N. M. KASLIWAL, J. - (1.) BRIEF facts leading to this revision are that there is a famous Dargah Hazrat Qwaza Haji Mohammed Naramuddin at Fatehpur Shekhawati (hereinafter referred to as 'the Dargah')- Haji Nazamuddin was the founder and after his death his eldest son Nasaruddin became the Sejjadanasin and Mutwalli of the Dargah. After the death of Nasaruddin Najamuddin became second Sejjadanasin while he was a minor. Gulam Sarwar became the third Sejjadanasin and he also framed a scheme (Japta) in the year 1932 for the succession of the office of Sejjadanasin and Mutwalli in the Dargah. After the death of Gulam Sarwar the fourth Sejjadanasin was Gulam Nurul Hasan. According to Peer Gulam Naseer, who filed the present suit, he was nominated and appointed as Sejjadanasin during the life time of Gulam Nurul Hasan. According to the plaintiff, he was the daughter's son of Gulam Nurul Hasan and he was nominated and declared the successor of Gulam Nurul Hasan on September 12, 1979 by a will, which was also registered on November 16, 1979. Gulam Nurul Hasan died on August 3, 1982. The present suit has been filed on August 6, 1982 by Gulam Nasir claiming himself as a Sajjadanasin and Mutwalli of the Dargah. The plaintiff being a minor has filed the suit through his natural father and next friend Shri Moujjam Ali. According to the plaintiff, he is a regularly appointed Sajjadanasin and Mutwalli of the Dargah and the defendant-non-petitioners were unlawfully interfering in his due discharge of his duties as Sajjadanasin. The plaintiff thus filed the present suit for injunction restraining the defendant-non-petitioners or their agents from entering the Dargah and not to disturb him in discharging his functions as Sajjadanasir. It has also been averred in the plaint that there were disputes among the successors of the founder of the wakf and the same were decided by judgment dated September 21, 1929 of the Chief Court of Jaipur State. The Wakf Act, 1954 came into force in Rajasthan and the Dargah was registered in 1967 with the Rajasthan Board of Muslim Wakf. Alongwith the suit an application for temporary injunction under Order 39 Rules 1 and 2 C. P. C. was also filed. Learned Munsiff by order dated December 3, 1982 granted an injunction in favour of the plaintiff and restrained the defendant-non-petitioners not to interfere in the religious duties to be performed by the plaintiff-petitioner like sitting over Gaddi, recite 'kubbalis', to put 'chadar' etc. It was further directed that Rajasthan Board of Muslim Wakf will keep superintendence over the wakf property and wi (i also manage the same and will also furnish the statements of income and expenditure till the plaintiff becomes major or the final determination of the suit, which ever is earlier. Such accounts would be submitted annually or as and when demanded by the court. The defendants aggrieved against the aforesaid order filed an appeal. The learned Civil Judge, Neem-ka-thana by order dated August 28, 1986 allowed the appeal and set aside the order dated December 3, 1982 passed by the Munsif, Fatehpur. The plaintiff aggrieved against the order of the Civil Judge has filed the present revision.
(2.) IT may be mentioned at this stage that the founder of the wakf did not lay down any principles to guide succession to the seat of Sajjadanasin in the Dargah. The Code (Japta) of 1932 was laid down by Peer Gulam Sarwar, who was father of non-petitioners Peer Gulam Jelanee, Abrar Ahmed, Waziru-ddin, Mohammed Arifam Gulam Mohiddin and also the father of the last Sajjadanasin Shri Nurul Hasan. Now, Peer Gulam Jelanee is claiming the right of Sajjadanasin on the ground of being the real brother of last Sajjadanasin Gulam Nurul Hasan. On the other hand, the plaintiff is the daughter's son of Gulam Nural Hasan and is claiming the right of Sajjadanasin on account of being nominated and appointed as a Sajjadanasin by the last Sajjadanasin namely Gulam Nurual Hasan. The plaintiff is claiming the right on the basis of a written document dated September, 12, 1979 and registered on November 16, 1979 by which he was nominated as Sajjadanasin to succeed after Gulam Nurul Hasan. Two important 'urs' are performed in the Dargah every year and the controversy arose after the death of Gulam Nurul Hasan on August 3, 1982. It may be mentioned at this stage that the present suit was filed on August 6, 1982 and an application for temporary injunction was also filed on the same day. An expert order was passed in favour of the plaintiff and the same was confirmed finally by the trial Court by order dated December 3, 1982. The defendants had filed an appeal and the plaintiff filed cross-objections and the learned Civil Judge by judgment dated August 28, 1986 allowed the appeal filed by the defendants and as a result of which the application for temporary injunction filed by the plaintiff came to be dismissed. The present revision was filed by the plaintiff on September 2, 1986 and Mrs. Mohini Kapur, J. on September 11, 1986 passed an order for maintaining status-quo by both the parties during the pendency of the revision petition. It may also be mentioned that during the pendency of this litigation a committee had been appointed by the Wakf Board for the management of the Dargah and the Sub-Divisional Magistrate, Fatehpur has been made the convener of the committee and at the time of passing the order of status quo on September 11, 1986, the Sub-Divisional Magistrate had already taken charge. The case of the plaintiff further is that Nurul Hasan, the last Sajjadanasin appointed the plaintiff as his successor on September 12, 1979, Shri Nurul Hasan declared that during his life time and after his death Gulam Naseer plaintiff will sit on Gaddi and perform all the rites and ceremonies. It was further declared that all rights of previous Sajjadanasin shall remain conferred on Gulam Naseer. In a letter dated October 27, 1980 of Secretary Wakf Management Committee of the Dargah in question, sent to Wakf Board, it was stated that on September 12, 1979 in the evening at 6 p m. at the time of URS Gulam Naseer aged 3 years was appointed as Sajjadanasin to succeed after Nurul Hasan It was done in this manner that according to the usage after performing the ceremony of Dastoor Bandhi from the hands of Syed Zainul Abdeen Ali Khan, Dewan Garib Nawaz Ajmer Sharif, Dastoor Bandhi was done by Nurul Hasan. Thousands of Murids and disciples local Mohalla members and members of different Mohallas of Fatehpur, Peer Zadas of Jhun-jhunu Sadar of Wakf Committee and members and office bearers of Wakf Committee performed Dastoor Bandhis and presented Nazars. Nurul Hasan Saijadanasin and Mutwalli conferred Khilafat on Gulam Naseer by doing 'bait' on the hand. It was declared that Gulam Naseer will have all those rights which have remained with the previous Sajjadanasin and one who will be Sajjadanasin will also be Mutwalli of this Dargah. As already mentioned above Gulam Nurul Hasan died on August 3, 1982 and on third day i. e. on August 5, 1982 Gulam Jelanee one of the defendant tried to usurp the office of Sajjadanasin. Moujjam Ali, the father of the present plaintiff, filed an application to the Sub-Divisional Magistrate, Fatehpur. The Sub-Divisional Magistrate, Fatehpur on the same day passed an expert order under Section 144, Cr. P. C It was mentioned in the order that 'urs' were going to start from August 6, 1982. Gulam Jelanee and others did not want Naseer to sit on 'gaddi' and were bent upon to create disturbance. It was further mentioned in the order that a will of Nurul Hasan had been filed by the petitioner in his support. Non-petitioners wanted to succeed to the office of Sajjadanasin. By the order under Section 144, Cr. P. C. , they were warned that till they obtain any legal decision in their favour and if already obtained then to produce it and because after the death of Nurul Hasan there was a dispute regarding succession to the office of Sajjadanasin and there was a danger of disturbance of public order, it was ordered that the non-petitioners should not interfere nor make any attempt nor give any advice restraining or disturbing Gulam Naseer in taking part in any ceremony. This order was passed expert on the application filed by Mouzzam Ali. On the same day in the evening Gulam Jelanee appeared and submitted an application to accept him as Sajjadanasin of the Dargah in question, The Sub-Divisional Magistrate rejected the application filed by Gulam Jelanee in the absence of any order in this regard by a competent Court in his favour. The Sub-Divisional Magistrate again on August 6, 1982, made a clarification that any declaration by Gulam Jelanee that he was a Sajjadanasin was illegal but he was allowed to continue to work as convener of the managing committee appointed by the Wakf Board. It was further made clear that Gulam Naseer, who had been declared successor by Nurul Hasan will not be interfered in the performance of any rites or ceremonies or other religious acts in the Dargah. It may also be mentioned that the order appointing Gulam Jelanee as one of the conveners of the managing committee dated August 5, 1982, was challenged by making a complaint to the State Government. The said committee was dissolved and Abdul Rashid Khan retired Deputy Superintendent of Police was ordered to be appointed as Administrator Dargah. It may also be mentioned that the Wakf Board on January 4, 1983, again appointed a committee in which the Sub-Divisional Magistrate, Fatehpur was made the convener and S/shri A. R. Khan, Yasin Khan and Mouzzara Ali were made members of the committee. After the pronouncement of the judgment of Civil Judge dated August 28, 1986, the Wakf Board again took a decision to form a committee on August 30, 1986 appointing Sub-Divisional Magistrate, Fatehpur as convener and S/shri Shamshad Ali and Sadiq Ali as members of the Committee. As already mentioned above Mrs. Mohini Kapur J. on September 11, 1986 passed an order for maintaining status quo during the pendency of the present revision and it appears that the above mentioned committee consisting of Sub-Divisional Magistrate, Fatehpur, Shamshad Ali and Sadiq Ali is still continuing. The trial Court held all the three ingredients of prima facie case, balance of convenience and irreparable loss in favour of the plaintiff and granted an injunction in his favour so far as the duties to be performed by him as Sajjadanasin but so far as the general superintendence over the wakf property and its management was concerned, the same was ordered to be kept with the Wakf Board i. e. with the management committee mentioned above. While dealing with the question of prima facie case learned trial Court arrived at the conclusion that the plaintiff was proved to be disciple of the previous Sajjadanasin Nurul Hasan from whom he had obtained Khilafat. There was a will in favour of the plaintiff on the basis of which he had occupied the 'gaddi'. On the other hand, defendant No. 5 Gulam Jelanee did not fulfil any one of those conditions. In the previous litigation of a similar kind in the Dargah decision was given by the Chief Court of the State of Jaipur in 1929. It was also held by the trial court that the plaintiff had sit on Gaddi in the URS of 1979 and since then he has not been removed. The Japta of 1932 was even considered correct by the defendants and the same has been challenged up till now. The plaintiff cannot be considered as person belonging to different family. The plaintiff is the daughter's son of the previous Sajjadanasin and Moujjam Ali, the father of the plaintiff also belongs to the family of Nazamuddin. The trial Court also held that the defendant No. 5 Gulam Jelanee is claiming his right to succeed as Sajjadanasin as being the eldest son but in fact he is not the eldest son as his other elder brothers are still alive who have not been declared as insolvent or insane or otherwise having any disability not to become Sajjadanasin. The trial Court held on the basis of Diwan Gulam Rasul v. Gulam Qutab-ud-din (1) that Dastar Bandhi alone may not be sufficient to confer the right of holding the office of Sajjadanasin but in the present case the plaintiff had been nominated as successor by the out-going Sajjadanasin and he had actually performed the ceremonies as Sajjadanasin in the 'urs' held in 1979. Learned trial Court further held that so far as defendant Gulam Jelanee is concerned, he failed to mentioned as to which disciples had recognised him as Sajjadanasin. Admittedly, he had not been given any Khilafat by the previous Sajjadanasin and had not established as to from when he was holding the office of Sajjadanasin. In view of these circumstances, there was prima facie case established in favour of the plaintiff as he was actually sitting on the 'gaddi' in the capacity of Sajjadanasin. While deciding the question of prima facie case the trial Court also held that so far as management of the properties of the wakf are concerned the same are looked after by the committee constituted by the Wakf Board or receiver etc. , and prima facie it was not established that the office of Mutwalli and Sajjadanasin were vesting in the same person. On the question of balance of convenience the trial court held that the widow of previous Sajjadanasin Nurul Hasan and his two unmarried daughters were living in the Dargah properties. The plaintiff was performing the duties of Sajjadanasin since August 3, 1982 and the ceremonies of Fatiha on the third and fortiathday of death of Nurul Hasan were also performed by the plaintiff.
(3.) NOW so far as the first appellate Court is concerned, it set aside the findings of the trial Court on all the three points. The Civil Judge while dealing with the question of prima facie case observed that the founder of the wakf did not lay down the tenets or principles to guide succession to the seat of Sajjada-nasin. The Japta of 1932 was laid down by Peer Gulam Sarwar, who was a later Sajjadanasin and who was father of the appellants Nos. 1 to 5 and also the father of the last Sajjadanasin-Nurul Hasan. The Civil Judge considered the contents of Regulation 1 and 2 of the Regulations of 1932. On the basis of the contents of the above two Regulations the Civil Judge held that the plaintiff Peer Gulam Naseer, who was only a bit less than 3 years old, when the last. Sajjadanasin declared him as successor, did not qualify to this seat according to the principles of the Japta. In this regard, learned Civil Judge though admitted that a minor can be nominated to the office, but this can be done only when the inner flash of lights of the outgoing Sajjadanasin so urges him to do. As regards the judgment of the Chief Court dated September 21, 1929, learned Civil Judge observed that the question of Sajjadanasin was not decided in the said judgment. As regards the will made by Nurul Hasan learned Civil Judge posed a question Whether it was a will ? According to Civil Judge a will operates and comes in force after the death of testator and on September 12, 1979 the testator Nurul Hasan was alive The Civil Judge then observed as to how Shri Nurul Hasan could have relinquished his seat as Sajjadanasin on September 12, 1979 itself. Perhaps he had not done so otherwise how could there be two Sajjadanasins from September 12, 1979 till August 3, 1982 when Nurul Hasan died. The plaintiff being a child did not have the qualification as required under the Japta and he could not be so appointed unless so urged by a flash of inner light which seem to be wanting in the present case. It was further held by the Civil Judge that even if the will so authorised the plaintiff Gulam Naseer, he could have become Sajjadanasin only after the death of Nurul Hasan on August 3, 1982. According to Civil Judge the plaintiff himself in para 15 of the plaint mentioned that the defendants created trouble and they did not allow him to sit on the 'gaddi' on August 5, 1982. The suit was filed on August 6, 1982 and this means that the plaintiff did not have the opportunity to act as Sajjadanasin of the Dargah before filing of the suit. The Civil Judge also set aside the finding of the trial Court that Sajjadanasin and Mutwalli were different and the Wakf Board though can appoint a Mutwalli but cannot appoint a Sajjadanasin. The Civil Judge also gave a finding that the present suit against the Wakf Board was not maintainable in the absence of notice under Section 56 of the Wakf Act. According to the Civil Judge a writ petition had been filed by Nurul Hasan challenging the orders of the Wakf Board restraining him to appoint Gulam Naseer as Sajjadanasin. The said writ petition was dismissed by the High Court on August 3, 1982 and in the concluding para of the decision of the writ petition it had been held, "however, it is made clear that the petitioner (Nurul Hasan) will be free to file a suit and the observations made in this order would not be used so as to cause any prejudice to any of the parties. " It was thus held by the Civil Judge that if the Wakf Board had issued directions to Nurul Hasan not to appoint a minor as Sajjadanasin, the Wakf Board was within its jurisdiction to issue such directions and the suit against the Board was not maintainable without giving the statutory notice. It was further held that if the Board was a necessary party then the suit was not maintainable even against other persons even if it affected their rights. Learned Civil Judge observed that the trial Court had not decided the preliminary legal issue whether the suit was maintainable for want of notice to the Wakf Board. This was a vital point and should have been decided first of all This objection was substantial and the trial Court had erred in not deciding this preliminary objection. Learned Civil Judge also observed that the trial Court did not comply with the mandatory provisions of Order 39 Rule 3 CPC. The Court did not issue notice to the appellants (defendants) before granting expert injunction. It did not give sufficient and special reasons why it was necessary to grant injunction without giving an opportunity of hearing to the other party and the Court unfortunately did not see that the party in whose favour the order had been passed complied with the provisions of Rule 3 (b) by giving or sending copies of the plaint, application for injunction, affidavit or other documents to the parties against whom the temporary injunction order has been passed. Learned Civil Judge held that the trial Court committed a serious error in holding prima facie case in favour of the plaintiff. Gulam Naseer was a minor but he was not the son of the out-going Mutwalli and Sajjadanasin nor did he have the qualifications mentioned in the Japta. Moreover, the Board had forbidden his appointment and therefore, in view of these things there was no prima facie case in favour of the plaintiff. Learned Civil Judge also held that it was wrong for the plaintiff to say that Gulam Jelanee was stranger to the Dargah. Gulam Jelanee was the son of Peer Sarwar the third Sajjadanasin who also laid down the Japta though it was framed by the third Sajjadanasin it was accepted by both the sides at the time of registration of Dargah and it is a document which can guide them in complications. Learned Civil Judge also decided the question of balance of convenience and irreparable loss against the plaintiff. I have heard Mr. Bajwa for the petitioner and Mr. Barhdar for the non-petitioner Gulam Jejanee and Mr. M. I. Khan for the Wakf Board at length. ;