JAIN, J. - (1.) THE plaintiff has filed this regular first appeal under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 31st of January, 1981 passed by the Additional District Judge, No. 1 Jaipur City, in Civil Suit No. 67/1977, whereby the suit of the plaintiff for declaration permanent injunction and possession was dismissed.
(2.) BRIEF facts giving rise to this appeal are that on 13th of December, 1976 the plaintiff filed a suit in the lower court wherein it was prayed that a decree of declaration in favour of the plaintiff be passed declaring him Sajjadanashin and Mutwali of Dargah Hazrat Ziauddin Sahib situated near Moti Katla, outside Chaardarwaja in Jaipur City. A prayer for decree of possession was also made in respect of the properties which are in occupation of the defendants. It was also prayed that the defendants be restrained by a decree of permanent injunction not to interfere in the property of Dargah erected on Khasra Nos. 497 to 503. The plaintiff, in his plaint, pleaded that there is one well known Dargah, namely, Hazrat Mian Ziauddin and the plaintiff is its Sajjadanashin, the defendants are in habit to quarrel with the plaintiff about their rights in the Dargah. The pedigree was given in Para 1 of the plaint. It was pleaded that Jaipur His Highness had gifted Seven bigha of land in Khasra Nos. 497 to 503 in Jaipur City to Hazrat Mian Ziauddin Sahib, for the use of residence and for laying down a garden around. Hazrat Mian Ziauddin Sahib was unmarried and died issueless. On 10th of December, 1906 Hazrat Mohiuddin became Sajjadanashin and he got constructed one Dargah on the said land. Mohiuddin was first Sajjadanashin. However, Mohiuddin was found to be involved in one theft case, therefore, Jaipur His Highness removed him from the post of Sajjadanashin on 23rd of January, 1911 and his brother Kamaluddin was appointed as Sajjadanashin. The Matmi was sanctioned in the name of Kamaluddin vide order dated 4th of December, 1920. Kamaluddin was grand father of the plaintiff. It was further pleaded that Kamaluddin died on 19th of May, 1938 and thereafter there was a dispute on appointment on the post of Sajjadanashin and sanction of Matmi. Thereafter Matmi Rules came into force in 1945 and the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 also came into force. It was also pleaded that the Revenue Board vide its order dated 1st of February, 1974 sanctioned the Matmi of the disputed land in favour of the plaintiff being grandson of Kamaluddin. However, the Revenue Board left open the issue regarding appointment on the post of Sajjadanashin to be decided by the civil court. Therefore, the present suit was filed. The defendant No. 1 filed his written statement wherein it was pleaded that the defendant No. 1 is working as Mutwali of the Dargah since 1938, therefore, the defendant is in possession of Dargah since then. The pedigree as mentioned in Para 1 of the plaint was denied. The another pedigree was mentioned in Para 1 of the written statement. In additional pleas of the written statement it was pleaded that after the death of Kamaluddin in the year 1938, the defendant No. 1 is working as Mutwali of the disputed property and he is in possession of the same. It was also pleaded that after the death of Kamaluddin, his eldest son Aminuddin, the father of the plaintiff, was appointed as Sajjadanashin and he did not object appointment of defendant No. 1 on the post of Mutwali. It was also pleaded that after the death of Aminuddin, the plaintiff filed a civil suit claiming the post and rights of Sajjadanashin, which was dismissed on merits on 7th of September, 1953 against which an appeal was also preferred by the plaintiff but the same was also dismissed by the Rajasthan High Court on 20th of November, 1958, therefore, the principle of res-judicata is applicable in the present case. It was also pleaded that in 1956 the plaintiff filed another suit for sanction of grant of `chiragbatti' and `nazrana' wherein the defendant No. 1 Faqruddin filed an application for impleading him as a party which was allowed by the lower court against which a revision petition was preferred by the plaintiff and the same was also dismissed on 10th of July, 1969, therefore, it was prayed that the suit of the plaintiff be dismissed. The defendant No. 2 Badruddin also filed separate written statement on 4th of January, 1977 wherein contents of the plaint were denied. The pedigree mentioned in Para 1 of the plaint was also denied. The grant of Matmi in the name of Ziauddin was admitted. The appointment of Mohiuddin and thereafter Kamaluddin on the post of Sajjadanashin was admitted. It was also mentioned that against the order of the Revenue Board whereby Matmi has been sanctioned in favour of the plaintiff, the defendant No. 2 has filed a writ petition before the Rajasthan High Court, which is pending. It was also pleaded that the civil Court had already decided an issue about appointment on the post of Sajjadanashin and the suit of the plaintiff in this regard has already been dismissed on 7th of September, 1953. On the basis of pleadings of the parties the learned lower Court framed ten issues on 24th of April, 1978 which have been produced in the judgment of the lower Court.
(3.) IN support of the case, plaintiff Tajuddin examined himself as PW. 1 and produced documentary evidence Exhibit-1 the judgment of the Revenue Board dated 1. 2. 1974, Exhibit-2 the Judgment of the High Court dated 20. 12. 1944, Exhibit -3 the judgment of the Jaipur Chief Court dated 22. 8. 1940, Exhibit-4 the site plan filed with the plaint, Exhibit-5 the map of Jaipur Tehsil, Exhibit 6 & 7 Khasra Girdawri and Exhibit-8 copy of written statement filed by defendant No. 1 in the suit filed by Didar Ali. Defendants examined DW-1 Faqruddin and DW 2 Ladli Prasad, and produced documentary evidence Exhibit A-1 the judgment of the District Judge, Jaipur dated 18. 9. 1946, Exhibit A-2 the judgment of the District Judge dated 7. 9. 1953, Exhibit A-3 the judgment of the Rajasthan High Court dated 20. 11. 1958, Exhibit A-4 the order of the Additional Civil Judge dated 23. 12. 1968, Exhibit A-5 application filed by Tajuddin on 13. 9. 1969, Exhibit A-6 the judgment of the Rajasthan High Court dated 10. 7. 1969 in Civil Revision, Exhibit A-7 the order dated 26. 7. 1900 of the Mahakma Diwani Garbi, Exhibit A-8 the sale deed of Samvat Year 1854 executed by Hari Narain, Exhibit A-9 the sale deed in favour of Dargah Executed by Man Singh Tanwar, Exhibit A-10 copy of `patta' by the State Government issued in Samvat 1856, Exhibit A-11 copy of map. The learned lower Court, vide its impugned judgment and decree dated 31st of January, 1981, decided issue Nos. 1, 2, 4, 5, 6, 7 and 9 in favour of the defendant and against the plaintiff. The issue Nos. 3 and 8 were decided in favour of the plaintiff and against the defendants. Consequently, in view of the finding in respect of issue Nos. 1, 2, 4 and 5 in favour of the defendants, the suit of the plaintiff was dismissed. Under these circumstances the present appeal has been preferred on behalf of the plaintiff. ;