Judgement

BOSE, J. : The respondent filed a petition under Art. 226 of the Constitution in the High Court of Judicature at Hyderabad asking for a mandamus against the Director of Endowments of the Hyderabad Government. His prayer was that the Director be ordered to hand over the management and possession of a certain Dargah called the Dargah of Jehangir and Burhan-ud-din Piran and also the adjoining "hereditary lands", together with the income and profits, to the respondent.

2. The High Court granted the writ and the State of Hyderabad appeals.

3. The respondent s case is that the Dargah contains the tomb of one of his ancestors and that he and his ancestors have been the hereditary Sajjadas and Mutawallis of the Dargah for generations. In the year 1914, when the respondent s brother Syed Hussain was in possession, the Ecclesiastical Department of the State stepped in and entrusted the supervision of the Dargah to one Azam Ali.

He was removed in 1920 and the Ecclesiastical Department took over the supervision under a Firman of the Nazim which directed the Department to supervise the Dargah until the rights of the parties have been enquired into and decided. The respondent states that these rights were investigated by the civil Courts. The matter went up to the High Court and the decision all through was in his favour. Despite this has not been given possession and he seeks a mandamus against the Director and asks that the Director be ordered to hand over the management and possession to him.

4. The High Court granted his prayer. Shripat Rao, J. held that the Firman of the Nazim ceased to be valid after the Constitution, therefore the possession of Government after the date was unlawful. He also held that the Ecclesiastical Department took possession from the respondent and so it was bound to hand the Dargah back to him. The other learned Judge Mir Siadat Ali Khan, J. held that the Firman had served its purpose, therefore as the Dargah was not wakf property, supervision of the Department should be brought to an end.

Consequently, as the respondent s opponent was worsted in the civil litigation, and as the respondent had been out of possession for a generation and so could be assumed to have learnt a lesson, he should be placed in possession.

5. The learned Attorney-General, who appeared for the appellants challenged the accuracy of most of the facts on which the learned High Court Judges found but we do not think it necessary to go into that. We were taken through the documents in great detail by the respondent s learned counsel and he sought to establish from them his possession and that of his ancestors for generations, and also that the Ecclesiastical Department took over possession from him.

He also said that his descent from at least Syed Mir Saheb, his grandfather, was proved and that it was also established that Syed Mir Saheb was a hereditary Sajjada of the Dargah. All this is, in our opinion, beside the point. The petition and the appeal can be disposed of very shortly on another ground.

6. We do not intend to say anything about the facts of title and possession lest it prejudice further litigation, should there be any. We will assume, without deciding, that all that the respondent says about his hereditary rights and his possession is true. But whether he was in possession or not whatever rights to possession he may have had were held in abeyance by the Firman of 31-12-1920 and there is no subsequent order of the Civil Courts removing the bar.

Therefore, as he has no present right to possession, no mandamus can be issued. We do not mean to imply that writ would be the appropriate remedy if and when the respondent can establish a right to possession : that is a question that does not arise because in fact he has no present right to possession.

7. The facts that led up to the passing of the Firman are as follows. Disputes about the right to possession and supervision of the Dargah seem to have started about the year 1914,