Mootham, C.J. - (1.) THIS is a special appeal against an order of Mr. Justice Dayal allowing a petition filed u/Art. 226 of the Constitution and issuing a writ of mandamus.
(2.) A bazar is held in village Ajhwa pargana Kara, District Allahabad twice every week on Sundays and Wednesdays and all kinds of commodities are sold in that bazar. The zamindars of the village used to realise tahbazari dues from all persons who brought wares for sale in the bazar. The zamindari rights in the village and the bazar originally vested in one Syed Abdul Hasan who made a waqf of his rights in the year 1919 and became the first mutwalli of the waqf. After his death his son Mohammad Ibrahim Hasan became the mutwalli. In 1952 he filed a writ petition .(Civil Miscellaneous Writ No. 433 of 1952) in this Court in which he alleged that as a result of the coming into force of the Zamindari Abolition and Land Reforms Act the State and the District Board of Allahabad were trying to interfere with his possession over the bazar and the realization of the dues from the shop -keepers who brought their things for sale there. He prayed for a writ of mandamus requiring the Respondents to the petition not to interfere with his rights. The writ petition was admitted and an interim injunction was issued restraining the Respondents to the petition from interfering with Mohammad Ibrahim Hasan's possession over the bazar and his realisation of the dues. After the filing of the writ petition Mohammad Ibrahim Hasan died on 18 -12 -1953. Syed Tahir Husain the present Respondent No. applied to be allowed to continue the petition as heir and legal representative of Mohammad Ibrahim Hasan on the ground that he had succeeded to his rights and had become the mutwalli of the waqf in place of the deceased. He was, however, directed by an order dated 13th August 1954 to file a fresh writ petition and the writ petition filed by Mohammad Ibrahim Hasain was declared to have abated. The Respondent No. I then filed the writ petition out of which the present appeal has arisen. In that petition he impleaded the State as Respondent No. 1. the Collector of Allahabad, as Respondent No. 2, the District Board of Allahabad as Respondent No. 3 and three persons Jawahar Lal, Niranjan Lal and Dwarka Prasad as Respondents Nos. 4, 5 and 6. He alleged in this petition that in accordance with the waqf deed he had become the mutwalli of the waqf after the death of Mohammad Ibrahim Hasan, that the bazar was held on certain plots of village Ajhwa mentioned in the petition which formed the sir, Khudkasht and groves of the waqf of which he was the mutwalli, that he and his predecessors had continued in actual physical possession of the bazar, trees, buildings, chabutras etc. for the last eighteen years and that he had been realising does from the shop -keepers since time immemorial. He further alleged that after the coming into force of the ZA and LR Act the Collector of Allahabad, Respondent No. 2, and the District Board of the district, Respondent No. 3, wanted to dispossess, him from the bazar and to take possession of it and that the District Board had auctioned the right to realise the bazar dues in favour of Respondents Nos. 4, 5 and 6. He said that he was entitled to continue in possession of the bazar and that the acts of the Respondents amounted to an infringement of his fundamental rights. He, therefore, claimed "a writ of mandamus, order, direction or a writ of any suitable nature restraining their subordinates, agents and employees and licensees from making collections and realising the dues of the market known as Naya Nazirganj, village Ajhuwa pargana Kara district Allahabad and from interfering with the possession of the applicant over the aforesaid market, its management and realization of dues or grant such further and other relief as it may deem fit." An affidavit was filed in support of the petition. All the Respondents were duly served with notices in respect of the petition, but none of them appeared at the time of hearing to oppose it. No counter affidavit was filed contesting the allegations that had been made in the affidavit filed in support of the petition. The learned Judge who was hearing the petition therefore accepted the case put forward in it and ordered on 28 -3 -1955 that a writ of mandamus be issued as desired. Only one of the Respondents to the petition viz. the District Board of Allahabad, has now come up in appeal. The original Petitioner has been impleaded as Respondent No. 1 to this appeal and the other Respondents to the petition have been impleaded as proforma Respondents. In the memorandum of appeal as it was originally filed only three grounds were put forward. It was urged on behalf of the Appellant that the learned Judge was not justified in granting the petition and issuing the writ of mandamus because the Petitioner had no subsisting right to maintain the petition, because the questions raised were questions of fact which could be decided only in a regular suit, and because the earlier petition of Mohammad Ibrahim Hasan having been dismissed a fresh petition was not maintainable. Subsequently the Appellant was allowed to amend his petition by adding the additional grounds that on the materials before the learned Judge no writ of mandamus could or should have issued, that the Petitioner was guilty of suppressing material facts, that the affidavit filed in support of the petition had not been properly sworn, that the necessary evidence had not been produced and that as the writ petition had been wrongly and prematurely listed for hearing the Appellant was entitled to have an opportunity to contest it on merits.
(3.) THE other Respondents submitted to the decision of the writ petition as they themselves did not prefer any appeal against it. They were however represented by counsel in this appeal and lent their support to the case of the Appellant.;