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JUDGMENT N.K. Jain, J.
1. These are defendants' appeals against the order dt. 14.11.91 passed by the learned District Judge, Udaipur whereby he has allowed the plaintiffs' application dt. 20.5.85 for grant of temporary injunction under Order 39 Rule 1 and 2 read with 1 51 CPC and Order 41 Rule 1 CPC for appointment of receiver in a suit for declaration, possession and injunction.
2. The relevant history which is necessary to understand the controversy is that the parties belong to Dawoodi Bohra community of 'Shia' sect. The appellants are progressive Jamat. The parties to the suit are "Shia' Muslims in contrast to 'Shnni' Muslims. 'Shia' are those Muslims who after the death of prophet Muhammed Saheb attached themselves with, Ali, the son-in-law of the prophet, considering him to be the successor of the Prophet Muhammed Saheb both in religious and spiritual matters, whereas 'Sunni' Muslim believes that Abu Baker, the father-in-law of the Prophet is the successor of the prophet Muhammed Saheb. Further 'Shia' Muslims are divided into two sects known as "Ismilia' and 'Ishna Asharia'. Dawoodi Bohras belongs to 'Ismilia'. These sects are governed by their own law. The parties to the suit are Dawoodi Bohras and according to the plaintiff their spritual and religious leader is the present plaintiff His Holiness Dr. Syedna Mohamad Barharuddin Saheb, who is 52nd Dai-ul-Mutlaq of the Dawoodi Bohra Community. This community is from 'Shia' sect holding common belief that the prophet Mohammed Saheb is the only one and only God. He (Prophet) reveals Holi book 'Quran' and Ali the son-in-law succeeded him. In the line of Imam each of whom in turn was appointed by his immediate predecessor. Dawoodi Bohra Ismilia sect of this and Dai is known as Dai-ul-Mutiaq and Dai is governed by God. Dai though appointed and nominated by Imam have all aware of Imam in religious and spritual sense. All the members of Dawoodi Bohras have to administer on oath of allegiance to Dai-ul-Mutlaq. Dai-ul-Mutlaq is not only a spritual or religious head in name but in real sense. He is the sole trustee of the property of the Dawoodi Bohra having sole right of control and management over community and its property. Dai-ul-Mutleq is also known as Mullaji.
3. The plaintiffs filed a suit on 11/12.2.85, in the court of learned District Judge, Udaipur for declaration, possession and permanent injunction with the allegation that the following four suit disputed mosques along with other properties at Udaipur; (1) Moiyatpura Mosque, Bohrawadi, Udaipur, (ii) Vazirpura Mosque, Bohrawadi, Udaipur (iii) Rasoolpura Mosque, Gulabwadi, Udaipur and (iv) Khanpura, Chhoti Bohrawadi, Udaipur are the properties of the community. The plaintiff also moved application before the City Magistrate for repairs. They also filed application for temporary injunction and for appointment of receiver alongwith the suit. An exparte order was passed against the appellant to the effect that the appellant should not carry out repairs and status quo be maintained. This order was also communicated to the District Magistrate and Superintendent of Police of the area. The plaintiff's case is that in Udaipur Dai-ul-Mutlaq appointed Anil from time to time who has the authority from Dai-ul-Mutlaq to lead 'Imant' and "Jamat Namaz' and also gave permission to lead 'Immat' prayers and other religious functions, and ceremonies in the mosque and to manage and alminister the same for and on behalf of the Dai-ul-Mutlaq or in other words it can be said that the permission or authority or "Raza' from Dai teprary or special prayers and ceremony, etc. are to be done by such nominated person. The four mosques in dispute are managed and maintained by the representative or the nominated persons of Dai. The plaintiffs' case further is that in the year 1 973 a section of Dawoodi Bohras including the defendants rebelled against the spritual and religious authority of Dai-ul- Mutlaq and they have formed Bohra Youth Association and later on they formed their separate organisation Dawoodi Bohra Zamat, Udaipur. Bohra Youth Mambers had entered in the mosques forcibly in the year 1 973 and they are managing and administering the mosques and other religious prayers by their Pesh Imam and do not allow the plaintiffs or their nominated person to do prayers or other religious functions under their Amil or Pesh Imam and the followers of the plaintiff Dawoodi Bohras are doing their prayers and other religious functions at a separate place and thereby hurt the spritual feelings of the Dawoodi Bohras of which the plaintiff His Holiness Dr. Syedna Saheb is the religious and spritual leader and the sole trustee of all property inlcuding the disputed four mosques. It is also stated that in or about 1982, the said Saboonwala, Rasanwala intimated their Amil, that the private place would not longer be made available.
4. The appellants denied the averments and alleged that there is no need of 'Raza' and claimed that all the four mosques belong to Bohra Youth and filed reply in three sects dt. 1.11.86 [for defendants No. 1 to 6, 9 to 20 & 24 to 30), dt. 2.1.85 (defendants No. 21, 22 and 23) and dt. 15.1.86 (defendant No. 7) and also filed documents containing list of documents on 31.3.86 and 4.4.86. A rejoinder was also filed by the plaintiff on 24.10.86. Defendants have also filed reply to the application dt. 20.5.85 on 31.8.85. It was alleged that after coming into force of the Waqf Act, 1954, the Waqf Board is the only institution for the management of the property including the mosques and Dr. Syedna Saheb has no right to manage them and the plaintiffs are not the Mutwalli under the said Act and the same may be dismissed. It was also alleged of the mosques are under the control and management of the defendants and all prayers and other religious functions as well as ceremonies are being performed by the Pesh Imam appointed by Bohra Zamat and the court on that basis maintained status quo as it existed on the date of the suit. It was further-submitted that there is no prima facie case and balance of convenience lies in favour of the defendants and no irreparable loss has been caused to the plaintiffs. It was also submitted that the relief prayed for is wholly misconceived and in any way not permissible.
5. It is important to note that in the year 1982, plaintiff in a representative capacity .filed a suit (No. 69/82) against the defendants in their representative capacity regarding these mosques and prayed for injunction. An application was filed for temporary injunction (No. 53/82) along with the suit, the learned District Judge, Udaipur after hearing both the parties dismissed the application for temporary injunction on 31.10.88. An appeal was preferred to this Court which was registered as Civil Misc. Appeal No. 5/84 and came to be decided on 22.5.84 reported in 1984 RLR-888 Gulam Abas v. Iqbal and this appeal on consent was partly allowed.
It is also pertinent to note that after the judgment of this Court referred above, a criminal proceedings Under Section 145 Cr.PC was initiated between the parties and in that criminal proceedings in case No. 365/84 the City Magistrate appointed 'Dy. S.P.' as receiver Under Section 145 Cr.PC for 'Moiyatpura mosque'. The receiver continued upto date of impugned order dt. 14.11.91 passed by the learned Distt. Judge.
6. Both the parties in support of their respective contentions referred number of documents, affidavits relevant text books, written submissions and case-law. The learned District Judge after hearing the arguments accepted the application and granted temporary injunction and also appointed receiver on 14.11.91, however, he has himself stayed the operation of impugned order and directed to maintain status quo till 30.11.91. Aggrieved by the aforesaid order dt. 14.11.91 of the learned court below, the defendants-appellant filed two separate appeals; one against injunction order and appointment of receiver and the other against the order of repair work. These appeals have been filed in this Court on 23.11.91 and as agreed by both the parties, both the miscellaneous appeals arising out of the same order are finally heard at the admission stage and decided this common judgment.
7. Mr. L.R. Mehta, learned Counsel for the appellants has contended that the defendants have specifically denied the plaintiffs' case. He has further submitted that under the Shia Muslim Law, there is no question of "Raza' from Dai. He has submitted that though Dai is sole trustee but only in ideal sense. He has further submitted that the dispute is an old one as is apparent from the documents annexed with the written statement but the learned Gist. Judge without considering them passed order and erred in granting mandatory injunction and appointing receiver which is based on the assumption that the power of general management and control of all mosques of Dawoodi Bohra community vests in the plaintiff on the basis of earlier judgment, more so when there is no prima facie case and the balance of convenience also does not lie in their favour as admittedly plaintiffs are not in possession, therefore, the question of irreparable loss also does not arise. He has further contended that after coming into force of Waqf Act, 1954 all mosque property is governed by the Waqf Board and Mutwalli appointed by the Waqf Board are legal and there is no need for obtaining consent of Dai-ul-Mutlaq or his nominee and the Dai is not the owner of the Waqf property. He has placed reliance on Advocate General of Bombay v. Yusuf Ali Ebrahim and Ors. AIR 1921 Bombay 338, Akbarally A. Admaji Peerbhoy and Ors. v. Mahomedally Admaji Peerbhoy and Ors. AIR 1932 Bombay 356 and Durgah Committee v. Husain Ali .
8. Mr. Y.H. Muchhala learned Counsel for the plaintiff- respondents has supported the order of the learned Dist. Judge and has submitted that law which is to be applied is personal law and each sect is to be governed by its own personal law. The Dawoodi Bohra community is to be governed by its own personal law. He has also contended that Mullaji is not only a spritual leader of the Bohra community but also in real sense, he is the real controller of all the property including the disputed mosques and if any prayer is done by or under any person who is not authorised by Dai or his representative that prayer is no prayer in the eye of Shia law. Mr. Muchhala has submitted that Dr. Syedna Saheb is the sole trustee and general supervision vests in him. He has also submitted that on the basis of affidavits and Anjuman's constitution which are on record, entire power has been given to Dal-ul-Mutlaq these documents clearly show that control and general supervision vests in him and as per the practice and usage, religious tenets without 'Raza' nothing can be done in the mosque. He has contended that the appellant has admitted some facts in the earlier suit as such now he cannot change his stand. Mr. Muchhala has further contended that under the Waqf Act, 1954, a Mutwalli can file a suit. He has placed reliance on Deedar Hossein v. Ranjee Zuhoor-OOH, Nissa 2 MIA 441, Perumal Konar v. Marathanayagan Nadar AIR 1936 Madras 433, Advocate General of Bombay v. Yusuf Ali Ebrahim and Ors. AIR 1921 Bombay 338, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay , M.M. Shahul Hameed v. Kazi Mohammed Hussain Sahib (AR 1941 Madras 42), Wajad Ali Shah v. Sm. Bodan...Bibi (AIR (34) Calcutta 282), Syed Khersha Sajanshah v. The Bhuj Municipality (AIR 1986 Guji 2) and text book Mousan-a-Bahar, and Muntaz-ul-Akhbar.
9. I have considered the rival contentions of the parties and gone through the record and material placed before me along with the case-law.
10. First of all I shall deal with the case of Advocate General of Bombay v. Yusuf Ali AIR 1921 Bombay 338 this case has been relied on to some extent by both the parties. In brief the facts of the case are that there was a mosque and tomb of Seth Chandabhoy. The case of the plaintiff was that mosque, tomb and other properties of Bohras situated at Bohra Masjid Street, Bombay which was purchased out of the collection of Gulla and offer box by Mullaji are the properties of trust and Mullaji is the only trustee. The defendants admitted that the suit properties were not the personal property of Mullaji who was defendant No. 3 in the suit. They further stated that Mullaji holds the suit property by virtue of this office as Dai and hand of his community and on his death these properties would pass to his successor in office and not to his heirs. It was further contended that there is no charitable trust and Mullaji is not accountable to anybody except the Imam in seclusion, According to them Mullaji is the representative of God on earth according to religious tenets Mullaji is the master of the mind-property, body and soil of each of each of his followers. In this case the learned Judge has traced the history of Bohra community with reference to certain temporal affairs of religious books. It was stated in this case that the Mullaji temporal affairs of his community should entire subject to British courts of justice and that he would not be entitled to dictate or otherwise interfere with and if any member resists him, he would ensure his power in the ordinary course of law as Mullaji's certain powers have been given to him but he disclaimed those powers in the witness box. The learned Judge has observed that I have now said enough to show that Mullaji's religious position is so high that it only causes confusion and perhaps injury to over state it." It is incorrect to say that Mullaji is in effect God or for all practical purposes God and it is a sacrilege to bring the present suit. I think it is opposed to the leading tenets of the Muhammed an faith which is known to educated people all over the world i.e. "there is but one Gud and Muhammed is the Prophet." With regard to dealing with the Mullaji's claim that he be the owner and master of all property possessed by any Dawoodi Bohra and to be also the master of their minds, bodies and souls, it was negatived as they could not justify their claim. As per their religious books viz. (1) Quran, (2) the Hadis or saying and doings of the Holy Prophet Muhammed and (3) the Nehjul Balagh or saying or doings of Ali. It was observed that in none of these is the claim which the Mullaji now makes specifically put forward as the counsel of the Mullaji admitted that he had no religions authority to show in precise words that the Mullaji could take away trust property under a deed, will or scheme, as by such powers as stated above. The learned Judge has further observed' "I have been through all the other religious writings which were cited, but it is impracticable to do this in a judgment. I have given them my best consideration but in the result, I am not satisfied that they fairly they fairly substantiate the claims of the Mullaji to ownership of the minds and properties of the followers. Further the priests themselves would seem to draw a distinction between ownership in a worldly sense and ownership in a religious sense. The learned Judge also observed that "I should mention as extremely important fact viz. that the defendants cannot produce a single instance of these extreme claims having been exercised by any Mullaji Saheb prior to the present suit." The learned Judge further observed that I think that this suit ought to be decided in accordance with Shia Mohammden Law in so far as the same is applicable to this community and is not expressly or impliedly negatived by the general law of the land. The learned Judge of the Bombay High Court while conclusing first part of the judgment said that "I came to the conclusion that the sole management and general control of mosque is vested in Mullaji in right of his office as Dai. He may also have the right to prohibit his followers from attending any particular mosque, but this I need not decide." The learned Judge has observed that the theory of the Mullaji Saheb's universal ownership, therefore, seems to be unfounded in fact and bad in law." It was also observed that "the court will not decide mere questions of religious rites or ceremonies nor will it pronounce on any religious doctrine unless it is necessary to do so in order to determine rights to property." It is "the policy of the State to protect all religion, but to interfere with none."
In Hasan Ali v. Mansoorali AIR 1948 PC 56 the questions before the Court were; (1) if the respondent No: 2 was Dai-ul-Mutlaq, (2) whether the respondent No. 2 had power to excommunicate and (3) whether such power was absolute and arbitrary. It was held that the respondent No. 2 was the Dal-ul-Multaq and that he had power to excommunicate. It was, however, held that the power was neither absolute nor could it be exercised arbitrarily.
In Aksarally A. Adamji Peerbhoy and Ors. v. Mahomedally Adamji Peerbhoy and Ors. AIR 1932 Bombay 350 the Mullaji expressed his unwillingness to under-take any liability upon himself and he did not wish to be appointed a trustee, which necessarily implied accountability (to beneficiaries and court) and denial of exercise of any plenary powers over the mosques.
In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853, the Hon'ble Supreme Court has concerned only with the validity of Bombay Act No. 42 of 1949 by which the power of excommunication was totally taken away from the Dal-ul-Mutleq and the act of excommunication was made a criminal offence. While dealing with Articles 25 and 26, their lordships of the Supreme Court have observed that the protection of these articles is not limited to matters of doctrine of belief, they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances are integral parts of religion. It has also been observed that an essential part of a religion or religions practice has to be decided by the courts with reference to the doctrine of a particular religion and include practice which are regarded by the community as a part of its religion.
11. Though both the learned Counsel argued at great length and have taken me from relevant record and I have taken note of the affidavits, documents placed on record but only referring then to the limited extent as I am considering these appeals against the grant of temporary injunction and appointment of receiver only and it would not be proper to express any opinion on merits lest it would affect the final adjudication.
12. As regards the point whether for offering prayer and performing any religious functions 'Raza' of Dal-ul-Mutlaq is necessary or not both the learned Counsel dealt at length. The contention of Mr. Mehta is that according to the highest religious book there is no word like 'Raza'. Mr. Mehta has submitted that no religious authorities like Quran, Hadis and Nehjul Balagh indicates requirement of 'Raja' and the only requirement is that' a person who is learned, pious and noblest amongst the congregation alone is entitled to lead "Jamat Prayer'. Mosques have been founded on righteousness and no-one but a righteous person can lead prayer in it. It has been stated in Quran in the 7th Ayat original Arbi and translated into Hindi."
,s uch ! geus gj ,d dke ds fy, 'kjhvr ds Qjeku ukfty fd;s gS ¼mrkjs gS ½ mUgh ds vuqlkj pfy;s rFkk ukokfdQ yksxks dh LosPNk ls mRiUu fjoktks ds vqulkj u pys A Mr. Muchhala has submitted that the Hindi version cannot be considered to be true version only on the basis of person who filed affidavit that he has some knowledge of 'Arbi' language and unless it is proved it can't be presumed to be a true version. Mr. Muchhala has relied on Jaffer's episode, Bhisti's episode and Ghadir-ul-Khum's episode described in various text books. Mr. Mehta has submitted that they cannot be a source of doctrine like doctrine of "Raza' for the said book as it does not have the authority of "Da-imul-lslam' by Syedna Ali Qazi Homan and the aforementioned three books enjoy amongst the Dawoodi Bohras. He has further submitted that in any case the episode cannot be derived from the context in which they occurred and they will have to be read alongwith the warning appended by the author himself. He has also submitted that the most important episode is Bhisti's episode in which Bhisti' was asked by the "Sydna Idris' for "Imamat' only for the purpose of demonstrating love of the Hindu people and for teaching a lesson to the people of Yaman. Mr. Muchhala has also placed reliance on the affidavits of the respective "Amils' viz. Qasim Bhai dt. 3.9.86, Abdeali Bhaisaheb dt. 8.10.86, Jafar dt. 20.6.88 and the affidavits of some other persons 23.10.86 viz., Ibrahim, Haji Mulla Qamaruddin. Saifuddin, Yakub Ali, Hasan Ali and Mulla Gulam Ali to show the doctrine of 'Raza'. Mr. Mehta has contended that these affidavits are streo type and without proving them particularly when the defendants have denied their contents doctrine of 'Raza' cannot be established on such affidavits at this stage.
In AIR 1921 Bombay 338 the Advocate General's case there was no such question that " Raza', permission or authority of Dai is necessary to offer the prayers and the Pesh Imam or any person appointed by Dai Saheb can only lead the prayer. The Bombay High Court did not advert itself to that question since it was not raised. Similarly cases Hasan Ali v. Mansoorali AIR 1948 PC 66 and Sardar Syedna Taher Saifuddin Saheb v. State of Bombay have also no bearing on the facts of the present case as these cases were concerned with Dai's power of excommunication and with the management of mosques and not with the alleged doctrine of ' Raza'. Akbaraly A. Admaji Peerbhoy's case reported in AIR 1932 Bombay 356 deals with the question that Dai by virtue of his office claimed plenary powers, unaccountability and universal ownership while the courts conceeded him only trusteeship in law and that too in theoritical or ideal sense. It was observed that the books speak of an open space nor it is necessary for the purpose of consecrating a place or building as a masjid that there should be an to amil or any other religious officer appointed. It is better if there are such offices an ordained Imam or amil to load the prayers, a muazzin to call to prayers, a khatib to pronounce the khutba, a Khatim to sweep the mosque and keep it clear. It was also observed that the appointment of any specific person for the performance of these or similar duties is not necessary. However, it is true that in the earlier suit No. 69/82 in which the Shabab group claimed doctrine of 'Raza' and only the sanction of customs and usage constitute religious practice. The learned Judge of this Court in misc. appeal held (para 39) it to be a civil right and law about mosques in Islam is uniform of the alleged customs on the authority of Hadis and observed that in general special congregation cannot be allowed to be held by descendants.
A bare perusal of above authorities reval that 'Raza' has not been discussed in them and moreover from the above episode also presumption cannot be drawn in favour of the respondent and the doctrine of ' Raza' cannot be inferred, moreover, the affidavit produced by the plaintiff are not considered and also not proved. I am conscious that a Single Judge is bound by the earlier decision of Single Judge and if he differ he should refer the matter to the Division Bench but since the interim order passed by the court are not procedent and moreso the learned Judge has himself observed that "Whatever view, opinions and findings have been recorded herein above, would not in any way be considered binding on the trial court while deciding the suit on merits. The opinions, which have been expressed herein above are opinions, while considering the application for the grant of temporary injunction. "Under the these circumstances, in my opinion, it cannot be said prima facie that the question of 'Raza' was decided.
13. Mr. Mehta has next contended that without there being any proof of customs and usage of a particular sect neither any injunction can be granted nor receiver can be appointed. He has submitted that in the written statement, the appellant has clearly stated that the management before 1973 was with the Panch Bohras and not with the plaintiffs or with the Amil appointed by the plaintiff, and the learned Dist. Judge has errod in observing that prior to 1973 the plaintiffs were managing the mosques as Bohra Youth was not in existence. Mr. Mehta has submitted that in the written statement and list of documents along with the documents were sufficient to demolish the claim of the plaintiff in deciding the injunction application but the learned Dist. Judge has not considered the same. He has submitted that the learned Dist. Judge has misread the submission of the respondent as he has observed that it is not disputed that before 1973 the management was with the plaintiff. Mr. Mehta has placed reliance on Notification published in newspaper dt. 6.4.25 of the Mewar State. It reveals that there was a dispute regarding burial of dead bodies between Mullaji's person and non-believers of Mullaji and it was notified in that notification that deed bodies will be burried in this cemetory and even non-belivers of Mullaji and person of Mullaji have no right to prevent them. The appellant has also referred to another judgment of Udaipur court with regard to use of mosque dt 30.6.83. A perusal of this judgment shows that complaints were filed by Rajabali and Mullaji when religious days of Moharam were coming and it was stated that dispute may arise in the big mosque with regard to observation of religious function. After notice to both the parties, the court fixed timings for observances of religious functions and ordered that whosoever disobeys this order shall be liable to severe punishment. Copy of this order was sent to police for necessary action and also to Mullaji. Another judgment is of criminal court of Udaipur Mewar State (16 of Samvat Year 1949 corresponding to 7th Dec. 1892) with regard to with-holding key of the Bohra Zamat. The plaintiff filed a suit that Mullaji is the highest priest of the community according to religious law and owner of the Waqf property, Mullaji has excommunicated certain persons who were descendants by his order as they have committed breach of peace. The descendants refused to hand-over the keys of properties to Amil of Udaipur. Accordingly Amil of Udaipur deputed two persons but the descendants refused to hand-over the keys. The descendants submitted that the property is the property of the community and without consulting community key cannot be handed over and reply can only be filed after receipt of the complaint and other documents form the plaintiff as it is not a religious matter but a communal matter, keys have been entrusted with Panch Bohras, Amil is also entitled to give his opinions with others if it is proper it is excepted and otherwise it is rejected. The Panch Bohras have been appointed by the community and Mullaji had also recognised them as such. Thus, Mullaji cannot interfere in any matter except religious ones. It was stated that in the religious matter Mullaji's order will be carried out but communal matters are not done according to the customs of the country. Votting was effected and only 77 houses of Bohra community voted for the keys being kept with Mullaji while 118 houses voted for key to be kept with the present parties. Then an arbitrator was appointed. In the last, the keys were kept with the police and both the parties Were directed to pay the salary half and half to police to supervise the matter.
Mr. Muchhala has drawn my attention to the affidavits of Qasim, Abdealibhaisaheb, Jafar to show that they were Amils appointed or nominated by Dai-ul-Mutlaq were managing the mosques in the year 1962-66, Hajari Samvat 1390 and Hijari Samvat 1384 respectively. On the contrary Mr. Mehta has pointed out that the aforesaid affidavits mention that for some period they were Amil of the mosques but no incident has been quoted. As regards of affidavits of Qasim Bhai dt. 3.9.86 and Saifuddin Saheb dt. 23.10.86 produced by the plaintiff showing that they three were the joint account holder with late Mohd. Hussain of the UCO Bank. Mr. Mehta has pointed out that asper his own affidavit Saifuddin Sahab remained at Udaipur from 1962-66 and has not signed the cheque whereas the alleged cheque dt. 12.9.68 was issued from the cheque book obtained in 1968 and further from a joint account one person cannot issue the cheque. Mr. Mehta has also invited my attention to the documents which are mentioned in the List of Documents submitted along with the written statement;'' Rokad' (Cash), permission by the City Magistrate dt. 31.10.86 on the application of Rajabali, receipt of Waqf Board of the year 1967-68 to 1985 showing payment was made by the appellants, Mr. Muchhala has submitted that only on the basis of one receipt of Waqf Board, inference of regular payment cannot be drawn. Mr. Muchhala has also contended that the aforesaid documents cannot be looked into and in its support he has drawn my attention to some paragraphs of written statement and reply to earlier temporary injunction application filed in the earlier suit (68/82) and submited that the defendant party has not denied the fact that the plaintiff is the Dai-ul-Mutlaq and he appoints Amils. Sajid Jaipuri [defendant No. 3) in pamphlet admitted that Masjid were managed by there ' Anjuman' and also admitted that they do pray in Hoiyatpura since 30.5.84 and as alleged they are in possession for the last 8 years prior to the suit 69/82, now they cannot go against it and cannot say that these mosques are being in their possession and managed by them from last so many decades, whereas Mr. Mehta has denied the claim of the plaintiffs' and invited my attention to some paras of written statement mentioning detailed history and submitted that the disputed four mosques were not constructed by the Dr. Syedna Saheb, the plaintiff or their predecessors. He has submitted that Hoiyatpura Mosque was built in the year 1877, Vazirpura moseques was built to the year 1873 to 1886 and both these mosques were could constructed by the ancestors of one of the defendants and Rasoolpura Mosque was constructed and on the land donated by Haji Abdul in the year 1909 and the same was completed in the year 1912 and was being managed by Panch Bohra. Khanpura mosque was constructed in the year 1907 by the defendants. As stated above both the suits relate to the same disputed mosques but in earlier suit relief claimed is for the injuction only regarding appointment of Pesh Imam on ' Raza' whereas in this suit relief of possesssion, injunction and declaration has been sought, so there was no occasion for the defendant to take such pleas and file the documents in support of the claim of ownership and the plaintiff has claimed declaration over these mosques. Both these suits are pending trial and question whether these pleas are open to the defendant or not, cannot be seen at this stage nor the point was dealt by the learned Dist. Judge, and further whether as per the customs and usage Pesh Imam can be appointed by Mullaji only can only be decided after recording evidence and not at this stage. In view of this, from relying on aforesaid documents which are relevant for consideration, the defendant appellant cannot be estopped to argue and their consideration for prima facie case and the court has erred of the Highest court of mewer. The respondent has not addressed the court in this regard. It is true that mandatory injunction can be granted and no absolute proposition can be laid down for granting mandatory injunction or preventive, injunction as it depends on the circumstances of each case. It is also true that the appellate court should be reluctant in interfering in grant of injunction but it can interfere if the documents have not been considered. As discussed above, in the present case there are no special reasons on the basis of which the plaintiff can be held to be entitled to temporary injunction in a mandatory form and appointment of receiver on the disputed three mosques which clearly tentamounts in passing decree in plaintiff's favour without trial.
14. Mr. Mehta has next contended that the agreements dt. 25.8.70 and 28.4.1986 so arrived at the back of the appellants by the plaintiff and the Waqf Board are not valid agreements and are not permissible and they are not according to the principle enshrined in the Act. He has also submitted that the agreement says that the ownership of these mosques vest in the Dai Saheb is wrong as the ownership of mosque vests in God. He has further submitted that after coming into force of Waqf Act, 1954 a, survey of Waqf properties was conducted and the same was published in the Rajasthan Gazette Notification dated 27.4.1963. Waqf Board had published a list of mosques at Udaipur, Sunni and Shia have been shown separately. Four disputed mosques have been shown as Shia Waqf property and maintained by the Waqf Board of Rajasthan. Mutwalli have been shown in the register and the appellants have been shown as Mutwalli of these mosques in the register and not the plaintiff. Thus they have no right over these mosques. Mr. Muchhala has submitted that Mutwalli can file a suit. In this respect he has placed reliance on Syed Khersha v. The Bhuj Municipality and on the basis of this authority he emphasized that the plaintiff Dr. Syedna Saheb being a Amin in legal parlance he is also Mutwalli of these mosques. Mr. Muchhala has contended that there is agreement arrived at by the plaintiff and the Waqf Board which have not been challenged and the plaintiff Syedna Saheb is the Mutwalli of these moseques. He has submitted that after coming into operation of the Waqf Act general control and management do not vest in the Waqf Board and it is clear from the preamble and objects and reasons of the Act the Board has constituted only to supervise and not to take over the management of the mosques unless there is a case of mismanagement. Mr. Mehta in his rejoinder has not disputed the aforesaid authority and submitted that in that case Mutwalli filed a suit when the land of mosque was encroached by some persons. Mr. Mehta has contended that the plaintiff cannot take advantage of the aforesaid case as facts of that case are not applicable to the present case, that apart in that case Waqf Board was also a party. Mr. Muchhal has referred to some text books and also relied on M.M. Shahul Hameed Marakayar v. Kazi Mohammed Hussain Sahib AIR 1941 Madras 41 wherein it was held that under the Mohammedan law in the absence of Mutwalli the power of nomination and appointment of an Immam to mosque is given to the Waqf's descendants and the member of his family preferentially to others. If the person appointed by the Waqif is incompetent or unfit, the congregation have a right to select a more fit person but with the proviso that an application will have to be made to the 'Kazi' for the removal of the incompetent servant and the appointment of the person selected by the congragation.
Mr. Mehta has submitted that there alleged letter from the Secretary of the Waqf Board and also from the Minister of Waqf by which certain amount was fixed to be paid by Dai to the Waqf Board, which gives no right and prima facie the same cannot be tenned as legal sanction in the eye of law as Pesh Imam appointed under Waqf Act has more powers. The learned Dist. Judge has deferred this argument saying that it will be decided at the later stage after evidence and I need not express any opinion as the matter is only at the injunction stage.
15. Mr. Mehta has submitted that the basis of filing of this suit of the plaintiffs as argued by Mr. Muchhala is that for one reason or the other the appellant-defendants are not allowing the receiver to carry on repairing work in Moiyatpura Mosque and the appellants in the garb of repairing work changing the structure of Rasoolpura mosque and they wanted to construct shop and creating disturbance in the prayers of the plaintiff and looking to their conduct the plaintiffs have been forced to file this suit on the ground of balance of convenience and irreparable loss on 11.2.85 is unfounded. Mr. Mehta has contended that repairing work had started in Moiyatpura mosque on 6th Feb. 1984 even when arguments in the earlier appeal had not started and at that time the order of learned Dist. Judge was in their favour and at that time one Ibrahim Ali complained Waqf Board by submitting an undated application that the appellants (Youth Bohras) are making repairs and, therefore, they should be restrained. As regards Rasoolpura mosque Mr. Mehta has submitted that water was seeping from the tank and due to which flooring and some portion of mosque was badly damaged which was removed and tapes were provided and he denied the claim of the plaintiff that only due to repair two days early they were forced to file this suit, Mr. Muchhala has also shown me three reports; (1) dt. 3.7.84 mentioning three incidents 17.6.84, 20.6.84 and 29.6.84, (2) dt. 7.9.84 of incident dt. 5.9.84 and (3) dt. 8.10.84 of the period 27.9.84 to 4.10.84. Whereas Mr. Mehta has contended that the plaintiff only to cover up the position and to get rid of the earlier consent order of High Court dt. 22.5.1984 allowing both the parties to do prayer in Moiyatpura Mosque and later on appointment of receiver, caused inconvenience to the plaintiff and filed the suit without there being any necessity. Mr. Mehta has also submitted that above facts and reports clearly reveal that they are doing their prayer in Moiyatpura Mosque in peaceful manner under the supervision of Dy. S.P. (Receiver] and nothing had happened two minor incidents of disturbance, and submitted that the learned Dist. Judge has erred in passing the impugned order.
16. Mr. Mehta has contended that the relief which has been sought cannot be prayed as they are not essential part of religious practice and they cannot be a part of the subject matter of the suit. In reply to this contention Mr. Muchhala has drawn my attention to Ugam Singh and Ors. v. Keshrimal. In this case their lordships of the Supreme Court held that right of worship is a Civil right and interference with which raises a dispute of civil nature though disputes which are in respect of rituals of ceremonies alone cannot be adjudicated by civil court if they are not essential part connected with civil right of an individual or a section on behalf of whom suit is filed.
In Ugam Singh v. Keshrimal AIR 1971 SC 540 on remand by the High Court, the District Judge allowed two sects; the 'Swetamber' and 'Digamber' to worship within a specific period without disturbing each other and the Supreme Court upheld the order. But the aforesaid case is not helpful and not applicable to the facts of the present case at this stage as in that case order was passed after full trial.
17. Both the parties state that they were diligent in pursuing the final adjudication of the suit as it was to be decided in six months as per direction dt. 22.5.1984, but in the earlier suit (69/82] four written statements were filed on different dates and the last was filed on 22.9.84, out of that applications under Order 6 Rules 16 CPC for deleting some paras has been moved. The applications were ultimately allowed on 15.9.1987 by the District Judge and out of that three revisions are still pending before this Court and this Court observed in one revision No. 701 /1987 on 16.1.1989 that the similar applications under Order 6 Rule 16 CPC were also moved in suit (40/84) pending in the court of District Judge, Udaipur which has not yet been decided and it would be more appropriate to decide the other application of striking out the pleading under Order 6 Rule 16 in both the suits at one time. Both the parties admit that still the applications in suit (40/84) have not been decided and the application for consolidation of suit has not yet been moved. Looking to these facts the impugned order cannot be allowed to be maintained on this Court also and if it is maintained, the suit as stated would be deemed to have been dedreed without being finally adjudicated. Furthermore, the controversy in the suit is a sensitive matter of the two groups of the community and if it is not resolved it will create bitterness between the parties. As per admitted case of the plaintiff the appellants are in possession and managing the mosque since 1973 and in view of this it would be proper to maintain status quo.
18. The appeal could have been disposed of on a short point as affidavits and documents were not considered. The learned trial court without considering the documents independently has drawn inference of the judgment dt. 22.5.84 which was passed making interim arrangement on the consent of the parties and the finding which in itself were for a limited purpose and the order has no binding effect so far as the present case is concerned. That since both the parties have argued vehemently and looking to the nature of the dispute, the points were considered in detail, as observed above, it is made clear that and observations, opinions, views or findings arrived at by me for the purpose of these proceedings only and they cannot in law influence the trial and the observations made above in deciding these appeal, shall not come in any way of the trial of the issue of the suit and shall not prejudice either side to the parties.
19. In view of this, the findings so arrived at by the learned District Judge are not bassed on good reasons and deserve to be set aside and the application filed under order 39 Rule 1 and 2 and Order 40 Rule 1 are dismissed and accordingly I allow this appeal (351/91) and set aside the order of the learned Dist. Judge/Udaipur dt. 14.11.91, granting interim relief in appointing receiver for three disputed mosques viz. Vazirpura, Khanpura and Rasoolpura. However, the appellants will not change the original structure of these mosques.
20. So far as the other appeal No. 352/91 is concerned, the impunged order dt. 14.11.91 of the learned Dist. Judge is modified to the extent that the receiver appointed in proceedings Under Section 145 Cr. PC (case No. 365/84) shall continue. The receiver will be free to get the repaire done without altering the original structure of the Boiyatpura mosque, so that no party may faced any difficulty in offering their prayer. He will submit his report within four months as per the order of the learned Dist. Judge. Consequently, this appeal stands disposed of. The parties are left to bear their own costs.
21. Since the dispute appears to be old one, I think it just and proper to direct the learned Dist. Judge to decide the suit as early as possible. It is expected of the parties that they will get their miscellaneous applications pending before the concerned court decided within a reasonable time, so that the main case may be decided within a year.