KUTHUKUTTY KUNHALIS SON KUNHALAVI MUSALIAR Vs. PAKKATH ENUS SON ABDULLA
LAWS(KER)-1964-3-28
HIGH COURT OF KERALA
Decided on March 17,1964

KUTHUKUTTY KUNHALIS SON KUNHALAVI MUSALIAR Appellant
VERSUS
PAKKATH ENUS SON ABDULLA Respondents

JUDGEMENT

- (1.) This is an appeal from a decree in a suit for a declaration that the Musalmans of Alanellur are entitled to conduct 'Juma' prayers in the Mosque scheduled to the plaint and to restrain the defendants from interfering with the plaintiffs in the exercise of the above right. The plaint allegations were that the plaint mosque was a Jumayath mosque, that the Muslims of Alanellur required this mosque for conducting juma prayers as it has the amenities of a Jumayath mosque, that it was used as a public mosque for conducting juma prayers also for the last 40 years, that the defendants had no particular right over the mosque in question, that there was another mosque called 'Mundath Mosque near the plaint mosque, that it was difficult to conduct Jumayath prayers in that mosque because of the increase in population, that the defendants' action in approaching the Executive 2nd Class Magistrate and obtaining an order restraining the plaintiffs from carrying on the juma prayers in the plaint mosque was unauthorised, that the plaintiffs had the right to conduct the juma prayers in the plaint mosque and that the order passed by the Magistrate restraining them from conducting juma prayers was illegal and ultra vires.
(2.) Defendants 1 and 3 to 21 contended that the suit was not maintainable, that the plaintiffs were wahabis who had no hold in the locality, that the plaint mosque was only a Niskarapalli, that no juma prayers were ever conducted there, that the property and the mosque which stood thereon belonged to the father of the 6th defendant, who constructed the mosque for the purpose of enabling the persons who resorted to the nearby market to offer their niskarams, that he never intended the mosque to be used as a place for conducting juma prayers, that the public of the locality did not acquire any right to conduct juma prayers contrary to the intentions of the founder of the mosque, & that neither the 6th defendant nor his predecessor in interest ever allowed juma prayers to be conducted in the mosque. It was also contended by them that there could be no juma prayers in the plaint mosque as there was already a mosque in Mundath where alone the Musalmans of the locality should meet for juma prayers, and that the religious texts forbade the conduct of juma prayers in the same mahal.
(3.) The Trial Court found that the plaint mosque was a public mosque, that it was founded by the father of the 6th defendant, that the 6th defendant had alienated the property and the mosque, that the plaintiffs had the right to conduct the juma prayers in the mosque and decreed the suit. The lower appellate court on appeal by the defendants confirmed the decree of the Trial Court and hence the present appeal.;


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