1990 (8) TMI 417 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the suit is within the time limit.
2. Applicability of U.P. Act No. XIII of 1936 to the rights of Hindus.
3. Validity of notification under Section 5(1) of the Muslim Waqf Act, 1936.
4. Jurisdiction and limitation due to the commencement of the U.P. Muslim Waqf Act, 1960.
5. Representative nature of the suit.
6. Effect of the Supreme Court judgment in Ghulam Abbas v. State of U.P.
7. Validity of the building as a mosque under Islamic law.
8. Legal status of the building as a mosque surrounded by a graveyard.
9. Necessity of a Mutwalli for the suit's maintainability.
10. Non-joinder of alleged deities.

Issue-wise Detailed Analysis:

Issue 1: Whether the suit is within the time limit.
The court considered the applicability of the Limitation Act, 1908, particularly Article 120, which prescribes a six-year limitation period for suits seeking declarations. The plaintiffs argued that the cause of action arose on 23-12-1949, when Hindus allegedly placed idols in the mosque. The court noted that the plaintiffs claimed continuing injuries, which would renew the cause of action daily. However, the court emphasized that the plaintiffs must establish the use of the mosque for prayers and the graveyard for burials to invoke Section 23 of the Limitation Act, which deals with continuing wrongs. This required oral evidence, making it inappropriate to decide the issue as a preliminary matter.

Issue 2: Applicability of U.P. Act No. XIII of 1936 to the rights of Hindus.
The court concluded that the issue did not fall under Clause (b) of Order XIV Rule 2(2) of the Code of Civil Procedure, which deals with bars to the suit created by any law. The defendants argued that any notification under the Act was not binding on Hindus, implying that the civil court had jurisdiction to adjudicate the title to the property. This issue, therefore, did not constitute a bar to the suit.

Issue 3: Validity of notification under Section 5(1) of the Muslim Waqf Act, 1936.
The court noted that the suit was filed by multiple plaintiffs, not just the Sunni Central Board of Waqfs. The issue referred only to the Board's right to file the suit, not the other plaintiffs. The court held that this issue did not constitute a bar to the suit under Clause (b).

Issue 4: Jurisdiction and limitation due to the commencement of the U.P. Muslim Waqf Act, 1960.
This issue was linked to the findings on Issue No. 17 by the learned Civil Judge, which stated that no valid notification under Section 5(1) of the Muslim Waqf Act was made. The court held that this did not bar the suit but rather questioned the extent to which the plaintiffs' suit could be decreed. The court emphasized that this issue did not fall under Clause (b).

Issue 5: Representative nature of the suit.
The court found that this issue related to the character of the suit. Even if the suit was not representative, it would not lead to its dismissal. Therefore, this issue did not fall under Clause (b).

Issue 6: Effect of the Supreme Court judgment in Ghulam Abbas v. State of U.P.
The court noted that this issue was related to Issue No. 5(e), which was already determined not to fall under Clause (b). Therefore, this issue also did not constitute a bar to the suit.

Issue 7: Validity of the building as a mosque under Islamic law.
The court held that these issues related to the plaintiffs' claim about the property being a mosque and graveyard. These were questions of fact requiring adjudication, not bars to the suit under Clause (b).

Issue 8: Legal status of the building as a mosque surrounded by a graveyard.
Similar to Issue 7, the court held that this issue required factual adjudication and did not constitute a bar to the suit under Clause (b).

Issue 9: Necessity of a Mutwalli for the suit's maintainability.
The court noted that this issue related to the relief for possession and did not challenge the plaintiffs' right to obtain other reliefs. It did not constitute a bar to the suit under Clause (b).

Issue 10: Non-joinder of alleged deities.
The court held that the plea of non-joinder stood on the same footing as mis-joinder, which was not a bar to the suit under Clause (b).

Conclusion:
The court concluded that none of the issues, except those related to limitation (Issues 3 and 5(f)), fell under Clause (b) of Order XIV Rule 2(2) of the Code of Civil Procedure. However, even these issues required factual adjudication, making it inappropriate to decide them as preliminary issues. The court emphasized the importance of resolving the dispute comprehensively and expeditiously, given its significance to the nation. Therefore, the court dismissed the application to decide the issues as preliminary issues and rejected the prayer for hearing and deciding the issues as preliminary issues.