Judgment

SIKRI, J.: This appeal by special leave is directed against the judgment of the Orissa High Court in a second appeal whereby the High Court affirmed the decree and order passed by the First Additional Sub-Judge, Cuttack, with modifications. The High Court held that "the restrictive order of the lower appellate Court directing the plaintiffs to take out processions with a "low sound music except drum-beating" is not justified" and directed the deletion of this portion from the order of the lower appellate Court.

2. In order to appreciate the points raised before us it is necessary to give a few facts and the findings of the Court below. The plaintiffs, respondents before us and hereinafter referred to as the plaintiffs, brought this suit against the defendants, appellants before us and hereinafter referred to as the defendants, praying for a declaration that the Hindu villagers of the two villages had the right to take out religious and non-religious processions with appropriate music along the District Board and village roads and other public highways of the locality including those by the side of the defendants mosques without any interruption wherever the plaintiff s community chose to take out without restriction and that the defendants, viz., the Mohamedan villagers of villages Alkund and Nuagaon, be permanently restrained from interfering with the plaintiffs lawful procession as aforesaid in any manner

3. The case of the plaintiffs, in brief, was that the villages Nuagaon and Alkund were contiguous villages and they had a common social, cultural and religious life, and they were entitled to take out religious an non-religious processions with appropriate music. It was alleged that the Muslim villagers of the locality had two mosques, one in each village, abutting the highway. It was further alleged that till the Kartik Purnima day of 1952 the plaintiffs had taken out their religious and social processions with appropriate music without any interruption before the mosques in question; that the plaintiffs were prevented from exercising their lawful rights by orders of the Magistracy at the instance of the defendants; that the defendants held out threats to attack the plaintiffs peaceful processions and accordingly it was necessary to clear the cloud created by the Magistracy and the conduct of the defendants.

4. We may mention that the District Magistrate and the State Government were not made parties to this suit.

5. The defendants main plea was that the right claimed by the plaintiffs could only be exercised as not to cause any interference with the exercise of the rights of the defendants. It was alleged that the Muslim community of the two mauzas also had inherent, natural and fundamental rights to offer their prayers in complete calmness without any interference whatsoever and they were entitled to oppose music being played near about the mosque in order to maintain the calmness inasmuch as the music or Sankirtan really disturbed the calmness which was absolutely necessary for concentration of mind in prayer. The defendants also relied on a compromise alleged to have been arrived at between the two communities in 1931. It was alleged that in pursuance of the compromise two pillars had been put up by the defendants on both sides of the mosques to indicate to the music players of the precisionists where to stop the music, and the pillars bore the following engraved inscriptions: "Baja Bajaiba nishdha".

6. The following issues, among others, were framed by the trial Judge:

(5) Is the right of the plaintiff villagers to take religious and non-religious processions with appropriate music by the side of the mosques of Nuagaon and Alkund likely to infringe the rights of the defendant Moslem villagers to offer their prayer in calmness?

(6) Are the plaintiffs entitled to enforce their right in disregard of the fundamental rights of the defendants?

(7) Are the plaintiff villagers estopped to re-agitate their lost fundamental