P L D 1965 Peshawar 27 (PLP)

5. Upon appeal the learned Additional District Judge, Peshawar, took the view that crucial point for determination of the controversy involved in the suit was whether the plaintiff had rendered himself unfit to hold the office of the Imam. The lower appellate Court was also of the opinion that Abdus Salam was not given the opportunity to refute the allegations of mis conduct attributed to him. Accordingly, the learned Additional District Judge framed an issue on this point and referred it for trial to the Senior Civil Judge, Mardan, who recorded additional evidence and returned it with his finding to the lower appellate Court to enable it to decide the appeal. In nutshell the charges against the plaintiff-respondent as disclosed in the evidence were listed by the trial Court as under:‑ (i) Plaintiff was a womaniser and a sodomist, (ii) that he was a cinema‑goer, (iii) that he brought dancing girls to marriage ceremony of his son and allowed his females to dance in the same ceremony, (iv) that he abused the "Musalla", i. e., prayer carpet by saying that he would insert his penis in it, (v) that he is a back‑biter and tries to create rift in his congregations, (vi) that he is not regular in his daily prayers as he is running a tailoring shop, and (vii) that he refused to impart religious instructions to the children in the mosque, does not attend to funeral ceremonies, and takes no interest m the religious life of the community.

6. The trial Judge was of the view that charges Nos. (i) and (ii) were not substantiated. He considered that charges (v) to (vii) were amply proved, with regard to charges (iii) and (iv) the learned trial Judge was of the opinion that evidence in proof thereof was even and he did not give any finding on these two charges. The plaintiff‑respondent, in the opinion of the Senior Civil Judge, was unfit to hold the office of an Imam. The lower appellate Court cursorily looked at the evidence, and disagreeing with the finding of the learned trial Judge about the suitability of Abdus Salam as Imam, referred to the precedent to Hazrat Usman (may piece be upon him) and held that once a person is elected or appointed as Imam by the majority the question of his removal from the office does not arise, in the absence of proof of misconduct on his part rendering him unfit to remain as an Imam.

7. Mr. Abdur Rahim, the celebrated author of Muhammadan Jurisprudence, at page 384 of his Book has observed: "If the Imam happens to be oppressive and to violate the injunctions of the law and religion the Muslims may, if they can, replace him by another Imam . . . .".

8. In the case under consideration there is ample evidence on the record in proof of the fact that the plaintiff‑respondent is not a suitable person to continue as the Imam. The statement of one of the plaintiff's witnesses, namely, Mira Khan (P. W. 10), is relevant in this context. He stated that the Qaum does not want to have the plaintiff as an Imam. The respondent was not able to explain why a section of the residents of Kandi Pir Khel was against him. He admits that he works as a tailor, and after carefully going through the evidence, I am inclined to agree with the finding of the trial Court that Abdus Salam is not a fit person to continue as an Imam. He had grown so unpopular with the residents of the kandi that at one stage the police had to intervene. The plaintiff‑respondent was called by the police and it was decided with the consent of Abdus Salam that Maulvi Lutfur Rahman should perform the duties of the pesh Imam in the said mosque, and it is in the statement of the plaintiff that Maulvi Lutfur Rahman, who is a qualified maulvi from Deoband, has been performing the duties of pesh Imam since 1957. There is no denying the fact that the respondent by his conduct rendered himself highly abnoxious to a part of the congregation who say their prayers in the said mosque, and no person can be imposed on the congregation as an Imam against their wishes. It is amply clear on the record that the said mosque was built on a piece of shamilat land in the kandi by the owners as far back as the year 1870. Ahmad son of Majid whom the plaintiff claimed as his ances tor and who is recorded as Imam of the said mosque in the Register of khana shumari, was not an owner in Kandi Pir Khel. The fact that he is also shown as the bani of the said mosque does not necessarily go to prove that Ahmad son of Majid had actually constructed the mosque in dispute with his own funds.

9. I do not share the view expressed by the lower appellate Court that the defendant‑appellants in fact want to deprive the plaintiff‑respondent of muafi land which is attached to the said mosque. The predecessor‑in‑office of the plaintiff enjoyed the muafi land, but the Imam is liable to be ejected by the owners of the kandi as evidenced by the entries in the settlement record.

10. I am convinced that the plaintiff‑respondent by his misconduct has become extremely unpopular with the residents of Kandi Pir Khel and himself was responsible for creating a rift in order to continue as Imam with the help of one party, but he cannot be allowed to do so when there is ample proof on the record that he is an undesirable persen, and as such, is not acceptable to the majority of the proprietors.

11. Next I come to the question whether the suit is not maintainable in the present form. The trial Court held, and rightly too, that the right claimed is purely of a temporal (sic) nature.

12. Section 42 of the Specific Relief Act runs:‑ "Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make there in a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.‑A trustee of property is `a person interested to deny' a title, adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."

13. The plaintiff states in his plaint that he is the Imam of Spin Jumait, and that the defendant‑appellants should be restrained by way of permanent injunction not to interfere with his duties or with the affairs of the mosque.

14. There is nothing in the plaint to show that any emolu ments are attached to the office of the Imam, and as such, in my opinion, the suit as framed was not entertainable by a civil Court.

15. Learned counsel for the plaintiff‑respondent relied on Kuni Bihari Prasadji Purshottam Prasadji v. Keshavlal Hiralal and others (I L R 28 Bom. 567), Sardar Ali Shah v. Fateh Muhammad Mutawali, (A I R 1935 Lah. 657) and Debendra Narain Sarkar and others v. Satva Charan Mukerji and others (A I R 1927 Cal. 783), in support of the argument that the suit being for a declaration of the right of the plaintiff to the office of an Imam is entertainable by a civil Court.

16. I have gone through the decided cases and find that they proceed on their own facts and none of them is on all fours with the facts of the present case.

17. The relief being discretionary and the decree of the trial Court not being manifestly un appellate Court erred in reversing it.

18. For all these reasons I accept the appeal, judgment and decree of the lower appellate Court, of the trial Court, dismissing the suit with costs throughout. K. B. A. Appeal Accepted