1988 PLP 771 (CLC)

Date of hearing: 8th February, 1988. Manzoor Elahi and two others, the respondents herein brought a suit in the Court of Civil Judge, Jhelum against the first three appellants for declaration to the effect that Khasra No. 247 bearing an area of 7 Kanals 18 Marlas situated in village Kotla Aims, tehsil and district Jhelum is a graveyard of Muslims belonging to the village and, by way of consequential relief, they also prayed for a decree of permanent injunction being passed to restrain them from causing sacrilege of the graves by raising some construction or holding a Mela therein. The suit was contested by denying the right of the plaintiffs to maintain such a suit for which even a locus standi in them was also denied with the further averment that there is the grave of a Saint known as Sayed Miran Chiragh Ali Shah with some construction already raised around it for purposes of protection which is desired by the descendants of the Saint to be roofed. There were also a number of preliminary objections raised about the maintainability of the suit wherein trial Court passed two orders on 26‑4‑1976, one to refuse a temporary injunction claimed by the plaintiffs and the other to allow an application under Order I, Rule 10 of the C . P. C . filed by Sayyed Walayat Hussain Shah and Mst. Irshad Begum, appellants No. 4 and 5 herein, by permitting them to be joined as defendants in the suit. There was an appeal and a revision petition filed by the plaintiffs in the District Court at Jhelum to assail the respective orders of the trial Court. While dealing with this appeal and revision petition, Mr. Muhammad Amir Malik, the then District Judge observed in his judgment dated 23‑6‑1976, impugned herein, as under:‑‑ (3) "It is proposed to dispose of the appeal as well as the revision petition by this single judgment. (4) Furthermore since essential facts are admitted so the suit can be disposed of finally. I transfer it to the file of this Court in exercise of its original jurisdiction for final disposal." Thereafter, without either framing any issue or recording any evidence and in absence even of any opportunity provided to the parties to support their pleadings, at least by their own statements, the District Judge set out to decide the suit essentially by the process of elimination and basically on account of conjectures and surmises. He observed:‑‑ "

so the position is well‑settled that every Muslim has a right to be in the ground, every Muslim has the right to visit the grave for Fateha‑Khawani, but the grave cannot be turned into a tomb or made a place of worship or Mela as of right. I find accordingly. (10) The result is that the suit is decreed, the declaration is granted to plaintiffs that the suit land is graveyard of Ahl‑e‑Islam, the respondents‑defendants have no right to hold any Mela therein or to raise any construction on any grave of any nature as it amounts to changing the nature of the graveyard and undue interference in it, that is, something which is not sanctified by the law of Islam or the law of country."

2. The defendants have now come up in this First Appeal. Although transfer of suits to the District Court which is the principal Court of original civil jurisdiction in the district is quite permissible under section 24 of the C.P.C. and neither side has urged any grievance before me on that score, the defendants are aggrieved of the treatment of a rather unusual kind meted out to the suit by the District Judge in causing such a disposal as I have never seen or heard of during the last 38 years that I have been dealing with law as a legal practitioner and lately as a Judge. Therein the District Judge has thrown on board the entire procedure elaborately set out with even its minor details in the Code of Civil Procedure. To thus, unlawfully decree the suit, he has not adverted his attention even to the questions relating to the locus‑standi of the plaintiffs and the maintainability of the suit which had been specifically raised in the written statement. Although it is legitimately questionable as to how can the plaintiffs be described as the persons "entitled to any legal character or t any right as to any property within the contemplation of section 42 of the Specific Relief Act, to be possessed of the eligibility to file a declaratory suit and how may the present suit be at all tenable under the said section, yet, since the District Judge has not provided any opportunity to either of the parties for proof and disproof of these objections whereabout he has not given any finding and I intend to remand the suit for being tried according to law, therefore, I refrain from expressing my own views about these aspects of the case lest either party is prejudiced thereby.

3. Since the decree passed against the defendants‑appellants is not based on any evidence or legal material, therefore, it cannot be sustained. Hence, in result of the foregoing, this appeal is accepted with costs and setting aside the judgment and decree, dated 23‑6‑1978 passed by the then District Judge, Jhelum the suit is remanded to that Court for being tried in accordance with the law either by the present learned incumbent himself or by any other competent Court to which he may choose to transfer it for trial. Thus, far costs of the defendants will be paid by the plaintiffs. A.A./M‑590/L Appeal allowed.