied by Qurankhani, Nawhaz and Marsias in which menfolk and women-folk participate.

It is the case of petitioners that the Tazia at Doshipura is a unique Tazia in the whole country, being made of fine wood carvings, about 15 ft. in height, having five storeys, and decorated with gold and silver and would be of the value of not less than Rs. 3 lakhs. According to the petitioners the entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the MOHARRAM and that in case they do not perform all these rites, practices, observances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place. The aforesaid religious faith and the performance of the rites, practices, observances and functions detailed above constitute their fundamental rights guaranteed to them under Arts. 25 and 26 of the Constitution and the members of the Shia community of Mohalla Doshipura have a customary right to perform these on the said nine plots and in or about the structures standing thereon from time immemorial.

The Petitioners and through them the Shia community of Mohalla Doshipura are basing their customary rights to perform the aforesaid religious rites, practices, observances and functions on the said nine plots and the structures thereon on two foundations: (1) Decisions of competent civil courts adjudicating these rights in their favour in earlier litigations and (2) Registration of Shia Wakfs concerning the plots and structures for performance of these practices and functions under secs. 5 and 38 of the U.P. Muslim Wakfs Act, 1936 which has become final as no suit challenging the Commissioner's Report and registration was filed within two years by any member of Sunni community or the Sunni Central Wakf Board. In other words previous decisions of Civil Courts and registration of their Shia Wakfs under the U.P. Muslim 1091 Wakfs Act. 1936 have concluded the said rights in their favour and therefore Counsel for the Petitioners pointed out that the prayer for declaration in the Writ Petition was really incidental, the rights in favour of the Shia community having been already determined and the real grievance was regarding the infringement of their said rights and their enforcement and hence the substantial prayer was for mandamus commanding the respondents not to prohibit or restrain the Shias from performing their religious rites, practices, observances and functions on the plots and the structures standing thereon.

The Petitioners' case further is that after the final declaration by the court of law in regard to their rights in their favour and the rejection of the false claims of the Sunnis the position in Mohalla Doshipura remained satisfactory for nearly two decades and the Shias could perform their religious functions and ceremonies without any let or hindrance but from the year 1960 onwards the Sunnis, who were in majority and were able to muster support of local politicians and the police, started creating trouble and interference by indulging in violence with a result that the Executive Authorities of Varanasi acting under sec. 144 Cr. P.C.. but in abuse of the power thereunder started placing undue restrictions on the members of the Shia community in the performance of their religious functions and ceremonies. Thus during the period 1960-66 the Executive power under sec. 144 Cr. P.C. came to be used each year to curtail the rights of the Shias to perform their religious practices and functions at the Baradari, other structures and the appurtenant plots on the occasion of the Barawafat;

sometimes restraints were also placed on the Sunnis. During the years 1967 to 1969 similar orders depriving the Shias of their legitimate rights on the occasion of MOHARRAM, Chehulam, Pachesa and Barawafats u./sec. 144 were issued by the District authorities. In subsequent years also similar orders were passed sometimes placing restrictions on one community and sometimes on the other, sometimes permitting certain observances on terms and conditions during the stated hours. More often than not under the pretext of imminent danger to peace and tranquility both the communities were completely prohibited from carrying out their religious functions and ceremonies under such orders but since members of the Sunni community had very little to lose in relation to the plots and structures in question it was the Shia community that suffered most. According to the Petitioners the aggrieved party-and mostly Shias were aggrieved-was required to approach 1092 the superior Courts by way of appeal or revision but usually before the matter could be decided on merits the impugned orders exhausted themselves by influx of time and the remedy by way of appeal or revision was rendered infructuous and the controversy remained undecided. However, when in the year 1973 on the occasion of Barawafat the City Magistrate, Varanasi by his order dated 12th April, 1973 prohibited the Shias from performing Barawafat on the Baradari and its adjoining plots and Sunnis were illegally permitted to observe Barawafat on Plot No. 602/1133 by reciting Qurankhani, Milad and Fathiha on 16th April, 1963 from 9 A.M. to 12 Noon Gulam Abbas and other Shia Muslims filed a Writ Petition No. 2397 of 1973 in the Allahabad High Court for quashing the order of the City Magistrate and for prohibiting the City Magistrate and local authorities from passing or promulgating any order depriving the Shia of peaceful use and enjoyment of the Baradari and the adjoining plots appurtenant to it and also prohibiting them from permitting the Sunnis to make use of the Baradari and its adjoining plots. This Writ Petition and the connected criminal cases (being Criminal Revision and a Criminal Reference against similar earlier orders u./sec. 144 Cr.P.C.) were heard and disposed of by the High Court by a common judgment delivered on August 8, 1975. Notwithstanding the fact that the various impugned orders had exhausted themselves by efflux of time the High Court felt that where a situation arose year after year making it necessary to take action u./sec. 144 Cr.P.C. it would be proper exercise of its discretion to interfere with the impugned order, if found to be illegal or improper, so that the Magistrate may not be encouraged to use his powers in the same manner again when the similar situation arose and that if a repetition of successive orders under sec. 144 resulted in a permanent interference with private legal rights it had to be deprecated and the High Court went on to give guide-lines to the Magistrates in the exercise of their discretionary power under sec. 144 by observing that though the section does not empower a Magistrate to decide a dispute of a civil nature between the private individuals, he must, before passing his order, take into consideration the nature of the claims set- up by the rival parties in order to judge whether or not it was possible to afford protection to those who seek only the lawful exercise of the legal and natural rights, that the authority of a Magistrate under this section should ordinarily be exercised in defence of legal rights and lawful performance of duties rather than in suppressing them and that this power is not to be used in a manner that would either give material advantage to one 1093 party to the dispute over the other or interdict the doing of an act by a party in the exercise of its right or power declared or sanctioned under the decree of a competent Court. On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Court's decision in earlier litigation and quashed the City Magistrate's order dated 12-4-1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in question in Mohalla Doshipura and also passed appropriate orders in the connected criminal cases. Against this common judgment rendered by the High Court on August 8, 1975, Civil Appeal No. 941 of 1976 and Crl. As. Nos. 432 to 436 of 1976 were preferred by Mohammad Ibrahim, a Sunni Muslim, all of which were disposed of by this Court by a Common judgment dated 6-12-1976 and this Court held that the High Court should not have pronounced any view on the impugned orders under sec.144 when those orders had ceased to be operative and that the High Court should not have given findings on rights, title and property depending on disputed questions of facts in a writ petition the judgment and findings of the High Court were set aside and parties were relegated to have their rights agitated or settled in a civil suit. Feeling aggrieved by the said judgment, Gulam Abbas and others filed a Review Petition No.

36 of 1977 in Civil Appeal No.941 of 1976 which was dismissed by this Court on 16th December, 1977 after making some observations: "Questions of title cannot be decided here (under sec. 144) but previous judgment on them may have a bearing on the question whether and if so, what order could be passed under sec. 144 Cr.P.C.......It was asserted on behalf of the Petitioners (Gulam Abbas and others) that in a representative suit between Shia and Sunni sects of Muslims question of title to properties or places to which the Magistrates' orders under sec. 144 Cr P.C. related has already been decided. If that be so, we have no doubt that the Magistrate will respect that decision in making an order under sec. 144 Cr. P.C. in the future." According to the Petitioners even after the aforesaid decision of this Court the city Magistrate, Varanasi, who had passed an order on 15-12-1977 under sec. 144 directing both the communities of Mohalla Doshipura to follow the terms and conditions laid down in this said order, on the representation being made by the Shias on 17-12-1977 bringing to his notice this Court's order dated 16-12-1977 in the Review Petition modified his earlier order on 19-12- 1977 1094 permitting holding of Majlis only at the house of Shamsher Ali but in respect of other properties postponed the passing of his order till 21-1-1978 but on that day he merely passed an order stating that his initial prohibitory order dated 15th December, 1977 as modified on 19th December, 1977 has exhausted itself as Moharram had passed off and further observed that while passing orders on the occasion of Moharram, Chehalum and Pachesa etc. in the coming years due regard will be given to the judgment of this Court dated 16- 12-1977 in Review Petition along with the decisions rendered in earlier civil litigation in representative character between the parties including the Allahabad High Court's decision in second Appeal No. 1726 of 1935. But one week later the same City Magistrate passed another order under sec. 144 Cr. P. C. on 28th January, 1978 on the occasion of Chehalum and Pachesa to be observed on the Baradari and the adjoining plots which was quite contrary to his earlier order dated 21-1-1978 and in utter disregard of the judgment of this Court in Review Petition No. 36 of 1977 and all other earlier judicial pronouncements in favour of the Shias; in fact by that order the City Magistrate completely prohibited every person from holding any Majlis either on the Baradari or on any portion of the adjoining plots in Mohalla Doshipura. This order dated 28-1-1978 was challenged by way of revision in the High Court but the Revisional application was dismissed on 13-2-1978 on the ground that the impugned order had ceased to be operative by then and Revision had become infructuous. Subsequent to this on several occasions requests were made by Shias of Mohalla Doshipura seeking permission for doing ceremonies and taking out Tazia Procession but on every occasion the City Magistrate refused permission. In the circumstances a Writ Petition No. 3906 of 1978 was filed by Gulam Abbas and other Shia Muslims in the Allahabad High Court praying for mandamus against the State of U. P. and its Magisterial officers, Varanasi, directing them to grant permission for performing some ceremonies and taking out Tazias but the same was dismissed by the High Court in limini on 22.9.1978 principally relying on the earlier judgment dated 6.12.1976 of this Court in Civil Appeal No. 941 of 1976; Special Leave Petition No. 6226 of 1978 against the same was filed by Gulam Abbas and others but it was withdrawn on 4-12-1978 as they were advised to file the present Writ Petition. During the hearing the Petitioners have amended their Petition by challenging the latest order passed by the City Magistrate, Varanasi on 24th November, 1979 under sec. 144 Cr. P. C.

prohibiting both Shia and Sunni communities from holding their Majlises and imposing other 1095 restrictions (the restriction on Recitation of Tabarra by Shias is not challenged) on the occasion of celebration of Moharram Festival at the Baradari and the adjoining plots in question in Mohalla Doshipura. The Petitioners have pointed out that Shias do not utter Tabarra (a ritual regarded as a filthy abuse of the elected Imams hurting the feelings of Sunnis) but have fairly conceded the justness of the prohibition against uttering Tabarra. Petitioners have contended that the exercise of the power under sec. 144 Cr. P. C. has invariably been perverse and in utter disregard of the lawful exercise of their legal rights to perform their religious ceremonies and functions and instead of being in aid of such lawful exercise it is in favour of those who unlawfully and illegally interfere with such lawful exercise under the facile ground of apprehension of imminent danger to peace and tranquility of the locality.

By their counter affidavit filed in reply Respondents 5 and 6 on behalf of themselves and the Sunni community have resisted the reliefs claimed by the Petitioners in the Writ Petition principally on three or four grounds. On merits they have denied that there is clear on decisive material on record either in the form of judicial pronouncements or the registration of the Shia Wakfs of Mohalla Doshipura under the U. P. Muslim Wakfs Act, 1936 concluding in favour of Shias' title to the concerned plots or structures thereon or their entitlement to the performance of the religious rites, practices, observances and functions on the property in question as claimed; it is contended that a clear and sharp distinction must be made between title and ownership of the concerned plots of land, title and ownership of the structures on those plots and the rights exercisable by the Shia community over the concerned plots and structures thereon and there are considerable gaps and inadequacies in the documents and the material before the Court in that behalf which can only be filled in by trial and by recording evidence and in the absence of adequate material no declaration as to the title to the plots or the structures or even as to the rights in or over the plots and structures thereon could be granted in favour of the Shia community. In other words the contention is that a Writ Petition under Article 32 for such a relief of declaration is not maintainable in as much as the basic purpose of a Petition under Article 32 is to enforce existing or established fundamental rights and not to adjudicate and seek a declaration of such rights or entitlement thereto. In this behalf respondents 5 and 6 have doubted and disputed the effect and binding nature of the earlier court decisions, particularly of the judgments rendered by the Munsif's Court, Vanarasi in Suit No. 232 of 1934 1096 (Fathey Ullah & Ors. v. Nazir Hussain and Ors.) and by the Appellate Courts in appeals therefrom, on the entire Sunni community and as regards registration of the Shia Wakfs they have contended that the position arising out of the U. P.

Muslim Wakfs Act, 1936 and the U. P. Muslim Wakfs Act, 1960 in the context of the Sunni Wakfs in regard to the properties in dispute under the latter Act requires serious consideration. As regards reliefs sought against the orders passed by a City Magistrate or Sub-Divisional Magistrate under sec. 144 Cr. P. C. it is contended that no mandamus under Art. 32 is competent in as much as these are judicial or quasi-judicial orders passed by a Court under sec. 144 Cr. P. C. and no fundamental right can be said to be infringed by any judicial or quasi judicial orders;

alternatively are administrative even if it were assumed that these orders are administrative or executive orders passed by Executive Magistrates these cannot be challenged unless the Magistrate has exceeded his powers or acted in disregard to the provisions of the law or perversely and in the instant case the impugned orders subsequent to this Court's decision dated 16-12-1977 in Review Petition No. 36 of 1977 have been passed by keeping in mind the observations or the guide lines contained in that decision and in light of the emergent situation then obtaining in the locality. In the circumstances, the Petitioners are not entitled to any of the reliefs sought by them in the Writ Petition: Lastly, it has been contended that the present Writ Petition is barred by res-judicata or principles analogous to res- judicata by reason of this Court's decisions in (a) Civil Appeal No. 941 of 1976, (b) Review Petition No. 36 of 1977 and (c) Order permitting withdrawal of SLP No. 6226 of 1978 on 4.12.1978. In any case the view taken by a Bench of three judges of this Court in their judgment dt. 6-12-1976 and reiterated in the order dt. 16-12-1977 on the-Review Petition, however wrong it may appear to be, should not be disturbed.

The two Boards, Shia Central Wakfs Board and Sunni Central Wakfs Boards impleaded as parties to the Writ Petition under this Court's Order dated 28th March, 1980 have supported the respective cases of each community represented by the Petitioners on the one hand and respondents 5 and 6 on the other respectively and each one has placed such additional material before the court as was in its possession touching the registration of Shia Wakfs and Sunni Wakfs under the two enactments U.P. Muslim Wakfs Act, 1936 and U.P. Muslim Wakfs Act, 1960.

1097 It cannot be disputed that ordinarily adjudication of questions of title or rights and granting declaratory relief consequent upon such adjudication are not undertaken in a Writ Petition under Art. 32 of the Constitution and such a petition is usually entertained by this Court for enforcement of existing or established title or rights or infringement or encroachment thereof complained by granting appropriate reliefs in that behalf. But as stated earlier, counsel for the Petitioners contended before us and in our view rightly that all that the Shia community is seeking by this Petition is enforcement of their customary rights to perform their religious rites, practices, observances and functions on the concerned nine plots and structures thereon which have already been adjudicated, determined and declared in their favour by decisions of competent Civil Courts in the earlier litigations and that the declaration sought in the prayer clause is really incidental. It is true that title and ownership of the plots of land in question is distinct from title and ownership of structures standing thereon and both these are again distinct from the customary rights claimed by the members of the Shia community to perform their religious ceremonies and functions on the plots and the structures thereon. However, it is clear that even if the Petitioners and through them the Shia community are unable to prove their existing or established title either to the concerned plots or to the structures standing thereon but they are able to prove that they have existing or established customary rights to perform their religious ceremonies and functions on the plots and the structures thereon simultaneously complaining of illegal deprivation or encroachment by executive officers at the behest of respondents 5 and 6 or the Sunni community the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them. This is not to suggest that the petitioners or the Shia community have failed to prove that they have existing or established title and ownership over the plots and/or over the structures thereon-an aspect which will have to be considered on merits though secondarily, the primary question being whether they have succeeded in proving their subsisting entitlement to the customary rights claimed by them. In this behalf, as stated earlier, they are basing their customary rights on two foundations, namely, decisions of competent Civil Courts adjudicating these rights in their favour and registration of Shia Wakfs concerning the plots and structures for performance of these practices and functions under secs. 5 and 1098 38 of the U.P. Muslim Wakfs Act, 1936 and we proceed to examine critically these two foundational basis.

Dealing first with Civil Court's decisions in earlier litigations it would be necessary to refer to two or three earlier litigations and to state accurately the result in each which will have a bearing on the rival contentions of the parties hereto.

In Suit No. 849 of 1878 filed by Sheikh Sahib and Ors.

(Shia Muslims) against Sheikh Rahmatu and Ors. (Sunni Muslims) in the Munsif's Court at Benaras the dispute pertained to the mosque in Plot No. 246 and the Plaintiffs' rights to hold their Majlises on 9th and 12th of MOHARRAM inside the mosque and to keep and repair their Tazia in that mosque, and the learned Munsif Shri Pramode Charan Banerji by his judgment dated 29th March, 1879 held : (a) that the disputed mosque was built by general subscription, that it belonged to members of both the sects and that every Mohammedan had a right to worship in it; (b) that the plaintiffs failed to establish their claims about the holding of the Majlises and the cooking and distribution of food in the mosque but the probabilities were that the Majlises of 9th and 12th MOHARRAM were held by them on or close to the platform on the surrounding ground and (c) that the plaintiffs had acquired by a long user a right to keep their Tazia in the Hujra (apartment) of the mosque and to repair the same in the tiled Saeban (Varandah) of the mosque and the defendants were restrained from interfering with plaintiff's rights in respect of the above matter; the rest of the plaintiffs' claim was dismissed. Civil Appeal No. 73 of 1879 was preferred by the plaintiffs against that part of the decision which went against them and cross-objections were filed by the defendants against declaratory relief and injunction passed against them but both the appeal as well as the cross-objections were dismissed by Shri Ram Kali Choudhary, Subordinate Judge, Banaras on 16th December, 1879 and the trial court's decree was confirmed. In other words this litigation declared the mosque in plot No. 246 to be a public mosque at which every Mohammedan became entitled to worship and further declared the plaintiffs right to keep their Tazia in the apartment attached to the mosque and repair it in the Varandah thereof and to hold their Majlises on 9th and 12 of MOHARRAM on or near the platform on the surrounding ground of the mosque as early as on 29th March, 1879.

1099 It appears that the Sunni Muslims of Mohalla Doshipura, Varanasi repeatedly tried to put forward their false claims and rights over some of the Plots in question and in particular attempted to encroach upon plot No. 602/1133, which had been recorded as Banjar Qadim (barren land) in the revenue records, by falsely alleging that it was a grave- yard where they had buried their dead. The then Maharaja of Banaras (plaintiff No. 1) filed Suit No. 424 of 1931 in the Court of Additional Munsif, Banaras against Shamshuddin and Ors. representing all Muslims residing in Banaras under O. 1, R. 8 C.P.C. (though the nominee defendants were Sunni Muslims) praying for a declaration of his rights as owner and Zamindar and for a permanent injunction restraining the defendants from interfering with his rights and also for removal of fictitious graves if any on that plot. It may be stated that Shias of Varanasi had never claimed the plot to be a grave yard, though they were claiming other rights to perform their religious ceremoni