The Judgment of the Court was as follows:—
Shamsul Huda, J.:— This appeal arises out of a suit brought by two worshippers of a mosque situated at Rahmatgunge, one of the quarters of the town of Chittagong, for themselves and as representing other worshippers in the locality for a declaration that a permanent lease granted by the mutwallis, Defendant No. 4 and another, in favour of Defendants Nos. 2 and 3 in the name of their mother, the Defendant No. 1, is void and inoperative and for a decree for khas possession with mesne profits either in favour of the mutwalli or in favour of the Plaintiffs on the ground that it was not within the competency of the mutwallis to grant such a lease. The Plaintiffs have complied with the requirements of r. 8, Or. I. Both the Courts have decreed the suit in part only and have declared that the property in suit is part of the wakf property dedicated to the mosque and that the permanent lease granted by the mutwallis in favour of the Defendant No. 1 is void and inoperative. The prayers for khas possession and mesne profits have been disallowed. The Plaintiffs are satisfied with the decree. The Defendant No. 1, who alone contested the suit, appeals.
Three points have been raised before us by the learned Vakil for the Appellant. In the first place it is urged that the suit is one of the nature contemplated by sec. 14 of Act XX of 1863 and not having been instituted in conformity with the provisions of that Act is not maintainable in its present form. I am not impressed by this argument. It is fairly clear that the suit contemplated by sec. 14 is a suit instituted primarily against the Trustee, Manager or Superintendent of a mosque, temple or religious establishment or the members of any committee appointed under that Act, and that the only relief that can be asked for in such a suit is a decree directing the specific performance of any act by such Trustees, Managers, etc., a decree for damages and costs against them, and a decree directing their removal. The present suit is clearly not of that nature and the provisions of that Act are not applicable to it.
It is next argued that even if the suit is not one under sec. 14, Act XX of 1863, it is a suit which could only be instituted in compliance with the provisions of sec. 92 of the Civil Procedure Code and not having been so instituted is liable to dismissal. This contention is equally unfounded. It is obvious that the reliefs claimed in this suit are different from those mentioned in sec. 92. A suit under that section is primarily a suit against a Trustee and can only be instituted either on the ground that there has been a breach of trust or that direction of the Court is necessary for the administration of the trust. In this case, although the Trustee is one of the Defendants and although it is alleged that the grant of the permanent lease was not within the competency of the Trustee, no relief is claimed against him nor is the Court asked to give any direction for the administration of the trust. The contention therefore fails.
Lastly, it is urged that a representative suit under r. 8, Or. I, can only be brought on behalf of a body of persons capable of being ascertained, that a Mahomedan mosque being for the use of the Mahomedan public the Plaintiffs who represent only a section of the public could not maintain the suit except on proof of special damage. There seems to be no force in this contention. The suit does not purport to be one on behalf of the general public. It is a suit by the Mahomedan worshippers of a particular locality and these can be definitely ascertained. That they have a right of suit admits of no doubt.
Although a Mahomedan mosque properly so called as distinguished from a masjidul bait or place of private worship is open to the Mahomedan public, yet the higher right of the ahli masjid or the daily worshippers of a mosque, i.e, worshippers living in its vicinity, is clearly recognised in Mahomedan law.
Says the Bahrur Raiq:
“And in the same way the neighbours (ahli mahalla) have the right to prohibit one who is not of them from offering prayers in the mosque when the mosque is too small for them.”
In Fathul Quadir at p. 445 the law is laid down in these words:—
“It is within the competency of the daily worshippers of a mosque (ahli masjid) to convert its open space into a mosque and vice versa or to alter the position of a door or to open in it a new door, and if they differ it will be seen who represent the majority of those who have the right of guardianship to it. It is open to them (the daily worshippers) to demolish the old mosque and to build it anew. But this right does not appertain to those who are not of the mahalla.”
It is clear from these texts that the worshippers living in the vicinity of a mosque have rights to it over and above those possessed by the Mahomedan public and have a more direct interest in its maintenance and in the proper administration of the properties endowed for its benefit. In Mahomedan law there is definite recognition in many matters of what is termed Huqu-l-jiram or the rights of neighbours. The competency of a Mahomedan worshipper to enforce his individual rights in respect of a mosque and the trusts relating thereto has been recognised in numerous cases and I need only refer to the decision of Keramat Hossain and Chamier, JJ., in Dasondhar v. Muhammed Abu Nasar . I entirely agree with that decision and have no hesitation in following it.
As to proof of special damage apart from what I have already said it does not appear he me that such proof is necessary in suits like the present.
The appeal therefore fails and is dismissed with costs.
N.R Chatterjea, J.:— I agree.
N.G
Appeal allowed.