Punjab-Haryana High Court
Abdul Latif vs Masjid Patti Niyamatpur & Ors on 27 January, 2009
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.885 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.885 of 2008
Date of Decision:27.01.2009
Abdul Latif
....appellant
Versus
Masjid Patti Niyamatpur & ors.
.....respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr.Sanjay Verma,Advocate
for the appellant
****
RAKESH KUMAR GARG J.
CM No.83-C of 2009 For the reasons mentioned in the application order dated 02.12.2008 is recalled and the appeal is restored to its original number.
CM stands disposed of.
CM No.2659-C of 2008 For the reasons mentioned in the application delay of 76 days in refiling the appeal is condoned.
CM stands disposed of.
RSA No.885 of 2008 This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for declaration to the effect that plaintiff (Masjid Patti Niyamatpur, Mouja Talakaur) is being managed by a Committee which has been constituted by Mohammedan community of the village Talakaur, Tehsil Jagadhari, RSA No.885 of 2008 2 District Yamuna Nagar and for permanent injunction restraining the defendants from interfering in the management and control of the registered committee of the Masjid, has been dismissed.
It is the case of the plaintiff-respondent that the land in dispute vests in Masjid Patti Niyamatpur, village Talakaur, Tehsil Jagadhari, District Yamuna Nagar. After the partition of the country the Mohammedan community of village Talakaur appointed Noordin as the Mohatmim of the Masjid. The Deputy Commissioner sanctioned mutation in favour of the aforesaid Noordin in respect of Mohatmimship of the Masjid. Noordin failed to perform his duties properly because of his advanced age and failing health. Therefore, Mohammedan community again assembled on February 12, 1985 and constituted a committee for effective management of the plaintiff Masjid and its properties. Resultantly, Noordin was removed as the Mohatmim of the Masjid who failed to render accounts to the community. The newly appointed committee took charge of the Masjid and its properties on February 12, 1985, itself. The aforesaid committee is registered with the Registrar of Societies, Haryana. Noordin had expired 7 to 8 years prior to the filing of the suit. He had no authority to appoint a Mohatmim to manage the affairs of the Masjid. The defendants have allegedly formed a group in the village who have set their evil eyes on the property of the Masjid. The matter was also reported to the police. The SDM, Jagadhari attached the property under Section 145 of the Code of Criminal Procedure and delivered the possession of the property to a duly appointed receiver pending disposal of the suit. On the other hand, it was stated by the appellant that the Masjid is owner of the property in dispute. Late Noordin, uncle of the appellant Abdul Laltif was Mohatmim of the Masjid who was in actual physical cultivating possession of the properties. Appellant Abdul Latif extended all possible help to his uncle to manage the affairs of the Masjid. Noordin who was appointed as Mohatmim vide order RSA No.885 of 2008 3 dated 12.11.1950 passed by Deputy Commissioner, Ambala executed a valid Will in favour of the appellant on 04.12.1981, thereby appointing him as the Mohatmim to manage the affairs of the Masjid after his death. There is no managing committee in existence and the suit has been filed by a fictitious body. The power to appoint the Mohatmim is with the Deputy Commissioner and not with the Mohammedan community. The latter has no right, title or interest in the properties of the Masjid and there had been a series of litigation in respect of the right to manage the affairs of the Masjid and its properties.
The defendants also filed counter claim and submitted that Civil Suit No.440 of 1985 titled as 'Masjid Patti Niyamatpur vs.Shokat Ali & ors' was dismissed vide judgment and decree dated 27.01.1995. Appeal filed by defendant No.1 against that order was also dismissed. The plaintiff through its President moved an application before the SDM for getting possession of the suit property which was accepted vide order dated 30.11.1999 and passed the order to give the possession to the committee through its President. The plaintiff has already got the possession of the property in dispute and has started threatening to alienate, transfer, mortgage and lease out to sell the property in suit to get wrongful gains for themselves, whereas, defendant No.1 is entitled to get the possession of the property being the Mohatmim of the Masjid. Hence the present counter claim.
In reply to the counter claim the plaintiff stated that defendant No.1 is not competent to manage the affairs of the committee in any manner. The previous Mohatmim Noordin was not competent to execute the Will regarding the Mohatmimship of Masjid under the provisions of the law in the suit and the appeal decided by Sh.V.S.Malik, ADJ, the question of Mohatmimship and affairs of the Masjid have been finally decided and they are binding upon the parties and are res judicata to RSA No.885 of 2008 4 the rights of the defendants and defendant No.1 has no right to claim the Masjid. The trial Court after relying upon Mulla's principle of Mohammedan Law and the previous judgments between the parties held that the right of Mohatmim comes to an end on his death and the office of Mutawalli is not heritable and that congregation of locality can appoint Mutawalli and held that the judgments Ex.P-57, P-59 and P-67 are with regard to the property in dispute who have determined the rights of the defendants for managing the affairs of Masjid Patti Niyamatpur and the same amounts to res judicata and decreed the suit against the appellant.
Feeling aggrieved therefrom the appellant filed an appeal which was also dismissed by the District Judge, Yamuna Nagar vide impugned judgment and decree dated 07.08.2007.
Still not satisfied, the defendant No.1 has filed the instant appeal challenging the judgment and decrees of the Courts of the below.
Learned counsel for the appellant has vehemently argued that Noordin was appointed by Deputy Commissioner as Mohatmim of the Masjid and his appointment was never cancelled by the Deputy Commissioner and therefore respondent No.1 has no right to challenge the appointment of the appellant as Mohatmim of the Masjid through a Will without filing a suit under Section 92 CPC for removal of the Mohatmim.
I have heard learned counsel for the appellant. The argument raised by the learned counsel for the appellant is misconceived. Admittedly, the property in dispute belongs to the Masjid and Noordin was the Mohatmim of the said property and he was not competent to bequeath the rights of the Mohatmimship by a Will. It is well settled that the rights of a Mohatmim/Mutawalli comes to an end on his death. Reliance can be placed upon Gulzar Shah and others versus Suraari Ali Shah and others AIR 1930 Lahore 703(2) in this regard. Even otherwise, both the Courts below on appreciation of evidence have recorded a concurrent RSA No.885 of 2008 5 finding of fact that the judgments rendered in previous litigation relating to the property in dispute operates as res judicata between the parties in the suit and held that Noordin had no power or authority to pass on the baton to the appellant/defendant.
In view of the aforesaid findings of the Courts below, there is no merit in this appeal.
No substantial question of law arises.
Dismissed.
(RAKESH KUMAR GARG) JUDGE 27.01.2009 neenu