P L D 1960 (W (PLP)

This second appeal arises from a suit brought by the plaintiff‑respondents, Mula Jadal, against the defendant‑appellants, Ali Dino Shah and others (eleven in number), for a declaration that he was the Mutwali of a mosque in village Baberloi, which belonged to the Sunni sect of Muslims, and for a permanent injunction to restrain the appellants, who had forcibly taken possession of that mosque in the year 1953, from interfering with his rights to carry out the repairs of the mosque and with his other duties as its Mutwali. The appellants claimed in defence that the said mosque formed part of an Imam Bargah and that the suit of the plaintiff‑respondent for a mere declaration was not maintainable as he had admittedly been ousted from possession. The other legal objections taken were that the suit was not within time, that the respondent could not bring the suit by himself on behalf of the entire Sunni Sect without recourse to Order I, rule 8 of the Civil Procedure Code and that the suit could not proceed without the sanction of the Advocate‑General. On the pleadings of the parties, the following issues were struck (1) Is the suit not maintainable ? (2) Is the suit bad for non‑joinder of parties ? (3) To what sect, Sunni or Shia, does the mosque belong ? (4) Is the plaintiff Pesh imam and Mutwali of the mosque ? (5) Has the plaintiff purchased land from Hussain Bakhsh for extension of mosque ? (6) What should the decree be ?

2. The trial Court dismissed the suit with costs holding on issue No. 1 that the suit was not maintainable because the plaintiff had not sought the further relief of possession which was open to him. Issue No. 2 was decided in the negative. On merits, it was held on issue No. 3 that the mosque did not belong to any particular sect and that the plaintiff was Pesh Imam for leading the Sunni congregational prayers held in the mosque, but he was not its Mutwali. On issue No. 5, it was held that the land was purchased from Husain Bakhsh from funds jointly contributed by Sunnis and Shias. The respondent, Mula Jadal, went in appeal against the order of the trial Court to the District Court at Khairpur Mir's. The learned District Judge allowed the appeal, set aside the judgment and decree of the lower Court, decreeing the plaintiff‑respondent's relief s as prayed for by him. He held that the suit was maintainable, that the mosque belonged to the Sunni Sect of Mussalmans and that Mula Jadal was its Mutwali. The defendant‑appellants have come up in second appeal against this judgment.

3. The learned counsel for the appellants frankly disclaimed any intention or attempt to re‑open the case on the findings of facts arrived at by the lower Appellate Court, namely, that the mosque belonged to the Sunni Sect and that the respondent, Mula Jadal, was its Mutwali. The learned lower Appellate Court has examined the evidence in detail led by the parties on these points and on the over‑all effect of that evidence it is really difficult to disagree with him, even if it was open in the second appeal to do so. But it was well settled that questions of facts cannot be re‑opened in second appeal vide Nadir Shah v. Gal Shah and Amir Husain Shah (P L D 1954 Lah.447) and that there is no jurisdiction in the' High Court to entertain a second appeal on erroneous view of facts by the lower Appellate Court, however, gross and inexcusable that error may seem to be Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38). The learned counsel, therefore, rightly did not touch the merits of the case on the findings of facts arrived at by the lower appellate Court and confined his arguments to the legal issue pertaining to the maintainability of the suit. His objection was two‑fold, firstly, that the respondent, according to his own averments in the plaint and subsequently in his admission, had accepted the position that he had been ousted from possession of the mosque in the year 1953, and, therefore, a suit for a simple declaration was not competent without the further relief of posses sion of the mosque in question. The second aspect of his objection is that since the suit purported to be for the benefit of the entire Sunni Sect, it could not proceed without adopting the procedure as laid down in Order I, rule 8 of the Civil Procedure Code for the prosecution of the representative suits. On both these objections, the learned counsel has proceeded on certain assumptions which are on the face of them erroneous in law. The property in suit is admittedly a mosque which is not capable of human ownership or possession as it belongs to God and is dedicated to His Worship. Every Muslim has a right of entry and worship in a mosque and none can be stopped from offering prayers therein. The legal position in regard to a public mosque is summed up in para. 218 of Mulla's Muhammadan Law, 1950 Edition, which may be usefully reproduced :‑ " Every Muhammadan is entitled to enter a mosque dedicated to God, whatever may be the sect or school to which he belongs, and to perform his devotions according to the ritual of his own sect or school. But it is not certain whether a mosque appropriated exclusively by the founder to any parti cular sect or school can be used by the followers of another sect or school." A review of the judicial decisions on the point leads to the con clusion that there is no such thing as a Shia mosque or a Sunni mosque or a mosque of any other sectarian denomination. A mosque being dedicated to Almighty God is for the use of all the Mussalmans to offer prayers therein without any distinction of sect. This was the view expressed in the year 1889 by the Allahabad High Court in Ata Ullah's case. (Ata Ullah v. Azim Ullah (I L R 12 All. 494) ) and was followed by the High Court of Lahore in Maula Bakhsh v. Amir‑ud‑din (I L R 1 Lah. 317) and Jiwan Khan v. Habib (I L R 14 Lah. 518). In my humble view, even where a mosque is appropriated to a particular sect, the rights of the Muslims of the other sects to offer prayers therein cannot be shut out, although as a matter of public expediency and' E to avoid conflicts arising from sectarian bias, these rights may not be exercised. Thus a Shafai may join in a congregational worship though the majority of the worshippers in the congregation may be Hanfis and he cannot be prevented from taking part in the service. Shias may worship in a mosque where the rest of the congregation are Sunnis, although in the interest of public order they may not have a separate call to prayer or to hold a congregation behind an Imam of their own vide Amir, Hussain Shah v. Hafiz Ghulam Rasul (A I R 1936 Pesh. 65). The nature and character of the rights of a Muslim individual in a mosque are, therefore, equal and co‑extensive with the rights of any other Muslim individual and no one can appropriate an exclusive right to himself or ban any other Muslim from offering prayers in it. A judicial redress from the Courts against the violation of these rights would be in the nature of a declaration of the rights of the individual concerned, which have been infringed, coupled with an injunction restraining the offending individuals from violating those rights. An injunction, in such circumstances, is the only effective consequential relief that can be made available as contemplated in the proviso to section 42 of the Specific Relief F Act and it is not correct to say that the only consequential relief in such cases is that of possession of the mosque by an individual who is not allowed to enter the mosque. In Ali Shah v. Fateh Muhammad Mutwali (A I R 1935 Lah. 657), a suit for a declaration that the plaintiff has been appointed to the office of Mutwali and for an injunction restraining the defendants from preventing him to carry out his duties was held to be competent and no suit for possession was held to be necessary. The learned Judges, Addison and Din Muhammad, JJ., who decided this case, had to decide a similar question in another context in the case of Jamait Dawat wa Tabligh Islam through Muhammad Abdullah Khan v. Muhammad Sharif (A I R 1938 Lah. 869) and laid down their view as follows :‑ " Although it may not be necessary to institute a suit for possession in certain cases, yet unless some sort of further relief is obtained mere declaration will not be of any use to those persons who are out of possession and who on the basis of mere declaratory decree cannot obtain possession." As stated by their Lordships, mere declaratory decree in such circumstances, would obviously be ineffective. It has, therefore to be joined by way of consequential relief with a decree for a permanent injunction restraining the opposite party from interfering with the substantive rights of the plaintiff of entry and worship in the mosque.

4. I am of the view that a public mosque in legal concept, and by its very nature is not capable of exclusive physical posses sion in the sense that one Muslim has no right to exclude another from offering prayers therein. From that angle, all Mussalmans are in possession without any one being in exclusive physical possession. And where neither party is in possession in the physical sense inconsistenly with the rights of the other, and the plaintiff's rights are obstructed by the defendant, a suit by the former for a declaration of his rights is maintainable and an injunction against the defendant not to interfere with these rights is the proper consequential relief for the purposes of the proviso to section 42 of the Specific Relief Act.

5. The objection taken by the learned counsel against the maintainability of the suit in reference to the provisions of Order I, rule 8 of the Civil Procedure Code is also without substance. Order I, rule 8, Civil Procedure Code, is an enabling section and does not entail any compulsion for a person to bring a representative suit, where an action can be maintained by him f without joining others. It simply enables a person to represent many others who have a common cause of action with him, but if his action is maintainable and can proceed independently of the I others, he does not at all stand in need of including others or to prefer a representative suit. In the present case, the respondent claimed that he was a Mutwali and apart from other members of the Sunni sect he had his own individual rights in the disputed mosque. The lower Appellate Court has found in his favour that he is a Mutwali with individual rights including the rights of worship which are also available to all the other Mussalmans. He has been rightly granted a declaratory decree along with the conse quential relief of a perpetual injunction restraining the appellants from interfering with his rights. I see no force in this appeal and dismiss it with costs. K. B. A. Appeal dismissed.