JUDGMENT

1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) questions the legality and propriety of the judgment dated 23.12.2005 passed by the Joint District Judge & Fast Track Court No.12, Vadodara in Civil Appeal No.86 of 2004, by which the learned first appellate Court reversed the judgment and decree dated 01.10.2003 passed in Regular Civil Suit No.339 of 1986 and dismissed the suit of the plaintiff.

2. For the sake of brevity, parties are referred to as per their original status before the learned trial Court.

3. The factual aspects in a nutshell are as under:-

3.1 Plaintiff - Pirzada Saiyed Bahauddin B. Kadri filed suit for declaration and permanent injunction against the State of Gujarat claiming relief to declare that notice dated 04.02.1996 issued by the Collector, Vadodara, bearing No.DEV/VASHI/328/86 as null and void, with the permanent injunction that the State Government may not restrain the plaintiff from carrying out religious and burial activities in the property of Danteshwar Hajira @Bada Hajira situated in land of Survey Nos.322/1 and 322/2 of Pratapnagar, Danteshwar, Vadodara (for short ‘suit land’).

3.2 The plaintiff’s relief was based upon the averments that plaintiff - Pirzada Saiyed Bahauddin B. Kadri is the Religious Scholar (Dharma Guru) at the Gadi of Shijar-ae Qadariya Ashrafia Rafiya, which exists in Vadodara having its head place at Khanka-ae-Qadariya, Hajira Pratapnagar, Dudeshwar Road and as such, the land of Survey Nos.322/1 and 322/2 is in possession of the Qadariyas in capacity of being an owner.

3.3 In this suit land, the tomb of Qutbuddin Muhammad Khan and son Naurang Khan exists with the tomb of some other members. There are several disciples of the Dharma Guru of the Qadariya across India. According to plaintiff, initially the elder brother of the plaintiff - Saiyed Ahmedmiya Badruddin Kadri,

was administering the suit premises and tombs thereon, but one Latifuddin Kutubuddin, having personal grudge with the elder brother of the plaintiff, in connivance with the Collector, removed him from the administration of the different tombs and consequently, the State Government has taken up the administration of the tombs. Plaintiff preferred application before the Charity Commissioner under Section 22A of the Bombay Public Trusts Act unsuccessfully. The revision before the High Court of Gujarat was filed, but status of which is not known to the plaintiff.

3.4 In background of aforesaid statement made in the plaint, it is a case of the plaintiff that he inherits the Gadi of Dharma Guru and taking care of the tombs as well as offering the religious Divabatti and also reading the Fatehakhani and taking all religious care of the tombs.

3.5 Plaintiff claimed that since he is a Dharma Guru and inherits his status from Saiyed Qutubuddin, tomb of whom is in the premises, plaintiff and his family members have the right to decent burial in the surrounding places of the tomb of Saiyed Qutubuddin.

3.6 Plaintiff, without taking the permission of the Collector, buried his daughter in the surrounding of the tomb in the year 1984. Thus, the Collector issued a notice upon the plaintiff on 04.02.1986 and restrained the plaintiff from carrying any activity within the protected monument. Plaintiff being aggrieved by the notice issued by the Collector, filed the Regular Civil Suit with the aforesaid prayer. The suit was hotly contested

by the State Government raising multiple contentions, including the contention that the suit land area is a ‘protected monument’ under the Protection of Superintendent, Archaeological Survey of India and plaintiff has no personal right to enter into the suit land along with this main contention, many other legal contentions were raised.

3.7 The plaintiff filed the oral evidence and also filed various documentary evidence in the list at Exhibit-3; however, did not get exhibited the State Government’s documents. The lea