1. The present appeal has been filed by the appellant laying challenge to judgment dated 28.4.1990 passed by learned Additional District Judge, Nagaur whereby the suit registered as Civil Original Suit No.43/86 filed by him has been dismissed.

2. The facts relevant and necessary for adjudication of the present appeal are that the appellant - plaintiff had filed a suit for declaration and permanent injunction inter alia contending that the ‘Dargah’ known as Hazrat Sufi Hamiduddin Tarkkin Sultan is a wakf property, in which an annual festival known as ‘Urs’ is celebrated. The affairs of the said ‘Urs’ were managed by Rajasthan Wakf Board and during which, a customary ceremony was being solemnized, according to which, the plaintiff and his side one the one hand and the defendant and his side on the other hand jointly used to solemnize a ritual, in which the defendant brought ‘Sandal Bowl’ ¼panu dk I;kyk½ for handing it over to the plaintiff, who would offer the same to the ‘Majaar’. The plaintiff’s assertion in the plaint was that such customs was being observed for past many years, before some dispute arose in the year 1945, which dispute came to be resolved by way of arbitration. It had ben alleged that during arbitration between both the groups, it was decided that the defendant group would bring ‘Sandal Bowl’ ¼panu dk I;kyk½ and request the plaintiff to offer the same to the Seat ‘Majaar’; at such request the plaintiff would offer the ‘Sandal Bowl’ to the ‘Majar’.

3. Plaintiff’s case has been that despite the long drawn tradition, defendant objected to the same on 21.3.1985 and during the ‘Urs’, his group did not permit the plaintiff to offer the ‘Sandal Bowl’ ¼panu dk I;kyk½ and again on 10.1.1986, they restrained the plaintiff to offer ‘Sandal Bowl’ ¼panu dk I;kyk½ and instead insisted upon offering the same by themselves. Faced with such situation, the plaintiff filed a suit for mandatory and permanent injunction with the following prayers :-

^^¼9½ oknh dh izkFkZuk gS fd fMxzh cgd oknh f[kykQ izfroknh uhps vuqlkj lknj QjekbZ tkosA

¼v½ ;g ?kks"k.kk dh tkos dh lwQh lkgc ds lkykuk mlZ ij lwQh lkgc dh etkj 'kjhQ ij izfroknh rFkk mlds oa’kt }kjk lnay dk I;kyk yk;s tkus ij oknh dk vOoy vf/kdkj izfroknh ds }kjk ;g 'kCn dgs tkus ij fd yks HkkbZ p<kvksa] I;kyk lnay dk p<kus dk jgsxk vkSj bl vf/kdkj dks iz;ksx esa ykus ds fy, izfroknh rFkk mlds oa’kt dksbZ ,rjkt vkSj :dkoV uk rks [kqn djs uk fdlh vU; ls djkosA

¼c½ vkKkid vkns’k ds tfj;s izfroknh dks lany dk I;kyk lwQh lkgc dh njxkg ij ykus ds fy, ck/; fd;k tkosA

¼l½ [kpkZ okn fnyk;k tkosA

¼n½ vkSj dksbZ vuqrks"k ykHkkFkZ oknh gks vrk QjekbZ tkosA bfr**

4. The defendant opposed the suit and disputed the tradition as stated by the plaintiff and contended that the defendant after becoming ‘Sajjada Nashin’ in the year 1978, has been bringing the ‘Sandal Bowl’ ¼panu dk I;kyk½ with the congregation and offering the same to the Seat (Majaar) by himself.

5. The defendant not only refuted the right of the plaintiff but objected to very maintainability of the suit for enforcement of alleged customary or religious rite. The defendant also disputed the factum of the award or agreement dated 09.04.1945 pursuant to the arbitration proceedings. The defendant had taken an additional plea that even if, it is presumed that such custom does exist, such customary right cannot be enforced by courts, more particularly because such customs had not been observed for last two years, as stated by the plaintiff himself.

6. On the basis of the pleadings of the parties, the trial Court framed following issues on 26.8.1988 :-

1- vk;k ;g fjokt gS] fd njxkg lwQh lkgc ds lkykuk mlZ ij lwQh lkgc dh etkj 'kjhQ ij izfroknh rFkk mlds oa’kt }kjk lany dk I;kyk yk;s tkus ij oknh dks vOoy vf/kdkj izfroknh ds }kjk ;g 'kCn dgs tkus ij fd yks HkkbZ p<+kvksa] I;kyk lany dk p<+kus dk vf/kdkjh oknh dk gS \& oknh

2- vk;k nkok ds nks o"kZ iwoZ rd oknh us mijksDr dfFkr fjokt ds vuqlkj lany dk I;kyk etkj 'kjhQ ij p<+k;k \ & oknh

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