MAHOMED OOSMAN Vs. ESSACK SALEH MAHOMED VANJARA
LAWS(BOM)-1935-4-3
HIGH COURT OF BOMBAY
Decided on April 01,1935

MAHOMED OOSMAN Appellant
VERSUS
ESSACK SALEH MAHOMED VANJARA Respondents

JUDGEMENT

- (1.) . The plaintiffs seek to establish a claim to be what they designate hereditary mujawars of the Pir Haji Ali Dargah. The history o the dargah is traced in the judgment on the counter-claim on p. 524- eds. See also judgment on counter claim. P. 529. The management of the said dargah and the properties appertaining thereto is subject to a scheme framed by this Court in suit No.1337 of 1916. The defendants are the trustees appointed under the scheme. The plaintiffs claim, independently of the scheme, to act as mujawars, to occupy free of rent certain quarters conveniently designated in the plan (exhibit 7) as the mujawar's quarters, to take and keep for themselves the offerings collected in what is styled the mujawar's ghalla (offering box) and the other offerings specified in the plaint paragraphs 4 to 8 and prayers (b) to (g ). It is also prayed that a suit brought by the trustees to eject the plaintiffs from the mujawar's quarters may be stayed, and that interference with the plaintiffs' possession of the mujawar's quarters and of their duties as mujawars and enjoyment of their aforesaid rights be restrained.
(2.) THE plaint offers no explanation of the word mujawar, nor particulars of the functions ascribed to a person so described, nor any effective reference to his duties as the holder of an office known to the law. THE rights and privileges claimed are, on the other hand, abundantly set out in paragraphs 4 to 8 and in prayers (a) to (g ). It is only in the 14th paragraph and in prayer (t) that duties are alluded to; but it is not indicated what they are. THE reference to services in paragraphs 10 and 12 is not made primarily by the plaintiffs, nor with the purpose of giving the plaintiffs' version. On the contrary it is impliedly denied that the privileges claimed are in part consideration of services to be rendered by the mujawar. THE plaint is also cryptic as to the origin, source or derivation of these alleged rights : whether contract grant or operation of any and what law. Long continued enjoyment, it is assumed, satisfies all requirements and establishes rights of every description. THE plaintiffs' counsel attempted to fill up these hiatuses in terms that I will presently state. I have, greatly against my inclination, allowed this suit to go on so far. The questions raised are, however, of first impression, and I thought it necessary to show such latitude as might enable the plaintiffs to put forward their best considered and most plausible case, and, if possible, to cite authorities, if any are available, specifying the functions alleged to be performed by mujawarsauthorities enabling me to hold that the office is known to the law : in the sense that the existence of such an office, with defined functions, is recognised as a necessary part of the machinery required for the administration of the waqf, or at any rate as being conducive to the fulfilment by the trustees of their duties in the administration of such an endowment as is before me; or that the agglomeration of functions attributed to the alleged office could otherwise in some way be assumed by the plaintiffs. I accordingly postponed the hearing, in spite of well-founded protests from the trustees. Prior to the postponement, the questions that, in my opinion, actually arose, were put to the plaintiffs' counsel so that they might not be taken by surprise. I also allowed the plaintiffs' counsel to develop their case in opening it, with some fulness and much latitude, and to call their first witness Sayyad Yakub Sayyad Muhammad. But the witness spoke not of his own knowledge but of what he had heard, and objections were rightly taken to the relevance of his proffered evidence : Indian Evidence Act, Section 32, Sub-section (4), and Section 49. Ultimately for the reasons that I am about to state I considered it best to stop further evidence of the same kind being adduced.
(3.) AT the outset I must mention that certain arguments on behalf of the plaintiffs, having references to the supposed religious predilections of the Judge, proceeded on a misconception of judicial duties. The views supposed to be held by the Judge who happens to presidewhether particular beliefs are or are not supposed to be acceptable to him, or his views expressed as an author or text-writer, have nothing to do with his judgment which must be. formed after hearing the evidence and the arguments. The judgment must be in conformity with the law by which the particular parties are governed in British India. The law by which the parties are governed depends on circumstances amongst which such supposed personal opinions of the Judge - are not included. Nor are surmises as to such opinions otherwise relevant. The law governing the parties is the Hanafi law. My references to the law are therefore based on my understanding of the Hanafi interpretation of Muhammadan law, and of the doctrines of Islam,law and religion being in the present instance roughly concentric though having different spheres. I shall have to refer to certain basic ideas, which so far as my knowledge extends are common to all Islamic systems : Akbamlly v. Mahomedally (1931) I. L. R. 57 Bom. 55 : s. c. 34 Bom. L. R. 655 Whether such basic ideas as I shall have to refer to in the present judgment are or are not recognized by other systems is not a matter for present decision, and I do not intend expressing any opinion on it.;


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