Mustt Sahida Khatun and ors. Vs. Secretary, Tezpur Hindustani Muslim Panchayat and ors. - Court Judgment

1. Earlier a Commission was appointed by this Court to sort out the matter. The Commissioner has submitted a report and there he has stated that the present appellants are not wiling to compromise the matter and as such this matter is heard.

2. I have heard Mr. B.K. Goswami, learned counsel for the appellant and Mr. D.K. Bhattacharyya, learned counsel for the respondents. This Second Appeal is against the concurrent findings of facts by both the courts below. The respondent herein filed a suit for declaration of right title of the plaintiff over the suit holding described in Schedule-A and for a further declaration that the land described in Schedule-B is a Government reserved land for the Masjid and for consequential relief of recovery of possession of the said land as described in the Schedule and for further declaration that the properties described in Schedule-C belongs to the plaintiff.

3. The mosque in question was established in the year 1920 by some followers through contribution and subscriptions on a plot of land reserved for Masjid by the Government of Assam measuring3 Kathas 15 Lesses covered by Dag No. 1741 (old), 1223 (new) at Abdul Hamid Road of Tezpur towns/PS and Mouza Mahabhairab, District Darrang and that to impart Islamic education to the boys and girls of the Muslim community living in and around Tezpur town a 'MAKTAB' was also established and started by constructing a building on a portion of the plot of land by the side of the said Masjid at about the same time through donations and subscriptions of the people of the said community, that some time during the Imamship of late Hafiz Habibulla a part of the said Maktab building was allotted to late Hafiz Habibulla, the then Imam, for his residence as an incidence to his Imamship of the said Majid as there was no alternative arrangement for the residence/accommodation of the Imam and rest of the building was utilised for the said Maktab and this arrangement had to be continued during the Imamship of late Hazi Hafiz Mamtazuddin Ahmed upto the year 1949.

4. For the convenient living of the Imam and the members of his family, one Ekchala of permanent nature and one temporary out house were constructed later on by way of addition from the Masjid fund. For proper functioning of the Maktab a Committee was formed and late Hazi Hafiz Mamtazuddin Ahmed was the Secretary of the Maktab. That in the Municipal valuation list the Masjid was registered in its own name while the Maktab was registered in the name of the Secretary Maktab in a separate holding. Subsequently, a new Maktab was established and part of the building which was earlier used as Maktab was gradually closed down and ultimately in the year 1949 the said Maktab was abolished. After coming back by Haji Hafiz Mamtazuddin Ahmed from Haz, the entire building of the said Maktab was converted into the residential quarter of the said Imam of the said Masjid as an incidence to his Imamship of the said Masjid. Hazi Hafiz Mamtazuddin Ahmed having fallen ill prior to about 3 months of his death being unable to discharge his duties of Imamship, Hafiz Aminul Haque was appointed to perform the Imamship of the said Masjid and ultimately on 12.3.1978 Hafiz Mamtazuddin Ahmed died. Thereafter a separate Managing Committee was constituted to manage the Mosque. The plaintiff society was registered under the Societies Registration Act, 1860. In terms of the said Constitution of the Society, all the properties of the Masjid including the Maktab building vested on the said Executive Committee of the plaintiff Society and since then they are managing the same. Hazi Hafiz Mamtazuddin Ahmed was allowed to occupy the said building during his life time by virtue of his Imamship of the said Masjid and the defendants in the suit being family members were stayingwith him in the said building and with termination of his Imamship of the said Masjid due to his death on 12.3.1978 the defendants have forefeited all rights to continue in the building and they are legally bound to hand over the vacant possession of the said building and premises to the plaintiff. After the death of late Hazi Hafiz Mamtazuddin Ahmed, several requests were made to the defendants to vacate the premises, but the defendants instead of vacating the premises has started to set up hostile title to the said building and premises by their various acts of commissions. As the defendants did not vacate the premises, necessary notice was issued according to law, but the defendants in spite of receipt of the notice, constructed Gumti on the said land. Hence the suit with the following prayers:

(a) For declaration of Tezpur Hindustani Muslim Panchayat's right and title in respect of the suit building mentioned in Schedule-A and consequential reliefs of recovery of the houses mentioned in Schedule-A.

(b) For declaration that the land described in Schedule-B is a Government reserved land for the Masjid i.e. Tepur Mindusthani (Deswali) Masjid, and eviction of the defendants therefrom by demolishing the Gumti standing on a part thereby described in Schedule B.

(c) For declaration of Tezpur Hindusthani Muslim Panchayats right and title and consequential relief of recovery of movable properties mentioned in Schedule-C.

There were other prayers but we are not concerned with the same. A written statement was filed on behalf of the defendant. The whole contention of the defendant was that MM- Maktabhas got no concern with the Masjid. The separate Municipal Holding in two separate name clearly signify separate identity of Masjid and Maktab. That the plaintiff society has no right to sue. They claim that they are not liable to vacate the land. On this pleadings as many as 10 issues were framed in the suit. It is not necessary to quote the issues. For decisions of these issues 12 witnesses were examined on behalf of the defendant and six witnesses were examined by the defendant. A large number of documents were also exhibited. Issue No. 1 is regarding the maintainability. The trial court has decided as follows:

'Therefore, it is certain that the said Maszid is known as Hindustani Maszid and the Hindustani Muslim Panchayat is thesole authority to maintain and manage the Maszid and its properties. So, there is no doubt that it is the Hindustani Muslim Panchayat and its Managing Committee who can look after the interest of the Maszid and to protest its property. There is no other authority to question the action of the Panchayat or its committee. The Secretary the plaintiff was authorised to file the suit.'

Issue Nos. 2, 3, 4 and 5 need no discussions. Issue No.2 whether the plaint has been signed and verified by authorised person. Issue No. 3 is whether the suit has been properly valued and whether proper court fee has been filed. Issue No. 4 is whether there is any cause of action in the suit. Issue No. 5 is whether the suit is barred by limitation. All these issues were decided in favour of the plaintiff. Issue No. 6 is whether the State of Assam is a necessary party and it was found by the trial court that the State of Assam is not a necessary party. Issue No. 7 is a most vital issue and that issue is whether Tezpur Hindustani Muslim Panchayat has any right title in the suit land and premises and in the movable properties described in the plaint. In the plaint there is a statement that the Government of Assam reserved 3 Kathas and 15 lessas of land covered by Dag No.1741 (old), 1223 (new) for Masjid and thereafter Masjid and Maktab were established by Hindustani Muslim. PW 1 who is a man aged about 101 years stated the details how the Masjid was established. He was given detailed picture about the land and construction of the Masjid. Exhibit-13 the chitha shows that this land was originally recorded in the name'of the Masjid, but later on it was cut down and name of the defendant was shown as Rayat in Column No. 16 and the period to' possession was shown 12 years. Later on it was cut down. Column. No.! 23 is remarks column of the Chitha. In the said column it, is specifically written Masjid (Mosque). This Exb. 13 itself shows that this land was actually reserved for Masjid and that is why in the remarks column it was mentioned as such. There is also evidence as deposed by PWs 1, 2, 3, 4, 5, 6 and 7 that Hafiz Mamtazuddin Ahmed had been in the house given as in incidence of Imamship and noting his personal capacity. D.W. 1 the widow of Hafiz Mamtazuddin Ahmed also admitted this position as has been found by the trial court. That is also in admission of D.W. 2 the son of Hafiz Matazuddin Ahmed. On the basis of these materials it was found by the trial court that the plaintiff had the right, title and interest to the bouse on the land and also held that title of the land may be possessory title and accordingly the suit was decreed. There was an appeal being Title Appeal No. 4 of 1987 before the learned Addl. District Judge, Sonitpur at Tezpur. The learned Judge on considera- tion of the materials on record affirmed this finding of fact arrived at by the trial court. Hence, this Second Appeal. Following are sought to be urged as substantial question of law :

1. Whether the plaintiffs title could be declared in respect of the suit land which is admittedly Government land without making the Slate of Assam a party?

2. Whether the suit was barred by limitation?

3. Whether the secretary of the Tezpur Hindustani Muslim Panchayat had the right to sue or to get a decree?

Regarding No. 2 question sought to be urged there is no substance in this question at all and by no stretch of imagination it can be deemed to be barred by limitation.

5. Regarding point No. 3 as I have pointed out above in the facts and circumstances of the case it is the Secretary of the Tezpur Hindusthani Muslim Panchayat which have right to sue to get the decree inasmuch as under the Mahomadan Law a Mosque is not a juristic person (See AIR 1926 Lahore - 372 Maula Bux v. Hafizuddin and AIR 1940 SC 116, Shahidganj v. Gurdwara Parbandha Committee. The question was discussed in the Shahidganj's case and their Lordships reserved their opinion on it on the question whether mosque a juristic person nor not. But it is pointed out by Mulla's Mahomedan Law in Clause 219 of his Book that the trend of their observations seems to show that the view of the Lahore High Court did not commend itself on them and their Lordships however held that suits cannot be brought by or against mosques as artificial persons. In the same clause Mulla has cited a derision of the Rajasthan High Court that a Mosque is not a juristic person. 1 have not been able to look into the same as citation is not available and as such 1 have not been able to go through it. So if the Mosque is not an artificial person, the property of the Mosque must be protected by some one and it is in that context that the plaintiff has right to sue on behalf of the Mosque, as pointed out by Mulla in his Book a Mosque is nothing but a place where all Muslims offer prayers therein without any distinction of sect and it is further pointed out by Mulla that a Mosque all Mussalmans can simply walk and offer prayer there. A Mosque also does not belong to a particular sect or class, it belongs to all the Mussalmans. That being the position, the plaintiff will have the right to protect the property of the Mosque and if the matter is considered from that angle also, they have the right to sue. Therefore, all the points urged are rejected. The appeal is dismissed. Stay order if any passed earlier shall stand vacated.