K.N. Seth, J. - (1.) The writ petition and the connected criminal cases may be conveniently dealt with and disposed of by a common judgment as they all relate to prohibitory orders passed under Section 144 of the Code of Criminal Procedure (Act No. V of 1898) on the occasions of Barawafat, Chehellum, Pachasa etc. on account of ten on created between the Sliia and Sunni communities of Mohalla Doshipura, Varanasi City. Detailed facts have been set out and the relevant documents brought on record by the parties in the writ petition.
(2.) The case set up by the petitioners is that in Mohalla Doshipura a Baradari, also known as Imambara, was constructed by the Shia community in the year 1898 on plot Nos. 247/1130. A number of vacant plots (plot Nos. 245, 246, 246/1134, 247, 248/23/72, 602/1133, 603 and 702) situate around the Baradari are appurtenant to the Baradari. The Shias have been celebrating the religious functions and observances such as holding Majlis, recitation of Nohas, Marsia, doing Matam, taking out procession with Tabut, Tazia, Alams, Zuljinha and other paraphernalia of such observance to commemorate the martyrdom of Hazrat Imama Husain. The congregation assembles at the Baradari and is also accommodated on the plots appurtenant to it. The Baradari and the adjoining plots have been declared to be Shila Waqf property and have been cued for their religious observances since time immemorial openly and continuously as of right- The Sunnis have repeatedly tried to assert their rights over the plots in dispute. They attempted to encroach upon the plots and asserted that part of the plots in dispute was a graveyard. This resulted in a suit by the Maharaja of Banaras, being suit No. 424 of 1931 in the Court of the Additional Munsif, Banaras. Another Suit No. 232 of 1934, Fetehullah and others v. Nazir Husain and others was filed by the Sunnis against the Shias claiming certain rights over the properties in dispute. The suit was decided in favour of the Shias by the lower appellate court and the claim of the Sunnis in respect of the properties in dispute was negatived. This judgment was affirmed in a second appeal by this Court. The Sunnis did not desist in their attempt to interfere with the rights of the Shias with respect to the properties in dispute. Prohibitory orders had to be passed against them although some times the observance of Fateha was permitted on the existing graves in one of the plots. In December, 1956 a Gazette notification was issued under Section 5 of the U.P. Muslim Waqfs Act (Act No. 13 of 1936) declaring the Baradari and the appurtenant plots as Shia Waqf. Sanads were also issued by the Shia Central Board of Waqfs in respect of the aforesaid properties.
(3.) The case set up by opposite party No. 3, representing the Sunni community, that all the plots in dispute, except plot Nos. 246, 247, 602/1133 and 248, belonged to Maharaja of Banaras. Plot No. 246 was a mosque exclusively built by the Sunnis while plot No. 602/1133 was a grave yard of Sunni Musalmans on which they celebrated Barawafat, Fatehas, Quran Khani since time immemorial. It has been asserted that the Maharaja of Banaras executed a registered lease deed in 1997 in favour of Sheikh Abdul Majid, who was a Suni. Musalman. Plot No. 247 and 248 contained constructions of Sunni Musalmans. Although plots No. 603 and 245 were under the proprietorship of Maharaja of Banaras but the Sunnis have a right to hold various functions on these plots as they have been performing Quran Khani, Fatehas, Urs and Chadar over these plots. The claim of the Shias that they have been celebrating their religious functions or observances over all the plots or Baradari was baseless. In fact all the plots were appurtenant to the mosque constructed by the Sunnis and the Shias have no right or interest in any of these plots. The constructions existing on the plots were made by the Sunnis for preforming their religious functions with their own funds and money. It has further been alleged that the Shias do not perform any functions during the month of Babi-ul-Awwal. They observe mourning during the month of Moharram only which is the month of Martyrdom of Hazrat Imam Hussain. With regard to the Baradari it has been alleged that it was a public property and there could be no ownership of any particular community or faith but it belonged to the entire Muslim community. It is alleged that Barawafat is considered by the Sunn is as the date of birth and death of Prophet Mohammad which fell on the 12th of Rabi-ul-Awwal and the Sunnis treat it as a date of joy also as on that day the Prophet departed from the worldly abode. The mourning period of Shias is confined during the month of Moharram. It has further been denied that Baradari or the adjoining plots have even been used by the Shia community or that they have ever been Shia Waqf. The clam of the Shias that the mosque belonged to them or there was any Zanana Imam Bara or Sabil of Shias as was incorrect belonged to them or there was any Zanana Imam Bara or Sabil of Shias was incorrect. It was asserted that the Sunn's have been burying their dead as a matter of right since time immemorial. With regard to suit No. 424 of 1931 it was alleged that it was not a representative suit but was against Shamshuddin and five others for a declaration that plot No. 602/1133 was owned by the Maharaja of Banaras and the defendants interfered with his right asserting it to be a grave yard and also for removal of graves. The decision in that suit was not binding on the Sunni Musalmans. Similarly suit No. 232 of 1934 was not a representative suit and the decision in that suit did not bind the Sunnis. With regard to the Gazette notification under Section 5 of the U.P. Muslim Waqfs Act (Act No. 13 of 1936) the stand taken by the opposite party is that the said notification does not relate to any plot in dispute and does not specify the properties involved in the present litigation. In fact all the plots in dispute and the mosque and the Baradari have been registered as Sunni Waqf under the U.P. Muslim Waqfs Act (Act No. 16 of 1960) and a certificate to that effect has been issued by the Sunni Central Board of Waqfs. The right of the Sunni Musalmans to take out Chadar procession was recognised as far back as 1949. Reliance has also been placed on various orders passed by the City Magistrate since 1971.;