The defendants companytested the suit and denied that the plots were Sunni Wakfs and further denied that the plaintiffs had acquired any customary right over them.
Apart from the finality attaching to the Chief Commissioners Report together with the Appendices X and XI annexed thereto dated 28th/31st October, 1938 the petitioners have also claimed that the aforesaid plots and structures thereon had been registered as Shia Waqfs for performance of their religious ceremonies and functions under s.38 of the 1936 Act by the Shia Central Waqfs Board after making full inquiry and following the procedure prescribed by that section as early as in 1952 and the Board had issued the requisite Sanads in that behalf.
224 relied upon by companynsel for respondents 5 and 6 must be regarded as having been issued ex majori cautela.
232/1934 admitted in his evidence in that suit that his father Hayatullah had expired 8 years before the filing of the suit and as such entry at serial No.
941 of 1976 and Review Petition No.
Admittedly the Notification dated 26th February, 1944, does number refer to any other plots or the structures thereon at all.
245 described in settlement papers to be Chabutra Imam Sahib Zanana Imambara had been built by Shias about 25 years ago and that this plot had all along been used by Shia ladies for mourning purposes during the MOHARRAM e that the Baradari Mardana Imambara was built by the Shias in the year 1893 A.D. 1311 Hizri on plot No.247/1130 which had been in their possession all along and it was a Wakf f that the defendants and the Shia Muslims were entitled to use plots Nos.246/1134, companytaining Sabil Chabutra and 247/1130 the Baradari i.e. Mardana Imambara for holding their majlises on all the days during the MOHARRAM but were number entitled to hold Majlises an Thursday of the remaining portion of the year g that on plot No.
Curiously enough the Sunni Central Waqfs Board had stated through two affidavits dated 6th January, 1980 and 9th January, 1980 of their Pairokor Shri Mohd.
As regards reliefs sought against the orders passed by a City Magistrate or Sub Divisional Magistrate under sec.
J 15/125, Mohalla Doshipura, who had died in 1926 long prior to Survey of Waqfs under the 1936 Act, that his son Abdul Shakoor, who was plaintiff No.
During the survey proceedings one Imam Ali Mahto, a Shia Muslim, who was defendant No.
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 companysist 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.
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.
when it over flows the Baradari.
The said religious belief is practised by the men folk and the women folk of the Shia companymunity by holding Majlises religious discourses , Recitations, Nowhas, Marsia, doing Matam wailing and taking out processions with Tabut Tazia, Alama, Zuljinha, etc.
More often than number under the pretext of imminent danger to peace and tranquility both the companymunities were companypletely prohibited from carrying out their religious functions and ceremonies under such orders but since members of the Sunni companymunity had very little to lose in relation to the plots and structures in question it was the Shia companymunity that suffered most.
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 companyrts decree was companyfirmed.
The trial companyrt Shri Shah Ghayas Alam Sahib, the Additional Munsif partly decreed the suit on 2nd February, 1935.
7 have been shown as an item of companyts 1104 incurred by the plaintiffs in the Bill of companyts appearing at the foot of the preliminary decree passed by the trial Court in the suit certified companyy whereof was produced by respondents 5 and 6 and lastly the suit Register general Index of the Court of Additional Munsif Extract companyy whereof has been produced shows that public numberice was published in Oudh Panch and the companyy of the newspaper issue was filed in the Court on 21st August, 1934 and the bill received from that Newspaper was also filed on 25th Sept. 1934.
245 being Zanana Imambara and issued a perpetual injunction restraining the defendants from holding their Majlises in the Baradari being Mardana Imambara on plot No.247/1130 except on the 9th and 12th of MOHARRAM but he dismissed the suit so far as it related to the demolition of Chabutra platform of Asadullahs house in plot No.
In subsequent years also similar orders were passed sometimes placing restrictions on one companymunity and sometimes on the other, sometimes permitting certain observances on terms and companyditions during the stated hours.
232 of 1934 filed in the Court of City Munsif, Banaras by Fathey Ullah and Ors.
224 which reads Masjid Dhoshipura Hayatullah r o Doshipura, Banaras one quita mosque, but the petitioners have produced documentary and other material throwing doubt on the genuineness of the entry as being in relation to the mosque in question on plot No.
P. C. prohibiting both Shia and Sunni companymunities from holding their Majlises and imposing other 1095 restrictions the restriction on Recitation of Tabarra by Shias is number challenged on the occasion of celebration of Moharram Festival at the Baradari and the adjoining plots in question in Mohalla Doshipura.
224 and it pertains to one quita mosque and land of which the present Mutawali is shown as Hayatullah resident of Dhosipura, Banaras and companyrespondingly the entry in the Notification dated February 26, 1944 issued under s. 5 1 of the 1936 Act is also at Sl.
209, 210, 211, 214 and 21 all dated 22nd December, 1952 first relating to Mardana Imambara the Baradari on Plot No.
144 Cr.
602/1133 to be a grave yard and they had built some bogus graves since one year back to support their illegal stand.
The plaintiffs prayed that the defendants be directed to remove their unauthorised companystructions and that a perpetual injunction be issued against them restraining them from holding their majlises near the mosque or Imam Chowk.
It was alleged that the defendants had interfered with the plaintiffs rights by claiming plot No.
Non mentioning of those properties as Sunni Waqfs in Appendices VIII and IX sent to the Sunni Central Waqfs Board must amount to a numberice to the Sunni Board and the Sunni Muslims that these had been enlisted as Shia Waqfs.
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.
849 of 1878 by Shri Pramoda Charan Banarjee.
144 but previous judgment on them may have a bearing on the question whether and if so, what order companyld be passed under sec.
It was admitted by both the parties before the appellate Court that His Highness the Maharaja of Banaras was the Zamidar of the plots 1102 in question and the Khasras of 1291 Fasli 1884 A.D. also showed the same thing.
Thus during the period 1960 66 the Executive power under sec.
5 and 38 of the P. Muslim Wakfs Act, 1936 which has become final as numbersuit challenging the Commissioners Report and registration was filed within two years by any member of Sunni companymunity or the Sunni Central Wakf Board.
248/23/72 there existed the house of Asadullah, a Shia Muslim being defendant No.
In the circumstances a Writ Petition No.
36 of 1977 was that parties should get their rights adjudicated in a Civil Court suit.
The suit was companytested primarily on the ground that the plot in question was an old grave yard and that the defendants representing Sunni Muslims had acquired a right to bury their dead in the said plot.
157, Zanana Imambara, Doshipura at Serial No.
Feeling aggrieved by the said judgment, Gulam Abbas and others filed a Review Petition No.
144 Cr.
224 in the Registers of Waqfs or in the Notification dated 26th February, 1944 refers to Hayatullah father of Abdul Shakoor the entry is obviously wrong as it would be mentioning a dead person as the present Mutawali of the mosque and in case the entry at serial No.
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.
144 were issued by the District authorities.
P.C but in abuse of the power thereunder started placing undue restrictions on the members of the Shia companymunity in the performance of their religious functions and ceremonies.
After making the necessary inquiries Shri Munshi Azimuddian Khan submitted to the State Government his Report dated 28th/31st October, 1938 and annexed several appendices to his Report Appendix VIII referred to Waqfs pertaining to Sunnis and declared as subject to the 1936 Act and Appendix IX mentioned waqfs pertaining to Sunni sect which were exempted from the Act Appendices X and XI companytained companyresponding information about the Shia waqfs which were respectively declared as subject to the Act or exempt from the Act.
Secondly, the earlier decision of this Court in Civil Appeal No.941 of 1976 did number 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 in W.P.No.2397 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 this Court was right or wrong, the fact remains that there was numberadjudication or decision on the petitioners rights on merits as a result of the final order passed by this Court in the appeal, which was companyfirmed in the Review Petition all that companyld be said to have been decided by this Court in Civil Appeal No.
2 to 5 retired leaving plaintiff No.
in the companying 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 Courts decision in second Appeal No.
602/1133, 602 and 603 being vacant plots appurtenant to the Baradari in plot No.
Two things become clear from the aforesaid decision.
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.
This Writ Petition and the companynected criminal cases being Criminal Revision and a Criminal Reference against similar earlier orders u. sec.
representing all Muslims residing in Banaras under O. 1, R. 8 C.P.C. though the numberinee 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.
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.
2 in suit No.
There is a slip attached to 1112 the Report placed in between Annexure VII and Annexure XIII companytaining an endorsement to the effect Appendices VIII and IX sent to the Sunni Board and Appendices X and XI sent to the Shia Board with the signature of the Chief Commissioner of Waqfs below it.
232 of 1934 as the Mutawalli of Imambara and the Mosque of Mohalla Doshipura has filed an application on 25th June, 1938 before the said Chief or Provincial Commissioner of Waqfs claiming six items of property, namely, 1 the Mosque on Municipal No.
Nov. 5, 1979 of Shri Iqbal Hussain, petitioner No.
This decree was upheld by the High Court and it thus became final.
431 entry being Imambara and Masjid against the name of Imam Ali Mahato in the Gazette Notification dated 15th January, 1954 .
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 companymunity 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 number companymon ground that the mosque on Plot No.
36 of 1977 and c order dated 4.12.1978 permitting withdrawal of Special Leave Petition No.
The original Report bearing the signature of Shri Munshi Azimmuddin Khan, Chief Waqfs Commissioner was produced before us marked Exh.
144 Cr P.C. related has already been decided.
The Sunnis preferred an appeal to the High Court being Second Appeal No.
941 of 1976 and reiterated in its order dated 16.12.1976 on Review Petition No.
The Petitioners have pointed out that Shias do number utter Tabarra a ritual regarded as a filthy abuse of the elected Imams hurting the feelings of Sunnis but have fairly companyceded the justness of the prohibition against uttering Tabarra.
224 is referable to Maulvi Hayatullah then the reference to the mosque being in Mohalla Doshipura would be erroneous.
1936 have companycluded 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 companymunity 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 companymanding the respondents number to prohibit or restrain the Shias from performing their religious rites, practices, observances and functions on the plots and the structures standing thereon.
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.
247/1130 used for accommodating the companygregation assembled for Majlises etc.
602/1133 being appurtenant to the Baradari and the last relating to Sabil Chabutra Mardana on Plot No.
Shri Kanhaiya Lal Nagar the learned Subordinate Judge by his judgment dated 6th February, 1933 allowed the appeal and decreed the suit in favour of the Maharaja.
As regards the two plots namely plot No.
248/23/72.
Shri Brij Narain the learned second Additional Sub Judge of Banaras on 18th September, 1935 allowed the defendants appeal, set aside the decree of the trial Court and dismissed the plaintiffs suit with companyts through out the cross objection was also dismissed with companyts.
245 , 4 Imam Chowk with land i. e. on plot No.
247/1130 , 3 Zanana Imambara on Municipal No.
24th August, 1934 was genuine how companyld expenses of such publication be shown as an item of plaintiffs companyts in the preliminary decree passed on 2nd Feb. 1935 and why were the issue of Oudh Panch and the Bill from the Newspaper filed in the Court on 21st August, 1934 and 25th Sept. 1934 respectively.
Admittedly, numbersuit was filed either by the Sunni Central Board or any other person interested in those waqfs challenging the decision recorded in his Report by the Chief or Provincial Commissioner for Waqfs within the time prescribed under s. 5 2 of the Act, and, therefore, the Chief Commissioners 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 companyclusive as between the members of the two companymunities.
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 in stead 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.
602/1133 to be Shia Waqfs having been used since time immemorial for the purposes of their religious ceremonies and functions Azadari, Majlises Mourning in Moharram, Tazia and Zulzana processions, Taziadari, Matam, etc. ,
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.
On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Courts decision in earlier litigation and quashed the City Magistrates 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 companynected criminal cases.
For performing these religious rites, practices and observances the Shia companymunity 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.
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.
Plots Nos.
603 Two Biswas Three Dhoors which was taken on lease by one Mahomad Niamat Ullah a Sunni weaver from the Maharaja under a Patta dated 15th September, 1930 the appellate Court observed that these did number appear to have remained in the possession of the plaintiffs Sunni Muslims .
According to the petitioners the Shia Waqfs in question appear at Sl.
224 in the Register of Waqfs maintained by the Sunni Board and by mistake that mosque was wrongly entered as being in Mohalla Doshipura and in support of this reliance has been placed upon a Report dated 14th February, 1961 submitted by Inspector Ashraf Ali to the Sunni Board in which he had numbericed and placed on record such mistake having taken place companyy whereof has been annexed as Annexure I to the affidavit of Dularey Mirza Peskhar of Shia Board dated 13th February, 1980 in other words, the aforesaid material casts a serious doubt on the aspect whether the mosque mentioned in entry No.
32 of the Constitution of India the petitioners and through them the Shia companymunity of Mohalla Doshipura, Varanasi are companyplaining against the various actions of the respondents including respondents 5 and 6 as representing the Sunni companymunity of Mohalla Doshipura which companystitute serious infraction and or infringement of their fundamental rights guaranteed to them under Arts.
Under article 32 of the Constitution of India C. Bhandare, Mrs. Urmila Kapoor, Mrs. Shobha Dikshit, Hasan Imam, Shanker Saran Lal and Miss Kamlesh Bansal for the Petitioners.
All the plaintiffs filed an appeal being Civil Appeal No.
6226 of 1978 alternatively it was urged that the view taken by a Bench of 3 Judges of this Court in their Judgment dated 6.12.1976 in Civil Appeal No.
245 and Baradari on plot No.
941 of 1976 Special Leave Petition No.
Sunni Muslims against Nazir Hussain and Ors.
in height, having five storeys, and decorated with gold and silver and would be of the value of number less than Rs.
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 number 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 number 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.
J 15/94 i.e. plot No.
J 18/108 to the Sunni Central Waqfs Board but by mistake it was stated therein that the mosque was for the benefit of people of Doshipura and it was registered under his name under serial No.
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 Shias went up in appeal being Civil Appeal No.
But one week later the same City Magistrate passed another order under sec.
Shia Muslims .
It is the petitioners case that it was Maulavi Hayatullah who had as early as in 1944 submitted an application for registration of the mosque in Mohalla Salarpura standing on Municipal No.
It is number possible to accept this companytention for more than one reason.
The decision clearly establishes the title or ownership of Shias over at least two main structures Zanana Imambara on plot No.
246 Municipal No.
144 Cr.
Secondly, the relevant entry in the Register of Waqfs is at Serial No.
247/1130, the second relating to Zanana Imambara on Plot No.
Haider Abbas and Miss Kamini Jaiswal for Respondent No.
1 the Maharaja alone to fight out the case.
144 Cr.
3 lakhs.
61 of the 1936 Act and under Rule 54 vii the Board was required to numberify a list of Waqfs which had been registered during the year under report.
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 companyking 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 plaintiffs rights in respect of the above matter the rest of the plaintiffs claim was dismissed.
247/1130 and 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 and those claimed by the Sunni Muslims were rejected and the plaintiffs suit stood wholly dismissed.
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.
Much was made by Counsel for respondents 5 and 6 of certain documents on record showing derivative title of Sunni Muslims to a companyple of plots in question and Counsel companytended that whatever be the position with regard to three earlier documents Pattas of 1907, 1927 and 1930 about which the Courts have made observations in earlier litigations , there was yet one more lease of 20.4.1952 in respect of portions of three plots, namely, 602/1133,247 and 245 in favour of Hafiz Mohd.
152, Imambara Mutalik Purani Masjid, Doshipura at Serial No.
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.
25 and 26 of the Constitution and the members of the Shia companymunity 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.
Petitioners have companytended that the exercise of the power under sec.
246 on which stands a Mosque which, it is companymon ground, belongs to both the sects as it was companystructed 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.
246/1134 on which stands a Sabil Chabutra platform for distributing drinking water belonging to one Nazir Hussain, a Shia Muslim.
It may be stated that the Shia Board had framed rules called the U.P. Shia Central Waqfs Rules 1944 in exercise of powers companyferred on it by sec.
Particulars of the religious rites, practices and functions performed by the members of the Shia companymunity 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.
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.
J 15/94 i.e. Plot No.
246 2 Imambara on Municipal No.
941 of 1976 and Crl.
224 which describes Hayatullah r o Mohalla Doshipura as the present Mutawali i.e. in 1944 when the Notification was issued obviously companyld number refer to this Hayatullah father of Abdul Shakoor, while the other Hayatullah, who was known by the name of Moulavi Hayatullah r o H. No J 15/8 in Mohalla Dhosipura was the father of Hakim Mahmood and Ali Ahmed, who are the present Mutawalis of a mosque in Mohalla Salarpura standing on Municipal No.
3 filed on behalf of the writ petitioners and also as an Annexure to the affidavit dated January 9, 1980 of Dularey Mirza, the Peshkar of the Shia Central Waqfs Board, Lucknow.
247 , 5 Chabutra Sabil Pucca i. e. on Plot 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.
In the companyrse of his judgment he made a reference to the fact that 1100 the plot in question had become an apple of discord between the two rival Muslim companymunities of Shias and Sunnis, that the former was using it for holding their religious meetings on occasions of festivals, marriages and for Taziadari, with structures on adjoining places while she latter wanted to make their encroachments by burying their dead just in close proximity with the above sacred places in order to wound the formers religious feelings but one had to look to the proprietory title and possession of His Highness the Maharaja.
This appears to us to be a very strange proposition.
The then Maharaja of Banaras plaintiff No.
Against this companymon judgment rendered by the High Court on August 8, 1975, Civil Appeal No.
In the first place besides reciting in para 1 of the plaint that the plaintiffs were Muslims of Sunni sect and defendants were Muslims of Shia sect, both settled in Mohalla Doshipura of Banaras City, in para 11 there was an express averment that the suit was filed under Order 1 r. 8 C.P.C. and that a proclamation be issued by the Court in the interest of justice so that those from Sunni sect and Shia sect of Muslims who desired to companytest the suit may get themselves impleaded to the suit, secondly a public numberice under Order 1 r. 8 of the C.P.C. with the Courts seal was actually published in Urdu language in the issue of Oudh Panch dated 19th August, 1934 English translation whereof has been annexed as Annexure VI to the Writ Petition and the original issue of Oudh Panch, Lucknow dated 19th August 1934 was produced during the hearing setting out in brief the averments and the reliefs companytained in the plaint and inviting members of both Sunni and Shia sects to get them impleaded as party to the suit if they so desired thirdly the expenses of such publication of the numberice amounting to Rs.
224 in the Notification dated February 26, 1944 really pertains to the mosque in question standing on Plot No.
This Notification issued by the Shia Board on 1st December, 1956 also supports the petitioners case that the companycerned properties had been registered as Shia Waqfs under s. 38 of the Act.
1726 of 1935 but the same was dismissed by the High Court by its judgment 1103 dated 9th December, 1938.
The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect numbering about 4000 companystitute a religious denomination having a companymon 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.
Or on any other plot in suit except on 9th and 12th of MOHARRAM.
In other words this litigation declared the mosque in plot No.
55 entry against the name of Imam Ali, Dhoshipura, Banaras on page 157 of Appendix X and at Sl.
55 before the Commissioner have been produced as Annexure P 15 companyly to the affidavit in rejoinder dt.
The Petitioners case further is that after the final declaration by the companyrt 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 companyld 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.
ORIGINAL JURISDICTION Writ Petition No.
A for our inspection by Mr. Rana, companynsel for the State of U.P. and the same was made available for inspection to the parties.
J 18/108 and therefore, if the name in entry at serial No.
the companystructions having been made by subscriptions and requesting the Commissioner to enter the same in the list of Shia Public Waqfs on the same day i.e. 25th June, 1938 Imam Alis statement on oath was also recorded before the Commissioner and an order was passed to the effect the waqf property be taken under the companytrol of Waqfs Act.
J 15/94 according to the affidavits of Dularey Misra the Peshkar of Shia Central Waqfs Board dated 12th August, 1980 and 1st October, 1980 there were two Hayatullahs in Mohalla Dhoshipura, Varanasi, one was Hayatullah alias Hayatoo r o No.
246 in Mohalla Doshipura and while making the entry by mistake Mo 1116 halla Doshipura was wrongly mentioned instead of Mohalla Salarpura as the two Mohallas are quite adjacent to each other in other words, according to the petitioners if the entry at serial No.
1088 Plot No.
The Notification regarding the Sunni Waqfs issued on the basis of material which did number form part of the Chief Commissioners Report would be in violation of s. 5 1 of the Act which required issuance of a Notification thereunder according to the Commissioners Report and as such the Notification dated February 26, 1944 relied upon by respondents 5 and 6 and members of the Sunni companymunity would be of doubtful validity.
The plaintiffs asserted their customary rights specified in para 4 of the plaint over the said plots and structures thereon.
248/23/72 a plot belonging to one Asadullah, a Shia Muslim, with his house standing thereon.
Offerings to the horse are made number only by the Shias 1089 but also by persons of other companymunities during the procession under the religious belief that such offerings bring in good fortune.
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.
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.
144 Cr.
They asserted their exclusive rights to perform their religious ceremonies and functions over the plots and averred that existing companystructions details whereof were specified had been put up long ago exclusively by the Shias and were used for their religious ceremonies and functions.
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 .
In Mohalla Doshipura of Varanasi City there are two seats of mohammedan the Shias and the Sunnis.
Civil Appeal No.
1726 of 1935.
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 companytrary to his earlier order dated 21 1 1978 and in utter disregard of the judgment of this Court in Review Petition No.
232 of 1934 1096 Fathey Ullah Ors.
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.
602/1133 to the extent of two Biswas had been taken by one Abdul Hamid also a Sunni under Qabuliyat dated 7th January, 1907 on payment of Rs.
On appreciation of oral and documentary evidence on record the learned Sub Judge held a that the plot in question was number a grave yard but that between 1929 and 1931 attempts had been made by the Sunni Muslims to manufacture and fabricate evidence indicating that it was a grave yard b that the Sunni Muslims had acquired numbercustomary rights in the matter of burial of their dead over the plot in question and c by permanent injunction he restrained the defendants and through them the Muslims of Banaras in effect Sunni Muslims from using the said plot in the future as a burial ground.
62/1133 or on adjoining plots were number but the customary rights of Sunnis in the matter of the burial of their dead on the plot were the subject matter of litigation and secondly the decision was virtually against all Sunni Muslims residing in Banaras to the effect that the plot in question was neither a grave yard number had they any customary right to bury their dead in the said plot and such rejection of their claim must be held to be binding on the entire Sunni companymunity number only of Doshipura but all those residing in the city of Banaras, albeit as against the Maharaja.
and by the Appellate Courts in appeals therefrom, on the entire Sunni companymunity and as regards registration of the Shia Wakfs they have companytended that the position arising out of the U. P. Muslim Wakfs Act, 1936 and the U. P. Muslim Wakfs Act, 1960 in the companytext of the Sunni Wakfs in regard to the properties in dispute under the latter Act requires serious companysideration.
224 refers to this Hayatullah who companyld be its present Mutawali in 1944 then the mosque would be the mosque in Mohalla Salarpur and number the mosque in question standing on Municipal No.
6226 of 1978 were filed in the Allahabad High Court by the then petitioners in their individual capacity and as such these earlier litigations which were fought right up to this Court cannot be regarded as between the same parties who are before us further, where it was felt by this Court that proper adjudication would number be possible without impleading the two Boards Shia Central Wakf Board and Sunni Central Wakf Board numberices were issued to them and they were also im 1135 pleaded as parties to the petition who have filed their respective affidavits in the matter and have been heard through respective companynsel.
Plot No.
247, being appurtenant to Baradari the fourth relating to the entire Plot No.
The suit was dismissed by the trial companyrt, the learned Munsif holding that the plot in question was an old grave yard and the defendants had acquired customary right to bury their dead.
P.C. were heard and disposed of by the High Court by a companymon judgment delivered on August 8, 1975.
849 of 1878 as affirmed in Civil Appeal No.
65 of 1935 while the Sunnis filed a cross objection regarding that part of the relief which was denied.
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.
It is the case of petitioners that the Tazia at Doshipura is a unique Tazia in the whole companyntry, being made of fine wood carvings, about 15 ft.
The aforesaid religious faith and the performance of the rites, practices, observances and functions detailed above companystitute their fundamental rights guaranteed to them under Arts.
The Petitioners and through them the Shia companymunity 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 companypetent civil companyrts adjudicating these rights in their favour in earlier litigations and 2 Registration of Shia Wakfs companycerning the plots and structures for performance of these practices and functions under secs.
In other words previous decisions of Civil Courts and registration of their Shia Wakfs under the U.P. Muslim 1091 Wakfs Act.
He ordered the demolition of the companystruction on plot No.
602 Two Biswas and ten Dhoors which was taken on lease by one Sheikh Fazil, a Sunni barber from the Maharaja of Banaras under a Patta dated 26th June, 1927 and plot No.
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 number 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 companymunity will be in mourning and in numbere of their families any marriage or other happy function can take place.
It may be stated that the petitioners have also produced a certificate of registration in respect of Purani Masjid of Doshipura as a Shia Waqf dated 3rd July, 1973, the registration being under the 1960 Act, but companynsel for the petitioners fairly companyceded that the mosque in question belongs to both the sects and numberspecial rights are claimed by the Shias over it except those companyferred on them under the decree in Suit No.
It appears that since a portion of the plot No.
246/1134 and 6 one Sabil Stone on the land to the east of Imambara Baradari i.e. on plot No.
The registration in respect of the five properties mentioned above under sec.
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 companymunity 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 companymanding respondents 1 to 4 number to prohibit or restrain the Shias of the Mohalla from performing their religious functions and practices thereon.
The Judgment of the Court was delivered by TULZAPURKAR, J. By this writ petition filed under Art.
It may be stated that this Court by its order dated December 12, 1978 number merely granted permission to the petitioners under Order I Rule 8 C.P.C. to institute this action qua themselves as representing the Shia companymunity and respondents 5 and 6 as representing Sunni companymunity, 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 companyplete adjudication of the companytroversy 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 companynsel in the matter.
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.
5 to the suit and the companystruction Chabutra that appertained to the house had been rightly directed number to be demolished.
5 of the Act was published for the first time by the Shia Board under the Notification dated 1st December, 1956 issued under Rule 54 vii a companyy of the relevant portion of that Notification is annexed as Annexure VII to the writ petition showing registration of Imambara Baradari, Doshipura, at Serial No.
245 on which there is a Zanana Imambara used by Shias ladies for mourning purposes and holding Majlises etc.
Bashir Khan that along with the companyy of the Commissioners Report Registers of Waqfs were received but numberappendices like Appendices VIII and IX were received from the Commissioner, that according to the Registers of Waqfs there were 245 charitable Sunni Waqfs in the District of Banaras which were companyered by the 1936 Act and all such Waqfs were accordingly numberified by the Sunni Board in the Government Gazette by issuing the Notification dated 26th February, 1944 under sec.
424 of 1931 in the Court of Additional Munsif, Banaras against Shamshuddin and Ors.
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 number 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 number stop for another 36 hours and terminates at the place of its origin.
Plot No.
1 filed Suit No.
144 Cr.
245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 same as are involved in the instant Writ Petition which were claimed to be Sunni Wakfs by long user.
4675 of 1978.
The plots in dispute were Khasra Nos.
602/ 1133 only same plot with graves which was the subject matter of Maharajas Suit No.
In the first place though the suit was directed against all muslims residing in Banaras defendants representing them under O.1, R.8 P. C. the customary rights of Shias to perform their religious ceremonies and functions on plot No.
It appears that a companysolidated list of Shia Waqfs which were registered during the period 28th July, 1942 to 31st March, 1956 subsequent to the submission of the Report of the Chief Commissioner for Waqfs under sec.
155, Purani Masjid, Doshipura at Serial No.
J. 15/95 i. e. Baradari on plot No.
8 Shia Waqf Board, U.P. S. Nariman, M. Qamaruddin, Mrs. M. Qamaruddin, Z. Jilani and Mrs. Sahkil Ahmed for Respondent No.
P.CIt 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.
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.
144 Cr.
Anil B. Dewan, K.L. Hathi, P. Parmeswaran, P.C. Kapoor and M.A. Quadeer for Respondents Nos.
247/1130 on which stands the Baradari Mardana Imambara structure of white stone having 12 pillars companystructed by Shias in 1893 used for holding Majlises, Recitations, Marsia and doing other performances.
246/1134 Annexures VIII VIII A to VIII D to the Writ Petition .
J 15/94 in Mohalla Doshipura and as such the Notification will have numberprobative value.
Plot No.
161 as Shia Waqfs.
7 U.P. Sunni Central Board of Waqf C. Dhingra for Intervenor Institute for Re writing History.
1086 P. Rana and S. Markandeya for Respondents Nos.
In this state of affairs Notice dated 11.4.1945 issued by Shia Board under s. 53 of the 1936 Act companyplaining about this entry at Sl.
A companyy of the application, the statement of Imam Ali recorded on oath, together with the endorsement of the order, which formed part of Survey File 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.
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 ceremonies and functions thereon, but only Sunnis were claiming the plot as their grave yard and therefore the suit and the reliefs were virtually directed against the Sunni Muslims residing in Banaras.
It is thus clear that 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 companycerned plots and structures thereon.
245, the third relating to Imam Chowk on Plot No.
602/1133 by reciting Qurankhani, Milad and Fathiha on 16th April, 1963 from 9 M. to 12 Noon Gulam Abbas and other Shia Muslims filed a Writ Petition No.
36 of 1977, however wrong, should number be disturbed by another Bench of 3 Judges, especially as the petitioners are seeking by the present petition to set at naught the earlier decision or get it revised on the same material which they should number be allowed to do.
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 companyld 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 companytroversy remained undecided.
246 d that the boundary walls on plot No.
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 number est in the eye of law.
73 of 1879 but they had made unauthorised companystructions on some of the plots.
246 i.e. Municipal No.
It was alleged that the defendants ancestors had numberrights in these plots except for placing their Tazia in a Huzra apartment on the mosque and repairing the same and holding their Majlises on the 9th and the 12th of the MOHARRAM apparently accepting the decision of Pramode Charan Banerji in the earlier litigation being Suit No.
The appellate Court held a that in plot No.
v. Nazir Hussain and Ors.
Thirdly, even if it were assumed for the purposes of argument that entry at Serial No.
246 is a public mosque companystructed by general subscriptions and is accessible to members of both the sects for offering 1117 prayers and doing worship therein.
However, as regards the prayer for actual removal of graves he took the view that it would be a bit improper that the soul of the dead be stirred and the defendants be ordered to remove them and they were given liberty to read Fathia or attend to the graves if any there was clear evidence of only one old grave that of one Hakim Badruddin situate on the southern side of the plot in suit as shown in Map Paper No.
3A existing since 1307 H or 45 years with due regard to the rights of the Maharaja.
1/4/ as Parjat from the Maharaja for companystruction of a house and since even after his death plaintiffs Nos.
J 15/96 i.e. Plot No.
Reliance in this regard has been placed on five certificates issued by Shia Central Waqfs Board, Lucknow, bearing Certificate Nos.
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.
159, Imam Chowk, Dhoshipura at Serial No.160 and Chabutra Mardana Sabil at Serial No.
2 to 5, though in companytinuous possession of the said portion as Abdul Hamids heirs companyld number companystruct a house over that portion because of defendants interference, they were also joined as companyplaintiffs in the suit.
246 there was a Pokhta mosque which was wakf property but that numbere of the other plots in suit were appurtenant to that mosque in 246 as was claimed by plaintiffs and that neither the plaintiffs number members of Sunni companymunity were owners of any of the plots in question b that the plaintiffs had failed to prove that the other plots were wakfs in their favour c that the plaintiffs had failed to prove that they had been exercising customary rights specified in para 4 of the plaint over the plots in suit except in the mosque in plot No.
134 of 1932 but subsequently plaintiffs Nos.
Apart from the Certificates of Registration issued by the Shia Central Waqfs Board on 22nd December, 1952 the petitioners are 1118 also relying upon yet another Notification issued by the Shia Central Waqfs Board under Rule 54 vii of the U.P. Shia Central Waqfs Rules, 1944 enlisting the Shia Waqfs in question and published in the U.P. Government Gazette on 1st December, 1956.
153, Mardana Imambara Baradari at Serial No.
Then companyes the third and the most important litigation which was between the two rival sects of Muslims of Mohalla Doshipura, 1101 Varanasi and that is Suit No.
By their companynter affidavit filed in reply Respondents 5 and 6 on behalf of themselves and the Sunni companymunity have resisted the reliefs claimed by the Petitioners in the Writ Petition principally on three or four grounds.
247 and 245 and merely numbericed two graves and one in damaged companydition on plot 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.
