JAIN, J. - (1.) THESE are defendants' appeals against the order dt. 14. 11. 91 passed by the learned District Judge, Udaipur whereby he has allowed the plaintiffs' application dt. 20. 5. 85 for grant of temporary injunction under 0. 39 Rule 1 and 2 read with Sec. 151 CPC and 0. 41 R. l CPC for appointment of Receiver in a suit for declaration, possession and injunction.
(2.) THE relevant history which is necessary to understand the controversy is that the parties belong to Dawoodi Bohra Community of 'shia' sect. THE appellants are progressive Jamat. THE parties to the suit are 'shia' Muslims in contract to 'shunni' Muslims. 'shia' are those Muslims who after the death of prophet Mohammed Saheb attached themselves with Ali, the son-in-law of the prophet, considering him to be the successor of the prophet Mohammed Saheb both in religious and spiritual matters, whereas 'sunni' Muslims believes that Abu Baker, the father-in-law of the prophet is the successor of the prophet Mohammed Saheb. Further 'shia' Muslims are divided into two sects known as 'ismilia' and 'ishna Asharia'. Dawoodi Bohras belongs to 'ismilia'. THEse sects are governed by their own law. THE parties to the suit are Dawoodi Bohras and according to the plaintiff their spiritual and religious leader is the present plaintiff His Holiness Dr. Syedna Mohammed Barharuddin Saheb, who is 52nd Dai-ul-Mutlaq of the Dawoodi Bohra Community. This community is from 'shia' sect holding common belief that the prophet Mohammed Saheb is the only one and only God. He (prophet) reveals Holi Book 'qurran' and Ali the son-in-law succeeded him. In the line of Imam each of whom in turn was appointed by his immediate predecessor. Dawoodi Bohra Ismilia sect of Shia and Dai is known as Dai-ul-Mutlaq and Dai is governed by God. Dai though appointed and nominated by Imam have all powers of Imam in religious and spiritual sense. All the members of Dawoodi Bohras have to administer on oath of allegiance to Dai-ul-Mutlaq. Dai-ul-Mutlaq is not only a spiritual or religious head in name but in real sense. He is the sole trustee of the property of the Dawoodi Bohra having sole right of control and management over community and its property. Dai-ul-Mutlaq is also known as Mullaji. The plaintiffs filed a suit on 11/12. 2. 85, in the court of learned District Judge, Udaipur for declaration, possession and permanent injunction with the allegation that the following four suit disputed mosques along with other properties at Udaipur; (1) Moiyatpura Mosque, Bohrawadi, Udaipur, (ii) Vazirpura Mosque, Bohrawadi, Udaipur (iii) Rasoolpura Mosque, Gulabwadi, Udaipur and (iv) Khanpura, Chhoti Bohrawadi, Udaipur are the properties of the community. The plaintiff also moved application before the City Magistrate for repairs. They also filed application for temporary injunction and for appointment of receiver alongwith the suit. An exparte order was passed against the appellant to the effect that the appellant should not carry out repairs and status quo be maintained. This order was also communicated to the District Magistrate and Superintendent of Police of the area. The plaintiffs case is that in Udaipur Dai-ul-Mutlaq appointed Amil from time to time who has the authority from Dai-ul-Mutlaq to lead 'imamat' and 'jamat Namaz' and also gave permission to lead 'imamat' prayers and other religious functions, and ceremonies in the mosque and to manage and administer the same for and on behalf of the Dai-ul-Mutlaq or in other words it can be said that the permission or authority or 'razza' from Dai to pray or special prayers and ceremony etc. are to be done by such nominated person. The four mosques in dispute are managed and maintained by the representative or the nominated persons of Dai. The plaintiffs case further is that in the year 1973 a section of Dawoodi Bohras including the defendants rebelled against the spiritual and religious authority of Dai-ul-Mutlaq and they have formed Bohra Youth Association and later on they formed their separate organisation Dawoodi Bohra Zamat, Udaipur. Bohra Youth Members had entered in the mosques forcibly in the year 1973 and they are managing and administering the mosques and other religious prayers by their Pesh Imam and do not allow the plaintiffs or their nominated person to do prayers or other religious functions under their amil Pesh Imam and the followers of the plaintiff Dawoodi Bohras are doing their prayers and other religious functions at a separate place and thereby hurt the spiritual feelings of the Dawoodi Bohras of which the plaintiff His Holiness Dr. Syedna Saheb is the religious and spiritual leader and the sole trustee of all property including the disputed four mosques. It is also stated that in or about 1982, the said Saboonwala, Rasanwala intimated their Amil, that the private place would no longer be made available. The appellants denied the averments and alleged that there is no need of 'razza' and claimed that all the four mosques belong to Bohra Youth and filed reply in three seets dt. 1. 11. 85 (for defendants no. 1 to 6, 9 to 20 & 24 to 30), dt. 2. 1. 86 (defendants no. 21, 22 and & 23) and dt. 15. 1. 86 ( defendant no. 7) and also filed documents containing list of documents on 31. 3. 86 and 4. 4. 86. A rejoinder was also filed by the plaintiff on 24. 10. 86. Defendants have also filed reply to the application dt. 20. 5. 85 on 31. 8. 85. It was alleged that after coming into force of the Waqf Act, 1954, the Waqf Board is the only institution for the management of the property including the mosques and Dr. Syedna Saheb has no right to manage them and the plaintiffs are not the Mutwalli under the said Act and the same may be dismissed. It was also alleged that the mosques are under the control and management of the defendants and all prayers and other religious functions as well as ceremonies are being performed by the Pesh Imam appointed by Bohra Zamat and the court on that basis maintained status-quo as it existed on the date of the suit. It was further submitted that there is no prima facie case and balance of convenience lies in favour of the defendants and no irreparable loss has been caused to the plaintiffs. It was also submitted that the relief prayed for is wholly misconceived and in any way not permissible. It is important to note that in the year 1982, plaintiff in a representative capacity filed a suit (No. 69/82) against the defendants in their representative capacity regarding these mosques and prayed for injunction. An application was filed for temporary injunction (No. 53/82) along with the suit, the learned District Judge, Udaipur after hearing both the parties dismissed the application for temporary injunction on 31. 10. 88. An appeal was preferred to this Court which was registered as Civil Misc. Appeal No. 5/84 and came to be decided on 22. 5. 84 reported in Gulam Abas vs. Iqbal (1) and this appeal on consent was partly allowed. It is also pertinent to note that after the judgment of this Court referred above, a criminal proceeding u/s. 145 Cr. P. C. was initiated between the parties and in that criminal proceeding in case no. 365/84 the City Magistrate appointed 'dy. S. P. ' as Receiver u/s. 145 Cr. P. C. for 'moiyatpura mosque. ' The Receiver continued upto date of impugned order dt. 14. 11. 91 passed by the learned Distt. Judge.
(3.) BOTH the parties in support of their respective contentions referred number of documents, affidavits relevant text books, written submissions and case-law. The learned District Judge after hearing the arguments accepted the application and granted temporary injunction and also appointed Receiver on 14. 11. 91, however, he has himself stayed the operation of impugned order and directed to maintain status quo till 30. 11. 91. Aggrieved by the aforesaid order dt. 14. 11. 91 of the learned court below, the defendants-appellants filed two separate appeals; one against injunction order and appointment of Receiver and the other against the order of repair work. These appeals have been filed in this Court on 23. 11. 91, and as agreed by both the parties, both the miscellaneous appeals arising out of the same order are finally heard at the admission stage and decided by this common judgment. Mr. L. R. Mehta, learned counsel for the appellants has contended that the defendants have specifically denied the plaintiffs' case. He has further submitted that under the Shia Muslim Law, there is no question of 'razza' from Dai. He has submitted that though Dai is sole trustee but only in ideal sense. He has further submitted that the dispute is an old one as is apparent from the documents annexed with the written statement but the learned Distt. Judge without considering them passed order and erred in granting mandatory injunction and appointing Receiver which is based on the assumption that the power of general management and control of all mosques of Dawoodi Bohra community vests in the plaintiff on the basis of earlier judgment, more so when there is no prima facie case and the balance of convenience also does not lie in their favour as admittedly plaintiffs are not in possession, therefore, the question of irreparable loss also does not arise. He has further contended that after coming into force of Waqf Act, 1954 all mosque property is governed by the Waqf Board and Mutwalli appointed by the Waqf Board are legal and there is no need for obtaining consent of Dai-ul-Mutlaq or his nominee and the Dai is not the owner of the Waqf property. He has placed reliance on Advocate General of Bombay vs. Yusuf Ali Ibrahim and others (2), Akbarally A. Adamji Peerbhoy and others vs. Mahommedally Adamji Peerbhoy and others (3) and Durgah Committee vs. Hussain Ali (4 ). Mr. Y. H. Muchhala, learned counsel for the plaintiff respondents has supported the order of the learned Distt. Judge and has submitted that law which is to be applied is personal law and each sect is to be governed by its own personal law. The Dawoodi Bohra Community is to be governed by its own personal law. He has also contended that Mullaji is not only a spiritual leader of the Bohra community but also in real sense, he is the real controller of all the property including the disputed mosques and if any prayer is done by or under any person who is not authorised by Dai or his representative that prayer is no prayer in the eye of Shia law. Mr. Muchhala has submitted that Dr. Syedna Saheb is the sole trustee and general supervision vests in him. He has also submitted that on the basis of affidavits and Anjuman's constitution which are on record, entire power has been given to Dai-ul-Mutlaq, these documents clearly show that control and general supervision vests in him and as per the practice and usage, religious tenets without 'razza' nothing can be done in the mosque. He has contended that the appellant has admitted some facts in the earlier suit as such now he cannot change his stand. Mr. Muchhala has further contended that under the Waqf Act, 1954, a Mutwalli can file a suit. He has placed reliance on Deedar Hossain vs. Ranjee Zuhoor OSH, Nissa (5), Perumal Konar vs. Maruthanayagn Nadar (6), Advocate General of Bombay vs. Yusuf Ali Ebrahim and others (supra), Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay (7), M. M. Shahul Hameed vs. Kazi Mohammad Hussain Sahib (8), Wajid Ali Shah vs. Smt. Bada Bibi Naseem (9), Syed Khersha Sajanshah vs. The Bhuj Municipality (10) and text books Mausama Bahar, and Muntaz ul Akhbar. ;