KASLIWAL, J. -
(1.) THIS civil reference arises out of a litigation which has a chequered history. Syed Ilmuddin filed a suit for declaration that he was entitled to hold the office of Sajjadanashin of the Dargah Khwaja Sahib of Ajmer and to receive emoluments and perquisites attached thereto. It was also prayed that the defendant Inayat Hussain be restrained from exercising the rights and privilages of the office. THIS suit was filed as far back as May 18. 1948, in the Court of Sub-Judge First Class, Ajmer. The case of the plaintiff as set out in the pleadings was that the last Sajjadanashin Diwan Syed Alley Rasool Ali Khan migrate to Pakistan in September, 1947, as such the office of Sajjadanashin Ml vacant. His case was that the office of Sajjadanashin was hereditary and he being the nearest qualified male relation in the male line of descendants of Diwan Syed Alley Rasool Ali Khan, was entitled to succeed to the office according to the rule of primogeniture but the defendant Hakim Inayat Hussain had illegally assumed the charge of the office of Sajjadanashin on May 5, 1948, in pursuance of the order of the Chief Commissioner, Ajmer. The defendant Inayat Hussain denied the plaintiff's claim and pleaded that the right to hold the office of Sajjadanashin vests exclusively in the Government and to the person who was declared as Jagirdar of Dilwara, Hokaran and Kishanpura under the Ajmer Land and Revenue Regulations. The defendant also took the plea that the plaintiff was not the nearest qualified male relation entitled to succeed to the office of Sajjadanashin by the rule of primogeniture. The suit was dismissed on May 9, 1951 on the preliminary objection that the suit was not maintainable in view of Section 119 of the Ajmer Land and Revenue Regulations. On appeal by the plaintiff, the District Judge, Ajmer set aside the judgment and decree of the learned trial Court by its judgment dated August 27, 1952, and held that Section 119 of the Ajmer Land and Revenue Regulations did not bar the jurisdiction of the Civil Court to try the suit. On a second appeal filed by the defendant the then Judicial Commissioner, Ajmer, by his judgment dated November 17, 1953. set aside the judgment of the District Judge and hold that the jurisdiction of the civil Court was barred. The plaintiff then went in appeal to the Supreme Court by a certificate and the Supreme Court vide its judgment dated March 7, 1961, allowed the appeal and set aside the judgment of the Judicial Commissioner and remitted and case back to the trial Court for fresh decision in accordance with law. During the pendency of the appeal before the Supreme Court Dargah Khwaja Sahib Act, 1955 (hereinafter referred to as 'the Act') came into force. It may also be mentioned at this stage that during the pendency of the appeal before the Supreme Court defendant Hakim Inayat Hussain died and the Dargah Committee constituted under the Act appointed Syed Saulat Hussain son of Hakim Inayat Hussain as interim Sajjadanashin under sec. 13(1) of the Act and this appointment had been approved by the Governor of the State of Rajasthan vide notification dated July 27, 1964, with effect from the date of the death of Hakim Inayat Hussain, who died on September 25, 1959 The Supreme Court, in the appeal pending before it, also directed that after the death of Hakim Inayat Hussain his legal reprensta-tives be impleaded as parties to the lis. After the remand of the case from the Supreme Court, the Munsif, Ajmer City acquired jurisdiction to try the suit as in the meanwhile the Court of Sub-Judge had been abolished. The Dargah Committee, Ajmer, moved an application for being impleaded as a defendant and the same was allowed on September 30, 1964. The Dargah Committee in its written statement pleaded that on the death of Hakim Inayat Hussain responsibility for making interim arrangements for the performance of the function of Sajjadanashin had devolved upon it under section 13(1) of the Act and consequently it had appointed Syed Saulat Hussain son of Hakim Inayat Hussain and the same has been approved by the Governor also. The Committee further pleaded that it had the anthority under section 13 of the Act to make permanent arrangements for the office of Sajjadanashin and the suit had become infruc-tuous. The learned Munsif by his order dated October 13, 1964, over-ruled the objection raised by the Committee and held that the suit was triable by the Civil Court By another order the Munsif also rejected the plea that the suit had been under-vzlued and the Court fee paid was insufficient. A revision was filed in the High Court against the two orders of the Munsif and Jagat Narayan J. (as he then was) vide his order dated August 25, 1966, allowed the revision application with the consent of the parties to this extent only that the plaintiff may amend his plaint so as to value the suit at Rs. 11,000/-and the suit be withdrawn from the court of Munsif Ajmer and be transferred to the court of Civil Judge, Ajmer. The plaintiff in accordance with the direction of the High Court amended the plaint and the suit was transferred to the court of Civil Judge, Ajmer. The learned Civil Judge after recording the evidence of the parties, dismissed the suit by his judgment and decree dated December 14, 1970. Aggrieved against the aforesaid judgment and decree the plaintiff filed an appeal before the High Court and the learned Single Judge allowed the appeal set aside the judgment and decree of the Civil Judge, Ajmer and granted a declaratory decree in favour of the plaintiff against the defendant to the effect that so far as nearness in propinquity to the last Sajjadanashin is concerned, the plaintiff was the rightful person entitled to hold the office of Sajjadanashin of the Dargah Khwaja Sahib of Ajmer and that Hakim Inayat Hussain had no right or title to hold the said office as against the plaintiff Syed Saulat Hussain son of Hakim Inayat Hussain filed a special appeal under sec. 18 of the Rajas-than High Court Ordinance against the judgment and decree passed by the learned Single Judge dated August 9, 1974. In pursuance to the decision given by the learned Single Judge dated August 9. 1974, the Governor of Rajasthan declared the plaintiff Syed Ilmuddin Ali as Sajjadanashin vide notification No. F.20(2l) Rev./Gr.I/75 dated July 7, 1975 In pursuance of this notification and decision of the learned Single Judge of the High Court Syed Ilmuddin took charge of office of Sajjadanashin on July 8, 1975 During the pendency of the special appeal before this Court the plaintiff Syed Ilmuddin also died on October 23, 1975, and Syed Zaina-ul-Abdin elder son of Syed Ilmuddin approached the Dargah Committee for his appointment as Sajjadanashin in place of his father, who was the last Sajjadanashin. The Dargah Committee issued a notice inviting applications from the persons claiming to succeed to the office of Sajjadanashin under sub-sec (1) of sec. 13 of the Act, which was published in the Gazette of India dated December 11, 1976. In pursuance of this notice 11 applications were received upto 10th January, 1977, of the following persons : 1. Shri Syed Ishrat Hassain Moint. 2. Shri S. Mashkoor Ahmed Chishti. 3. Shri Syed Saulat Hussain Ali Khan. 4. Shri Syed Zain-ul-Abdin Ali Khan. 5. Shri Peerzada Syed Vilayat Hussain. 6. Shri Syed Gafoor Ahmed Chishti. 7.Shri Syed Wazir Ali Niazi 8. Shri Syed Ehteshamuddin Faridi. 9. Shri Abdul Majid. 10. Shri Syed Abrar Ali. 11. Shri Syed Ibrahim Hyderabadi. An application was also moved on March 10, 1978, by Shri Syed Iftkhar Ali that he had applied within time yet his name has not appeared in the list of the claimants. It was thus prayed by him that his name may also be included in the list. The matter was considered by the Dargah Committee. The Governor of Rajasthan took the stand that only one Syed Zain-ul-Abdin, who claimed to succeed to the office of Sajjadanashin on the ground of being the son of the last holder of the office, the other applicants were not heirs of deceased Sajjadanashin. The other applicants did not claim to succeed the last Sajjadanashin Shri Syed Ilmuddin Ali Khan. The office of Sajjadanashin was a hereditary office and there being only one claimant to succeed to the office of Sajjadanashin no reference to the High Court was necessary. THIS decision of the Governor was conveyed to the Dargah Committee vide letter No. F. 21(21) Rev /Gr. 1/75 dated May 7, 1977. The matter was then considered by the Dargah Committee in its meeting held on June 21. 1977. There was a difference of opinion amongst the members of the Dargah Committee. All the members except one Shri Akbar Ali Khan took the view that after the demise of Shri Syed Ilmuddin Khan on 23rd October, 1975, the office of Sajjadanashin has fallen vacant and under sub-sec (3) of sec. 13 of the Act where more persons than one claimed to succeed to the office of Sajjadanashin it was incumbent upon the Committee to refer the case to the High Court and accordingly it was decided that a copy of this resolution dated June 21, 1977, together with all the applications and relevant papers be forwarded to the Rajasthan High Court for dealing with the applications in accordance with the provisions contained in sub-sec (3) of sec. 13 of the Act One of the members Shri Akbar Ali Khan gave a dissenting note and took the view that when there was only one claimant from the heirs of the late Sajjadanashin and there was no dispute in his heirs, the Committee was bound according to law to recommend him for Sajjadanashin to the Governor of Rajasthan for his approval and there was no necessity to refer the matter for inquiry and decision by the High Court. He was in agreement with the view expressed by the Special Secretary to the Government in his letter dated May 7, 1977. declaring Shri Syed Zain-ul-Abdin as Sajjadanashin of Dargah Khwaja Sahib of Ajmer in place of his father late Shri Syed Ilmuddin Khan.
(2.) ON January 11, 1980, a Bench of this Court gave a direction that arguments on the reference should be heard after the decision in the Special Appeal has been delivered. The (Division Bench) Civil Special Appeal against the judgment of the learned Single Judge was decided on March 7, 1980, by Hon'ble the Chief Justice and one of us. The Division Bench in its judgment dated March 7, 1980, upheld the judgment and decree passed by the learned Single Judge and dismissed the appeal filed by Syed Saulat Hussain. The reference thus came up for consideration before us after the decision of the special appeal.
According to Mr. Parekh, appearing on behalf of Zain-ul-Abdin, the reference was not at all maintainable under sec. 13(3) of the Act. According to Mr. Parekh, the Governor after examining all the applications, was pleased to order under sec 13(2) of the Act that there was only one applicant Syed Zain-ul-Abdin, who claimed to succeed to Syed Ilmudddin,. the last Sajjadanashin on the ground of being his eldest son. The other applicants were not claiming on account of being the nearest heir to the last Sajjadanashin. Thus, it was rightly ordered by the Governor that the office of Sajjadanashin being hereditary office and there being only one claimant to succeed to the office of Sajjadanashin no reference to the High Court was necessary. It was further contended that the Governor was the final authority under the scheme of the Act to fill in the office of Sajjadanashin and the Dargah Committee had no right to refer the dispute to the High Court when the Governor did not consider it necessary. It was also contended that the Dargah Committee was only a recommendatory body and it had not power to disagree with the view taken by the Governor. Reliance in this connection is placed on Nagaur Central Co operative Bank Ltd. vs. Kana Ram (1). It was also contended that under sec 13(3) of the Act a reference can only be made by the Dargah Committee after consultation with the Governor. The words 'in consultation' when read in the context of sub-secs. (1) and (2) of sec. 13 clearly shows that the consultation with the Governor was a condition precedent and when the Governor had taken the view that there was no scope for making a reference to the High Court, the Dargah Committee had no right to take a different view and make a reference under sub-sec. (3) of sec, 13 to the High Court. Reliance is placed on Chandra Mohan vs. State of Uttar Pradesh (21. It was also contended that the office of Sajjadanashin was a hereditary office and was governed by law of primogeniture. None of the other applicants were claiming succession to the office of Sajjadanashin as being the nearest heir of Syed Ilmuddin the last Sajjadanashin and as regards the controversy between Syed Saulat Hussain and Zain-ul-Abdin the controversy has been decided by the High Court in its decision dated March 7, 1980, while deciding the Special Appeal.
Mr. Abhay Kumar Bhandari, appearing for Syed Saulat Hussain has contended that his client has filed an appeal before the Hon'ble Supreme Court against the decision of the Division Bench of this Court dated March 7, 1980. The Hon'ble Supreme Court has admitted the petition for Special Leave to Appeal on April 1, 1980, and has issued a notice to the respondents to show cause why special leave be not granted and on stay application filed by his client alon]g with the petition for special leave to appeal, the Supreme Court has passed an order staying the dispossession of the petitioner/appellant Syed Saulat Hussain from the haveli Diwan Sahib (Dargah Bazar, Ajmer) and it is thus contended that the reference application may be kept pending till the final disposal of the appeal by the Hon'ble Supreme Court and should not be decided on merits.
Mr. Jatan Chand, appearing on behalf of Dargah Committee and Mr. Panwar appearing on behalf of one of the claimants have taken a common stand that the language of sub section (3) of Section 13 of the Act is quite clear and according to which where more persons than one claimed to succeed to the office of Sajjadanashin, the Committee is bound to refer the dispute to the High Court and the High Court should decided the merits of each individual applicant after taking such evidence as it considers necessary and then communicate its decision to the Committee which shall further act in accordance with the provisions of sub-section (4) of Section 13 of the Act. It was further contended that the provision contained in Section 21 of the Act, which lays down: "The person holding the office of Sajjadanashin immediately before the commencement of this Act, shall, on and from such commencement, continue to hold that office subject to the other provisions of this Act and to the final decision of in the suit relating to that office which is pending on such commencement and to which the said person is a party" did not come into operation after the death of Syed Ilmuddin. Sec. 13 should be given full effect and the office of Sajjadanashin having fallen vacant after the death of Syed Ilmuddin, and the Committee having invited applications after publishing a notice as required under sub-section (1) of Section 13, there was no option left with the Committee except to have referred the dispute to the High Court under sub-section (3) of Section 13 when there were 11 applicants. It was also contended that sub-section (3) of sec. 13 only requires consultation with the Governor, before referring the matter to the High Court and in the present case the Committee had fulfilled the requirement of consulting the Governor but the Committee was not bound to accept the view taken by the Governor and was perfectly within its jurisdiction to have made a reference to the High Court for deciding the claim of all the applicants on merits.
We have given our earnest consideration to the arguments advanced by all the learned counsel and have carefully perused the record. It would be pertinent to point out that this litigation for succeeding to the office of Sajjadanashin commenced as early as in 1948 between Syed Ilmuddin, who is now represented by Syed Zain-ul Abdin and Hakim Inayat Hussain who is now represented by Syed Saulat Hussain. There is no dispute that the necessity for filing a suit by Syed Ilmuddin only arose on account of the fact that the last Sajjadanashin Diwan Syed Alley Rasool Ali Khan migrated to Pakistan in September, 1947 and the office was occupied by Hakim Inayat Hussain. The claimants, who have now come forward, never raised any finger right from 1947 when Diwan Syed Alley Rasool Ali Khan migrated to Pakistan in September, 1947, till December 11, 1976, when the notice was published in the Gazette of India by the Dargah Committee inviting applications for submitting claims to the office of Sajjadanashin having fallen vacant in view of the death of Syed Ilmuddin. This clearly shows that apart from other factors which we would presently consider, the claim of applicants other than the two sets of parties which are fighting this litigation right from 1948, has become totally stale and has no legs to stand. The Dargah Khwaja Sahib Act, 1955, received the assent of the President on 14th October, 1955. Admittedly at that time the suit between Syed Ilmuddin and Hakim Inayat Hussain was pending and when this Act was passed, an appeal was pending for decision by Hon'ble the Supreme Court against the decision of the Judicial Commissioner, Ajmer, dated November 17, 1953. Section 13 of the Act reads as under: "S.13-(l) As soon as the office of the Sajjadanashin falls vacant, the Committee shall, with the previous approval of the Chief Commissioner, make such interim arrangements for the performance of the function of the Sajjadanashin as it may think fit, and immediately thereafter publish a notice in such form and manner as may be determined by the Committee, inviting applications within one month of such publication from persons claiming to succeed to that office. (2)-Where only one person claims to succeed to the office of the Sajjadanashin and the Committee is satisfied as to his right to succeed, it shall, with the previous approval of the Chief Commissioner, pass an order in writing according recognition as Sajjadanashin to such person. (3)-Where more persons than one claim to succeed to the office of the Sajjadanashin, the Committee, shall, after consultation with the Chief Commissioner, refer the dispute to the Judicial Commissioner of Ajmer for a decision regarding the claim to succeed to that office and the Judicial Comissioner, after taking such evidence as he considers necessary and after giving an opportunity to the claimants to be heard in respect of their claims, shall communicate his decision to the Committee. (4)-The Committee, on the receipt of the decision shall, with the previous approval of the Chief Commissioner, pass an order in writing in accordance with such decision declaring the person found entitled to succeed to the office of the Sajjadanashin and according recognition as Sajjadanashin to such person. (5)-An order passed by the Committee under sub-section (2) or sub-sec. (4) shall be final and shall not be questioned in any Court." The Legislature was fully aware about the suit relating to the office of Sajjadanashin pending between Syed Ilmuddin and Hakim Inayat Hussain and for this purpose laid down a specific provision under section 21 of the Act which had already been reproduced above. It is also important to observe that Hakim Inayat Hussain had died on September 25, 1959 when the appeal was pending before the Supreme Court and after his death his legal representatives were allowed to be impleaded as parties to the lis. Admittedly, the Khwaja Dargah Sahib Act, 1955, had come into force on that date as well and if the contention now sought to be advanced by Mr. Jatan Chand on behalf of the Dargah Committee and Mr. Panwar on behalf of the applicants has to be accepted, the office of Sajjadanashin had fallen vacant on the death of Hakim Inayat Hussain also and the result would have been to resort to the provisions of Section 13 of the Act at that stage and the proceedings in the suit should have come to an end. However, the Hon'ble Supreme Court itself permitted that the legal representatives of Inayat Hussain be impleaded as parties to the litigation and remanded the case for being decided on merits by the trial Court. This also strengthens the view taken b> us that till the controversy between the two sets of parties namely Syed Ilmuddin and Hakim Inayat Hussain or between their legal representatives claiming succession through them, is finally concluded by the Supreme Court, it could not be said that the office of Sajjadanashin has fallen vacant under sec. 13 of the Act on account of any one of them or their legal representatives dying during the litigation. The provisions of Section 21 of the Act apply to the suit filed in 1948 by Syed Ilmuddin against Hakim Inayat Hussain and these provisions will continue to hold good in respect of their legal representatives also Syed Ilmuddin was appointed as Sajjadanashin by the Governor in view of the decision given in his favour by a learned Single Judge of this Court and at that stage also none of the applicants raised any controversy and now if he expired during the pendency of this litigation, in our view his legal heir can be considered as a person to be appointed Sajjadanashin, in view of the fact that the office of the Sajjadanashin is a hereditary one which is now concluded by a decision of the Privy Council in Asrar Ahmed vs. Dargah Committee, Ajmer (3) and a decision of the Supreme Court in Dargah Committee, Ajmer vs. Syed Hussain Ali (4). Their Lordships of the Supreme Court, while referring to the above Privy Council case have observed: "In the course of his judgment Lord Simunds observed that it was not disputed that in the reign of Emperor Shahejhan the post of Mutawalli was separated from that of Sajjadanashin and had become a Government appointment, whereas the Sajjadanashin remained and continued to be the hereditary descendant of the saint." The applicants are not claiming the office of Sajjadanashin through Shri Ilmuddin the last holder of the office of the Sajjadanashin. The Governor has rightly taken the view that it was Zain-ul-Abdin alone who was claiming succession to the office of Sajjadanashin through Shri Ilmuddin as such there was no scope for making a reference to the High Court. It is needlesss to observe that so far as the controversy between Syed Saulat Hussain and Syed Zain-ul-Abdin is concerned it shall now be decided by Hon'ble the Supreme Court in the appeal pending before it against the judgment of this Court dated March 7, 1980.
(3.) THE Division Bench while deciding the special appeal in its judgment dated March 7, 1980, has also held that on a plain reading of Section 21 it is clear that the person holding the office of Sajjadanashin immediately before the commencement of this Act shall on and from such commencement continue to hold that office subject to other provisions of this Act and to the final decision in the suit relating to that office which is pending on such commencement. It was further held that the Act came into force in 1955. Hakim Inayat Hussain died on September 25,1959, when the appeal was pending before the Supreme Court. THE Supreme Court after the death of Hakim Inayat Hussain directed that the legal representatives of Hakim Inayat Hussain be impleaded as parties to the lis. Now if Section 13 were applicable, the suit would have come to an end with the death of Hakim Inayat Hussain and appointment of his son Syed Saulat Hussain as Sajjadanashin. But it is important to remember that appointment of Saulat Hussain was only an interim arrangement and that is why the Supreme Court remanded the case and gave a direction to proceed with the suit. Besides that Section 13 is a general provision dealing with the succession to the office of Sajjadanashin whereas Section 21 is a special provision to deal with the situation where a suit relating to the office is pending on the commencement of the Act and the person holding the office of Sajjadanashin immediately before the commencement of the Act is a party to it. THE Court, therefore, held that the suit was governed by Section 21 of the Act and not Section 13 of the Act. Thus, there is no escape from the conclusion that this reference application is not maintainable under sub-section (3) of Section 13 of the Act.
In view of the conclusions arrived at, there is no merit in the reference and the same is rejected.;