// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil First Appeal No.144/1981 Tajuddin S/o Aminuddin (since deceased) now represented by Abdul Rashid @ Chand & Others ...plaintiff-appellants Versus Faqruddin S/o Kamaluddin (since deceased) now represented by Moinuddin & Others ...defendant-respondents Date of Order ::: 3rd November, 2006 PRESENT Hon'ble Mr. Justice Narendra Kumar Jain Shri Bajrang Lal Sharma, Sr. Advocate, with Shri Ashok Mishra and Dr. P.C. Jain and Shri Bhanu Pareek, Counsel for plaintiff-appellants Shri Rajendra Prasad, Counsel for defendant- respondents #### //Reportable// By the Court:- 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. Brief facts giving rise to this appeal are that // 2 // 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 // 3 // 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 // 4 // 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 // 5 // 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. In support of the case, plaintiff Tajuddin examined himself as PW-1 and produced documentary // 6 // 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 Fakruddin 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. // 7 // 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. During the pendency of the appeal the sole plaintiff Tajuddin died and an application under Order 22 Rule 3 of the CPC was filed which was allowed vide order dated 3rd of September, 1987 and appellant no.1/1 Abdul Rashid @ Chand Son of Shri Abdullah Khan was substituted in his place. An application under Order 1 Rule 10 of the CPC was also filed on the basis of the 'Will' dated 26th of March, 1987, alleged to have been executed by the appellant in his lifetime, by virtue of which he had appointed a Committee consisting of five members including the substituted appellant Abdul Rashid, to manage the affairs of Dargah. Remaining four members were – (1) Nisar Ahmed S/o Faiz Ahmed, (2) Farooq Ali S/o Hafiz Rehman Ali, (3) Sufi Mohammad Hanif S/o Mohammad Khan and (4) Mohammad Amin S/o Sufi // 8 // Mohammad. This Court, vide order dated 1.2.1994 allowed the application under Order 1 Rule 10 of the Code of Civil Procedure and above four persons were impleaded as appellants no.1/2 to 1/5 respectively. It is relevant to mention that the appellant no.1/3 Sufi Mohammad Hanif also died during the pendency of the appeal on 15.5.1998 and an application under Order 22 Rule 4-A of the CPC for substitution of his legal heirs was dismissed as not maintainable, vide order dated 17.9.1998. During the pendency of the appeal the appellant filed an application under order 41 Rule 27 of the CPC which was allowed by this Court vide order dated 20.2.1998. The respondent no.1/2 also filed an application under Order 41 Rule 27 of the CPC on 26.10.2005 and this court vide order dated 21.11.2005 passed an order that the said application will be considered at the time of hearing of the appeal. During the course of arguments, the said application was not opposed, therefore, the same is allowed and copy of judgment and decree dated 15.3.2005 is taken on record. The learned counsel for the appellants contended that the judgment and decree passed by the lower court, dismissing the suit of the plaintiff, is // 9 // absolutely illegal and contrary to the facts and law, both. He contended that the learned lower court committed a serious illegality in deciding the issue no.4 relating to res-judicata against the plaintiff and in favour of the respondent on the basis of Exhibit A-2, the judgment of the District Judge, Jaipur City, Jaipur, dated 7.9.1953. He contended that the suit of the plaintiff was based on the judgment of the Revenue Board dated 1.2.1974 (Exhibit-1), whereby the Matmi, in respect of disputed land, was sanctioned in favour of the plaintiff by the competent authority i.e. the Revenue Board, while exercising the powers under the provisions of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955, (hereinafter shall be referred to as 'the Act of 1955'). He contended that after coming into force of the Act of 1955 the plaintiff filed a Matmi case under the provisions of the Act of 1955 before the Board of Revenue wherein both the defendants were party and after hearing the plaintiff as well as both the defendants the Revenue Board, vide its judgment dated 1.2.1974, sanctioned Matmi in favour of the plaintiff, therefore, the cause of action for filing the present suit accrued to the plaintiff on 1.2.1974. He contended that the question of Sajjadanashin and // 10 // Mutwali was left open by the Revenue Board to be decided by the Civil Court, therefore, the present suit was filed. He contended that once the plaintiff is declared as Matmidar under Section 10 of the Act of 1955, then he was entitled to hold the post and work as Sajjadanashin and Mutwali of the Dargah, in dispute, and he was entitled to get possession of the entire property, which is in possession of the defendants and a decree of permanent injunction was liable to be issued restraining the defendants for not interfering in the day-to-day affairs of the plaintiff. He further submitted that a writ petition was filed challenging the order dated 1.2.1974 passed by the Revenue Board by the opposite party and the writ petition was dismissed, therefore, the said order has attained finality. He further contended that the learned lower court while deciding issue no.4 observed that the judgment of the District Judge, Jaipur dated 7.9.1953 was not brought to the notice of the Revenue Board and further that the order of the Revenue Board does not give any right to the plaintiff to raise the same issue afresh by filing a civil suit, which had already been decided vide judgment dated 7.9.1953. He also contended that the learned court has committed an illegality in not considering the provisions of the // 11 // Act of 1955 and the judgment of the Revenue Board dated 1.2.1974 (Exhibit-1) correctly. In support of his contention, he referred to the decision in the case of Anwar Khan Mehboob Company Vs. State of Madhya Pradesh & Others (AIR 1966 SC 1637) and on that basis contended that the principle of res-judicata in the present facts and circumstances of the case is not applicable and the finding of the learned lower court in respect of issue no.4 is liable to be set aside. Learned counsel for the respondents, Shri Rajendra Prasad, supported the judgment of the lower court and contended that the suit filed by the plaintiff was rightly rejected by the lower court. He contended that the controversy had already been settled by the competent civil court vide judgment dated 7th of September, 1953, (of the District Judge, Jaipur) a copy of which was placed on the record by the defendants as Exhibit A-2. He further contended that the judgment of the Revenue Board dated 1st of February, 1974 (Exhibit-1) does not help the plaintiff in any manner. The Revenue Board itself has made a distinction in between 'Matmi' as well as the post of Sajjadanashin and while deciding the question relating to 'Matmi' it was observed by the Board of Revenue // 12 // that the question of Sajjadanashin can only be decided by the civil court. He also contended that the judgment and decree dated 7th of September, 1953 dismissing the suit of the plaintiff for the same relief was further challenged by the plaintiff in the High Court by filing the first appeal but the same was also dismissed by the High Court vide order dated 20th of November, 1958 (Exhibit A-3) for non-deposit of cost of paper-book under Rule 205 of the High Court Rules, therefore, the judgment of the District Judge attained finality. He further contended that the appointment to the post of Sajjadanashin is governed by the practice and customs of particular Dargah and the custom in the instant case is of nomination by late Sajjadanashin and approved by congregation on soum day and in absence of nomination, appointment on soum day by congregation. He referred to the judgment of the Jaipur High Court dated 20th of December, 1944 (Exhibit-2) and also the judgment of the High Court dated 10th July, 1969 (Exhibit A-6) passed in the revision petition, wherein observations were given by the High Court that a Sajjadanashin is appointed in accordance with the custom and the mere fact that the State of Rajasthan recognized him as Matmidar is not sufficient to appoint him Sajjadanashin. The // 13 // aforesaid Revision Petition No.56/1969 was filed by Tajuddin against the order dated 23.12.1968, whereby the application filed by the defendant Fakruddin under Order 1 Rule 10 of the C.P.C., was allowed in a suit filed by plaintiff Tajuddin in the year 1968 against the State of Rajasthan, stating himself to be the Sajjadanashin and claiming some amount on account of expenses for 'chiragbatti and also value of 42 gold 'mohars'. He also contended that the finding of assumption of jurisdiction by the Revenue Board and its judgment dated 1.2.1974 (Exhibit-1) is without jurisdiction and renders the judgment as nullity and, in support of his contention he referred the case of Idol of Thakurji Shri Govind Deoji Maharaj , Jaipur Vs. Board of Revenue, Rajasthan , Ajmer & Others (AIR 1965 SC 906). The learned counsel for the respondent, therefore, contended that there is no merit in the present appeal and the same is liable to be dismissed. I have considered the submissions of the learned counsel for both the parties and minutely scanned the impugned judgment as well as the record of the lower court and also various documents filed by both the parties along with the application under Order 41 Rule 27 of the CPC. // 14 // The present suit was filed by plaintiff Tajuddin in the lower court to declare him as Sajjadanashin and Mutwali of well known Dargah Hazrat Ziauddin Sahib situated near Moti Katla, outside Chaardarwaja in Jaipur City. The His Highness, Jaipur had allotted seven bigha of land in Khasra Nos.497 to 503 in Jaipur City to Hazrat Mian Ziauddin for the use of residence and for laying down a garden around. Hazrat Mian Ziauddin Sahib was unmarried and died issueless. Mohinuddin became Sajjadanashin and he got constructed one Dargah on the said land. Mohiuddin was first Sajjadanashin. However, Mohiuddin was found involved in one theft case, therefore, he was removed from the post of Sajjadanashin by Jaipur His Highness on 23rd of January, 1911 and his brother Kamaluddin was appointed as Sajjadanashin. The present plaintiff Tajuddin is the grandson of Kamaluddin. Matmi was sanctioned in the name of Kamaluddin vide order dated 4th of December, 1920. When Matmi of Mohiuddin was sanctioned by the former Jaipur State in the name of Kamaluddin, Moinuddin son of Mohinuddin objected but his objection was rejected by the then Ruler on 3.2.1923. Kamaluddin died on 19.5.1938 and thereafter the dispute started on appointment to the post of Sajjadanashin and sanction of Matmi. Both the parties // 15 // initiated number of legal proceedings in various courts which went upto the Jaipur High Court. Exhibit- 2 is the judgment dated 20.12.1944 of the High Court. Exhibit-3 is the judgment of Jaipur Chief Court dated 22.8.1940. Exhibit A-1 is the judgment of the District Judge, Jaipur, dated 18.9.1946. Exhibit A-2 is the judgment dated 7.9.1953 of the District Judge, Jaipur. After the death of Kamaluddin in 1938, his eldest son Aminuddin became Sajjadanashin. However case of Matmi of Kamaluddin remained pending when the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 came into force and the same was decided by the Revenue Board under Section 4(1)(b) of the said Act vide judgment dated 1.2.1974 (Exhibit-1) in accordance with the provisions of laws of the covenanting State, viz. Jaipur State and, Matmi was sanctioned in the name of plaintiff Tajuddin. The plaintiff's case is based on the judgment of Revenue Board dated 1.2.1974 (Exhibit-1), whereby Matmi was sanctioned in his favour, whereas the case of the defendants is based on so-called customs of Dargah as pleaded in the written statement. The case of the defendants is that they were appointed as Sajjadanashin and Mutwali as per customs of Dargah and they are holding the said posts. The learned lower // 16 // court framed ten issues. The main issue/dispute in the present suit/appeal is the issue no.1 as to whether the plaintiff is Sajjadanashin and Mutwali of Dargah Hazrat Mian Ziauddin Sahib, in view of the judgment of the Revenue Board dated 1st of February, 1974. The learned lower court decided this issue against the plaintiff and in favour of the defendants. Learned counsel for both the parties have argued the appeal mainly in respect of issue nos.1, 2 and 4. Issue no.4 was in respect of principle of res-judicata and the lower court recorded a finding that the principle of res-judicata is applicable in the present case as the controversy had already been settled by the court of District Judge, Jaipur, vide judgment dated 7.9.1953 (Exhibit A-2), and the said judgment of the District Judge was challenged in appeal before the High Court and the appeal of the plaintiff was dismissed by the High Court vide judgment dated 20.11.1958 (Exhibit A- 3). Therefore, this issue no.4 was also decided against the plaintiff. The Matmi of disputed land has already been sanctioned in the name of Tajuddin and present case relates to appointment on the post of Sajjadanashin and Mutwali of Dargah erected on disputed land, therefore, it will be // 17 // appropriate to refer the definition of Matmi as well as relevant Rules in this regard. The Jaipur Matmi Rules, 1945 (for short, 'the Rules of 1945') and the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 are relevant in this regard. “Matmi” has been defined in sub-rule (3) of Rule 4 of the Rules of 1945, which reads as under:- “4. (3) “Matmi” means mutation of the name of the successor to a State grant on the death of the last holder. The person in whose name matmi is sanctioned is called the “matmidar” and the sum payable by him on his recognition as such by the State is called “matalba matmi.” The relevant rule as to who is entitled to succeed Matmi – are Rules 13 and 14 of the Rules of 1945, which read as under:- “13. The eldest real son of the last holder or if such son is dead, such son's eldest real son or eldest real grandson is entitled to succeed, unless in the opinion of the Ruler he is unfitted to succeed by reason of serious mental or physical defect or disloyalty; // 18 // Provided, firstly, that in the case of the panchpana sardars of Sheikhawati and the bhomias of Udaipurwati, the grant shall devolve on all the surviving real sons and the real sons or grandsons of predeceased sons of the last holder in accordance with local custom unless in any particular case His Highness the Maharaja Sahib Bahadur has recognized that the ordinary rule of succession by male lineal primogeniture shall apply; Provided, secondly, that in the case of a nihang grantee, a chela whose nomination has been approved by Government shall be entitled to succeed; and Provided, thirdly, that in the case of a tankha grant other than a grant held by an employee of the Bera khawas chelan of which the holder dies after the 25th October, 1943, his eldest real son shall be entitled to succeed only to one-half of the grant and such son's eldest real son to only one-fourth of the original grant. In the fourth generation of the holder in possession on the 25th October, 1943, the remainder of the grant shall be resumed.” “14. (1) Subject to the provisions of rule 13, succession in the absence of a direct male lineal descendant of the last holder // 19 // shall be restricted to the lineal male descendants of the original grantee, preference being given to the senior member of the senior line: Provided, firstly, that in the case of a grant for the maintenance of a temple, mosque or other religious place, other than a Jain temple, it shall be within the discretion of Government to select as successor any one of the male lineal descendants of the original grantee, with due regard to his suitability for the performance of worship; and Provided, secondly, that in the case of a Jain temple succession shall be sanctioned in favour of a manager nominated by the Panch Jains. (2) No adoption shall be recognized for the purpose of succession to a State grant unless a holder has obtained the previous sanction of the Government to adopt, such sanction being given only in favour of a direct male lineal descendant of the original grantee: Provided, firstly, that a person adopted in another family shall not be allowed to revert to his original family; and Provided, secondly, that a Raja (Lalji), a khawaswal, a tankhadar, an employee of the // 20 // Bera Khawas Chelan, an employee of the Karkhanejat and a Mina Chowkidar shall not be permitted to adopt. The Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 was enacted by the State Legislative Assembly, which