SR.908-AO-850-2022.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO. 850 OF 2022

WITH

INTERIM APPLICATION NO. 17715 OF 2022

Pramod Vasudeo Baria .. Appellant

Versus

Salim Abdul Shaikh and Ors. .. Respondents

Mr. Vishal Kanade a/w Ms. Tanaya Patankar, Mr. Kartik Tiwari, Mr.

Devang Shah, Mr. Aditya Kandha i/b M/s. Lakshyavedhi Legal,

Advocate for the Appellant.

Pramod Vasudeo Baria, Appellant present in person.

Mr. Mayur Khandeparkar i/b Mr. Sanjeev Singh a/w Mr. Ritesh Singh

and Mr. Siddhant Mishra, Advocate for the Respondents.

CORAM: FIRDOSH P. POONIWALLA, J.

RESERVED ON: DECEMBER 19, 2025

PRONOUNCED ON : JUNE 9, 2026

P. C.

1. This Appeal from Order is filed by original Defendant No.4

challenging the Order dated 15

th

June, 2018 passed by the Bombay City Civil

Court at Dindoshi, Goregaon, Mumbai, allowing Notice of Motion No. 2165 of

2016 in terms of prayers (a) to (e) which read as under :

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TRUSHA

TUSHAR

MOHITE

Digitally signed by

TRUSHA TUSHAR

MOHITE

Date: 2026.06.09

18:08:48 +0530

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“a. Pending the hearing and final disposal of the present suit this

Hon'ble court be pleased to stay the implementation and the

operation of the consent term filed on 17.01.2015 in suit no.

3015 of 2014 and further the consent decree drawn in respect

thereto being Exh-E colly hereto.

b. Pending the hearing and final disposal of the present suit this

Hon'ble court be restrain the defendants, their servants and/or

agents and/or representatives and/or any persons claiming

through or under them from interfering, causing any disturbance

and/or obstruction and/or restraining with the plaintiffs and other

followers of Dargah either belonging to the Muslim community

or otherwise from attending the said Dargah, offering prayer,

carrying out any religious functions, and/or performing their

religious functions throughout the day as per their religious

requirement and belief and on all days and further be directed to

keep open the gate for ingress and egress to the said Dargah

abutting to the chincholi bunder road.

c. Pending the hearing and final disposal of the present suit the

defendants be restrained by order and injunction of this Hon'ble

court from representing themselves as the owner of the suit

property and the Defendant No 4 be restrain from representing

themselves as the lessee of the suit property viz. ALL that piece

and parcel of land bearing CTS No. 16A & 16A/1 adms. 151.34

sq. mtrs., of Village: Chincholi, Taluka: Borivali in the

registration district and sub-district of Mumbai City and

Mumbai suburban, situate, lying and being at Chincholi Bunder

Road, Nr. Kingston Apartment, Malad (W), Mumbai-400 06

more particularly shown in ___colour boundary line in the Plan

being Exh-A hereto pursuant to the Deed of Lease dated

20.10.2012 being Exh-G hereto and further be restrained from

using and/or acting upon the said Deed of Lease dated

20.10.2012 being Exh-G in any manner whatsoever.

d. Pending the hearing and final disposal of the present suit, the

defendants be restrained by an order and injunction of this

Hon'ble Court from representing themselves as an owner of the

suit property as mentioned in prayer clause (c) above to any

third person/s pursuant to the Deed of Lease dated 20.10.2012

being Exh-G hereto and further be permanently restrained from

using and/or acting upon the said Deed of Lease dated

20.10.2012 being Exh-G hereto, in any manner whatsoever.

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e. Pending the hearing and final disposal of the present suit, the

defendants, their servants and/or agents and/or representatives

and/or any persons claiming through or under them be restrained

by an order and injunction of this Hon'ble Court from dealing

with, selling, transferring, alienating, encumbrances, disposing

of, and creating any third party in respect of the suit property as

mentioned in prayer clause (c) above in any manner

whatsoever.”

2. In this Judgement, the parties will be referred to as per their

nomenclature in the Suit.

3. The facts of the case are not separately set out as they are referred to in

the submissions of the Counsel for the parties, which are set out herein

below.

SUBMISSIONS OF THE APPELLANT (ORIGINAL DEFENDANT

NO.4)

4. Mr. Vishal Kanade, the learned counsel appearing on behalf of the

Appellant (original Defendant No.4), submitted as follows :

a) One Jivanji Pestonji Goregamwala was in exclusive u se,

occupation, possession and ownership of a plot of land bearing Survey

no. 5A, Hissa No.1, corresponding to CTS No.16A admeasuring 527.6

sq.meters, 16A/1 admeasuring 191.6 sq. meters and 16B admeasuring

543.5 sq. meters situated at village Chincholi, Taluka Borivali.

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b) During the lifetime of the said Mr. Goregamwala, he constructed

Dargah of “Sayed Khwaja Moinudin Chisty” on a portion of the said

property admeasuring 24’ x 20’. He used to keep the Dargah open for

the public every Thursday between 4 p.m. and 7 p.m.

c) The said Mr. Goregamwala executed a Will dated 11

th

February,

1956 which contained a specific reference to a Dargah in paragraph 8

which reads as under :

“8 I am absolutely seized and possessed of the immovable

properties in Malad in Greater Bombay as under and nobody has

any claim of any kind over the same. They have been purchased or

acquired out of my own money :-

a) _ _ _

f) A Dargah built by me in Chincholi along with the lands

adjoining thereto and which is my own private property and

nobody has any claim over the same for worship or otherwise. It

has not been dedicated by me for public use”.

d) On 26

th

April, 1959, Mr. Goregamwala passed away and after his

death, a Private Trust was created in respect of the said entire plot of

land by the name of Late Jivanji Pestonwala Goregamwala Family

Private Trust.

e) On 20

th

June, 1961, the Executors of the Will of Mr.

Goregamwala obtained a probate in respect of his Will dated 11

th

February, 1956.

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f) By an Order dated 21

st

January, 1953, the Deputy Charity

Commissioner had declared the Dargah as a Public Trust. In 1991, Mrs.

Banoobai Elavia, Mr. Homi Elavia and Mr. Hoshang Desai filed a

Revision Application under Section 70A of the Bombay Public Trusts

Act, 1950, challenging the said Order dated 21

st

January 1953, passed

by the Deputy Charity Commissioner declaring the Dargah as a Public

Trust, and, in the alternative, sought for a correction of the clerical

mistake in the P.T Register, Schedule 1 wherein the entire area land of

1066 sq. yards, including the area of Dargah of 24’ x 20’, was shown as

Public Trust Property.

g) By an Order dated 26

th

August, 1991, the Charity Commissioner

recorded the statement of the Applicants that they would not mind if

the Dargah continued as a Public Trust as registered by then the

Deputy Charity Commissioner as per his Order dated 21

st

January,

1953. However, the Charity Commissioner was pleased to hold that, in

the original record, the structure of the Dargah was shown as 24’ x 20’,

and therefore only an area of 24’ x 20’ would be considered as a Public

Trust, and not the total property of 1066 sq. yards.

h) on 18

th

February 1999, the Trustees of the Late Jivanji

Pestonwala Goregamwala Family Trust, i.e. Defendant Nos. 1 to 3,

executed a tenancy agreement with Defendant No.4 in respect of a plot

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of land admeasuring 150 sq. meters out of the total plot of land bearing

CTS No. 16A and 16A/1 .

i) The Trustees of the said Trust, i.e. Defendant Nos. 1 to 3,

executed a Deed of Lease dated 16

th

November, 2021, in favour of

Defendant No.4 in respect of a plot of land admeasuring 150 sq. meters

out of the total plot of land bearing CTS No. 16A and 16A/1, for a

period of 999 years, effective from the 1

st

day of November, 2011, for

the purpose of development of the said premises and/or for conducting

commercial activities thereon.

j) Further, Defendant Nos. 1 to 3 also executed a Deed of Lease

dated 20

th

October, 2012 in favour of Defendant No.4 in respect of a

plot of land, admeasuring 151.34 sq. meters. As per clause 3(f) of the

said Deed dated 20

th

October, 2012, it was agreed that Defendant No.4,

i.e. the lessee, would keep the main gate of the demised premises open

for any person on every Thursday between 4 p.m and 7 p.m. in order to

facilitate the concerned persons to enter into the Dargah. It was further

agreed that the entry of the concerned persons shall be limited only to

entering the Dargah and the lessee could prevent such persons from

loitering around the premises.

k) On 18

th

December, 2014 Defendant Nos. 1 to 3 filed a Suit No.

3015 of 2014 against Defendant No.4

inter alia seeking a declaration

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that the lease deed dated 20

th

October, 2012 is valid, subsisting and

binding and that Defendant No.4 had no right to commit any breach of

Clause 3(f) of the said lease deed.

l) On 17

th

January, 2015, Suit No. 3015 of 2014 came to be

withdrawn as disposed of in terms of Consent Terms entered into

between the parties. By the said Consent Terms, Defendant No.4

agreed to keep the main gate open for entry of concerned persons to

reach the Dargah on every Thursday between 4 p.m. and 7 p.m. It was

further agreed that Defendant No.4 shall keep a 4 feet wide approach

road from the main gate to the Dargah, demarcating the dividing line

between the property let out to him and access to the Dargah, and, if

necessary, erect a compound wall to avoid any inconvenience to

visitors of the Dargah on Thursday between 4 p.m. to 7 p.m.

m) In 2015, the present Suit No. 2298 of 2015 came to be filed by

the Plaintiffs claiming that the cause of action arose on 4

th

February,

2015 when the devotees were restrained from offering prayers at the

Dargah.

n) On these facts, Mr. Kanade submitted that the Plaintiffs have

admitted that they are not the owners of the Suit Property nor do they

have any interest in the Suit Property i.e. the piece and parcel of land

bearing CTS No. 16A and 16A/1 admeasuring 151.34 sq. meters at

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Chincholi, Taluka Borivali. Further, Mr. Kanade submitted that the

Plaintiffs are admittedly only worshippers and devotees who cannot

claim any right or interest in the Suit Property. Further, Mr. Kanade

submitted that the public trust property is only the Dargah

admeasuring 24’x20’ and not the Suit Property as held by Order dated

26

th

August, 1991 passed by the Charity Commissioner, which had not

been challenged and had attained finality.

o) Further, Mr. Kanade submitted that Consent Terms dated 17

th

January, 2015 are executed between the lessor and the lessee and the

Plaintiffs have no locus in the property. Mr. Kanade submitted that the

Plaintiffs are admittedly not even parties to the interse Suit between

Defendant Nos. 1 to 4.

p) As far as setting aside the lease deed dated 20

th

October, 2012 is

concerned, Mr. Kanade submitted that it is an admitted fact that the

Plaintiffs are not the owners or occupiers or possessors or tenants of

the Suit Property. They do not have any right, title or interest in the

Suit Property.

q) Mr. Kanade also referred to the Judgement of the Hon ’ble

Supreme Court in Ajanta LLP Vs. Casio Keisanki Kabushiki Kaisha

D/B/A Casio Computer Ltd & Anr. (2022) 5SCC 449.

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r) Mr. Kanade submitted that the Appellant (original Defendant

No.4) is willing to make a statement that access will be given to the

worshippers and devotees to the Dargah on all days, throughout the

day, and that the Defendant No.4 will build a compound wall around

the Dargah. Mr. Kanade submitted that this statement of the Appellant

(original Defendant No.4) can be recorded and the impugned order set

aside.

SUBMISSIONS OF RESPONDENT NOS. 1 TO 11 (ORIGINAL

PLAINTIFFS)

5. Mr. Mayur Khandeparkar, the learned counsel appearing on

behalf of Respondent Nos. 1 to 11 (original Plaintiffs), submitted as

under :

a) On 28

th

March, 1931, one Jivanji Pestonji Goregaonwala

purchased land baring Survey no. 5A, Hissa No.1 (now corresponding to

CTS Nos. 16A, 16A/1 and 16B) admeasuring 1066 sq. yards at village

Chinchavali, Malad (West), Mumbai.

b) By an Order dated 21

st

January, 1953, passed by the Deputy

Charity Commissioner in Application No. BT. 19.14 filed by Jivanji

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Pestonji Goregaonwala raising objections to the existence of the Public

Trust (Dargah), it was held and confirmed that the Public Trust

(Dargah) does exist, and directions were issued to register the said

Public Trust and to issue a certificate accordingly. Pursuant thereto, the

Public Trust came to be registered as ‘Sayyed Khwaja Mohinuddin

ChisteDurgah, Chinchavli’. The said property was brought on record in

the Public Trust Register, Schedule-1, indicating that the property is

public property. In the said Order it was specifically observed that

Muslims come and offer Fatia at the Dargah, and therefore the Muslim

public have a right to visit the Dargah . It was further held that it is not

proved by any independent evidence that the Applicant kept the Dargah

close for a day as alleged and that the Dargah had been made use of by

the Muslim community.

c) A Revision Application was filed by Mrs. Banoobai Cawasji Elavia,

Mr. Homi Cawasji Elavia and Hoshang Dinshwaji Desai before the

Charity Commissioner, Bombay, seeking a declaration that the Dargah

in question is not a Public Trust and that its registration as a Public

Trust pursuant to the Order dated 21

st

January, 1953 passed by the

Deputy Charity Commissioner be set aside, and further, that the Dargah

be declared as a Private Trust. By an Order dated 16

th

August, 1991, the

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Chairty Commissioner confirmed that the Dargah is a Public Trust,

however he corrected the extent of the trust property by reducing the

area from 1066 sq. yards to 24’ x 20’, holding that only the structure of

the Dargah admeasuring 24’ x 20’ forms part of the trust property.

d) In 1992 the entire CTS No. 16/B was acquired for road widening.

Consequently, the balance area of CTS No. 16/A now remained as

admeasuring 527.6 sq. mtrs, and CTS No.16/A/1 remain ed as

admeasuring 191.6 sq. mtrs., including the Dargah land.

e) By a Lease Deed dated 16

th

April, 1992, Defendant Nos. 1 to 3

leased the land bearing CTS No. 16A admeasuring 377.81 sq. mtrs and

CTS Nos. 16A/1 admeasuring 64.69 sq. mtrs to one Noshir Maneckji

Elavia, who thereafter constructed a building thereupon named “Elavia

Manor”.

f) Consequently, the balance area, including the trust property,

remained as follows : CTS No.16A admeasuring 149.79 sq. mtrs and

CTS No.16A/1 admeasuring 127.11 sq. mtrs, aggregating to a total of

276.90 sq. mtrs.

g) By a Lease Deed dated 16 November, 2011, Defendant Nos. 1 to 3

leased land bearing CTS No.16A and 16A/1 admeasuring in aggregate

150 sq. mtrs, i.e., CTS No. 16A admeasuring 83.50 sq. mtrs and CTS

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No.16A/1 admeasuring 66.50 sq. mtrs. to Defendant No.4 for a period

of 999 years on the ground rent of Rs.1 per year. Consequently, the

balance area, including the Trust property, now remained as CTS

No.16A admeasuring 66.29 sq. mtrs and CTS No.16A/1 admeasuring

60.61 sq. mtrs.

h) By a Lease Deed dated 20

th

October, 2012, Defendant Nos. 1 to 3

leased land bearing CTS No. 16A and 16A/1 admeasuring 151.34 sq.

mtrs. i.e. CTS No.16A admeasuring 95.96 sq. mtrs and CTS No. 16A/1

admeasuring 55.38 sq. mtrs, which included the Dargah structure, for a

period of 999 years, at the yearly rent of Rs.1, to Defendant No.4.

i) Mr. Khandeparkar submitted that Ready Reckoner value of the

said land was Rs. 71,83,000/-. Further, he submitted that if, after

execution of the Lease Deed dated 16

th

November, 2011, the remaining

area available was only 126.19 sq. mtrs (including the Dargah land), it

was inexplicable how the lease deed dated 20

th

October, 2012 came to

be executed for an area of 151.34 sq. mtrs, which admittedly included

the Dargah land. Mr. Khandeparkar submitted that the sketch plan at

page 328 of the memo of Appeal, forming an integral part of the said

Lease Deed, specifically acknowledges and admits that the area 151.34

sq. mtrs includes the structure of the Dargah. Mr. Khandeparkar further

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submitted that, in the said Lease Deed, the Defendants, with the

deliberate intent to restrict the rights of the Plaintiffs and other

followers of the Dargah, incorporated a clause to Suit their own

convenience, whereby the entry through the main gate of the demised

premises was permitted to any person only on Thursday between 4 p.m.

to 7 p.m., despite the fact that the Dargah had, at all times, remained

open to the public and its followers throughout the week. Mr.

Khandeparkar further submitted that a condition was also incorporated

to the effect that, under certain circumstances, the lessee would be at

liberty to restrict persons from entering the demised premises.

j) Mr. Khandeparkar also submitted that it had been supressed by

the Plaintiff in Suit No. 3015 of 2014 that the Defendants procured the

appointment of the Appellant (original Defendant No.4) as Trustee of

Sayyed Khwaja Mohinuddin Chiste Durgah, and that Defendant Nos. 1

and 2 subsequently resigned from the said Trust.

k) On 16

th

October, 2014, Defendant No.4 attempted to encroach

upon the Dargah land by making an attempt to put up a new structure

abutting the Dargah. The Plaintiffs and other devotees objected to the

said act, and upon intervention by the police, Defendant No.4 was

warned and restrained from constructing any unauthorised structure.

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l) On 16

th

December, 2014, Short cause Suit No. 3015 of 2014 came

to be filed by Defenant Nos. 1 to 3, as Plaintiffs therein, against the

present Defendant No.4, on the basis of the Lease Deed dated 20

th

October, 2012 purportedly seeking to enforce the illegal terms of the

said Lease Deed. Mr. Khandeparkar submitted that the said Lease Deed

had been prepared with the sole intention of restricting the Plaintiff and

other followers of the Dargah from attending and offering prayers

therein on all days and at all times, as was their customary right.

m) On 20

th

December, 2014, Defendant No.4’s Advocates appeared

before the City Civil Court in the said Suit and admitted the case of the

Defendant Nos. 1 to 3 (who were the Plaintiffs therein). On the basis of

such admission, the City Civil Court granted ad-interim relief in the

terms of prayers clause (b), restricitng the entry of the Muslim

community into the Dargah and prohibiting them from offering prayers

on any date other than on Thursday, between 4 p.m. and 7 p.m.

n) On 17

th

January, 2015, within 30 days of the institution fo the Suit,

Defendant Nos. 1 to 4, acting in collusion, filed Consent Terms

incorporating clauses to the effect that the said Dargah would remain

open on Thursdays between 4.p.m to 7 p.m., that the entry of the

persons into the demised premises would be restricted, that the

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Appellant would provide only a 4 feet wide approach road from the

main gate to the Dargah for access and that the Appellant would

construct a compound wall around the premises.

o) Until 3

rd

February 2015, the routine devotees, including the

Plaintiffs, were attending the said Dargah on a daily basis and offering

prayers regularly. However, on 4

th

February, 2015, in the morning, the

Appellant (original Defendant No.4) forcefully put a lock on the gate of

the Dargah and unlawfully prevented the Plaintiffs and other devotees

from entering the premises to offer prayers and perform rituals, that

they and their ancestors were performing for generations.

p) On 12

th

August 2015, the Respondents, being the original

Plaintiffs, instituted the present Suit against the Appellant (original

Defendant No.4) and others.

q) On 5

th

May, 2016, an ad-interim order came to be granted in

favour of the Plaintiffs in terms of prayer clauses (a), (b) and (e).

r) On 29

th

June, 2016, the Appellant preferred an Appeal from Order

No. 487 of 2016 before this Court challenging the ad-interim Order.

However, the said Appeal came to be disposed of without interfering

with the ad-interim order.

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s) On 15

th

June, 2018 Notice of Motion No. 2156 of 2016 came to be

allowed in terms of prayers (a) to (e).

t) Mr. Khandeparkar submitted that the impugned Order passed by

the learned Judge is legally valid and in accordance with law. The same

clearly establishes that Defendant No.4 has acted in a fraudulent and

collusive manner to usurp the property belonging to a Public Trust and

to deprive the Plaintiffs and other devotees of their fundamental and

civil right to worship at the said Dargah.

u) Mr. Khandeparkar submitted that the property in question forms

part of a registered Public Trust governed by the provisions of Bombay

Public Trusts Act, 1950 wherein there is a complete embargo under

Section 36A against any sale, transfer or lease of trust property without

the sanction of the Charity Commissioner. Admittedly, no such sanction

has been obtained by Defendant No.4, rendering the alleged Lease

dated 20

th

October, 2012 void ab initio.

v) Mr. Khandeparkar submitted that the Consent Decree obtained by

the Defendants is the product of fraud, misrepresentation and

collusion, having been executed behind the back of the Respondents

and without impleading necessary parties. He submitted that as per

Order XXIII Rule 3-A of the CPC any decree obtained by fraud is non

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est in law, void, and not binding upon third parties prejudicially

affected thereby.

w) Further, Mr. Khandeparkar submitted that the Consent Decree is

been used by the Defendants to illegally restrict the entry of devotees

into the Dargah and to obstruct the Plaintiff’s right to worship, which is

a civil right recognised under the law.

x) Mr. Khandeparkar submitted that the Plaintiffs, being devoted

worshippers and followers of the said Dargah, possessed a n

independent civil right to institute a Suit when their right to worship

and religious access is curtailed or infringed. Mr. Khandeparkar

submitted that the Hon’ble Supreme Court in Nar Hari Shastri Vs. Shri

Badrinath Temple Committee (AIR 1952 SC 245) and Deoki Nandan Vs.

Murlidhar (AIR 1957 SC 133) has categorically held that the right to

worship is a civil right, and a worshipper has locus standi to institute a

civil suit to protect such right, even if he is not a trustee or owner of the

property.

y) Mr. Khandeparkar further submitted that the Plaintiffs, being life

long worshippers and devotees of the Dargah, were directly aggrieved

by the illegal acts of the Defendants who have restricted access to the

Dargah and attempted unauthorised construction abutting the Dargah.

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z) Further, Mr. Khandeparkar submitted that the Defendants have

acted in collusion and fradulently obtained the Consent Decree by

supressing the material facts, and therefore the impugned Consent

Decree cannot be permitted to stand. He submitted that the finding of

the Learned Judge is well reasoned and supported by documentary

evidence, including the records of the Charity Commissioner.

aa) Finally, Mr. Khandeparkar submitted that present Appeal is

devoid of merits, filed only to perpetuate illegal possession and to

deprive the devotees of their right to worship. Mr. Khandeparkar

submitted that the impugned Order calls for no interference under

appellate jurisdiction

ANALYSIS AND FINDINGS

6. In the light of the submissions of the learned Advocates for the

parties, I will consider whether the Learned Judge was correct in

granting prayers (a) to (e) of Notice of Motion No. 2165 of 2016.

7. Prayer (a) of Notice of Motion No. 2165 of 2016 seeks a stay of the

Consent Terms filed on 17

th

January, 2015, in Suit No. 3015 of 2015, and

further of the Consent Decree drawn in respect thereof.

8. Suit No. 3015 of 2014 sought the following final reliefs :

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“(a) It be declared by the honorable court that the deed of

lease dated 20.10.2012 is valid, subsisting and binding

upon the defendant and the Defendant has no right to

commit breach of terms thereof particularly clause 3(f)

of the suid Lease Deed

(b) For permanent order and injunction restraining the

defendant, his servants, agents etc. from committing

breach of terms of Lease deed dated 20.10.2012

particularly clause 3(f) thereof.

(c) The defendant, his servants, agents etc. be restrained

from preventing the access of Muslim Community to

Dargah of Sayed Khwaja Moinudin Chisty from offering

prayers on every Thursday between 4 p.m. to 8 p.m. in

any manner whatsoever.”

9. From the prayers in the said Suit No. 3015 of 2014, it can be seen

that the Suit was filed in respect of the Lease Deed dated 20

th

October,

2012, which was in respect of land bearing CTS No. 16A and 16A/1

admeasuring 151.34 sq. mtrs and not only in respect of the structure of

the Dargah. The Consent Terms were filed in respect of that Suit. It is

the case of the Plaintiffs that the Consent Terms are collusive and

fradulent. The Plaintiffs also claim that the area demised by the said

Lease Deed is incorrect. In my view, these are issues which will have to

be decided at the trial of the Suit. At this stage, what I am concerned

with is that the rights of the Plaintiffs in respect of the Dargah are

protected. The Plaintiffs claim to be worshippers and devotees of the

Dargah. By an Order dated 26

th

August, 1991, the Charity

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Commissioner, Maharashtra State, Bombay, held that the Dargah is a

Public Trust and admeasures 24’ x 20’. This Order is final and has not

been challenged by anyone. Therefore, in my view, as long as the

Plaintiffs’ rights in respect of the Dargah are protected (which I have

done by granting other reliefs), the Plaintiffs are not entitled to stay of

the Consent Terms dated 17

th

January, 2015 and the Consent Decree

which also deal with land, apart from the structure of the Dargah, with

which these Plaintiffs have no connection. In these circumstances, the

Plaintiffs are not entitled to prayer (a) of the Notice of Motion.

10. Prayer (b) of the Notice of Motion seeks to restrain the

Defendants from interfering, causing any disturbance and/or

obstruction and/or restraining the Plaintiffs and other followers of the

Dargah from attending the said Dargah, offering prayers, carrying out

or performing their religious functions throughout the day as per their

religious requirements and beliefs and further also seeks a direction to

keep open the gate for ingress and egress to the said Dargah abutting to

the Chincholi Bunder Road.

11. It is not disputed that the Plaintiffs are worshippers and devotees

of the Dargah. Mr. Kanade, the learned counsel appearing on behalf of

the Appellant (original Defendant No.4), has in fact made a statement

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that access will be given to all the worshippers and devotees of the

Dargah throughout the days on all the days.

12. Further, the Dargah has been declared a Public Trust by an Order

dated 21

st

January, 1953 passed by the learned Deputy Charity

Commissioner, who observed that Muslims come and offer fatia at the

Dargah and, therefore, the Muslim public has a right to visit the

Dargah. He further observed that it has not been proved by any

independent evidence that the Applicant kept the Dargah closed for

even a single day, as alleged, to the knowledge of the Muslim

community concerned. He also observed that the Dargah has, in fact,

been made use of by the Muslim community.

13. In my view, in the light of the said Dargah being declared as a

Public Trust and there being no dispute that the Plaintiffs are

worshippers and devotees of the Dargah and that the Dargah also has

other worshippers and devotees, Defendant No.4 has no right to block

access of the worshippers and devotees to the Dargah. In these

circumstances, the Learned Judge has rightly granted prayer (b) of

Notice of Motion No. 2165 of 2016.

14. Prayers (c) and (d) seek to restrain the Defendants from

representing themselves as owners of the Suit Property, seeks to

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restrain Defendant No.4 from representing himself as the lessee of the

Suit property i.e. 151.34 sq. mtrs at village Chincholi, Taluka Borivali,

and further seeks to restrain Defendant No.4 from acting upon the

Lease Deed dated 20

th

October, 2012.

15. In my view, Defendant No.4 cannot be restrained fr om

representing himself as the lessee of the entire Suit property. There is a

valid lease in favour of Defendant No.4 and, therefore, the wide prayers

sought in prayers (c) and (d) cannot be granted. The relief will have to

be restricted to the structure of the Dargah. As held by me hereinabove,

the Plaintiffs, as worshippers and devotees of the Dargah, have rights

only in respect of the Dargah. Therefore, prayers (c) and (d) will have to

be restricted to restraining Defendant No.4 from representing himself

as the lessee of the structure of the Dargah.

16. Prayer (e) seeks to restrain Defendant No.4 from dealing with

selling, transferring, alienating, encumbrancing, disposing of, and

creating any third party rights in respect of Suit property as mentioned

in prayer clause (c).

17. For the reasons given hereinabove, prayer (e) will also have to be

restricted to the Dargah. The Dargah is a Public Trust and Defendnat

No.4 cannot in any case sell or transfer the same without the consent of

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the Charity Commissioner. The Plaintiffs have no right or connection

with the leased land other than the Dargah. Accordingly, prayer (e) will

have to be granted only in respect of the Dargah.

18. In light of my aforesaid findings, I have not considered the

Judgements referred to by the parties.

ORDER

a) Order dated 15

th

June, 2018 passed by the Bombay City Civil

court at Dindoshi, Mumbai is hereby modified.

b) The Plaintiffs will be entitiled to the following reliefs :

i) that pending the final hearing and disposal of the present

Suit, Defendant No.4, his servants, agents, representatives and/or

any persons claiming through or under him, are restrained from

interfering, causing any disturbance and/or obstruction and/or

restraining the Plaintiffs and other followers of the Dargah, either

belonging to the Muslim community or otherwise, from attending

the said Dargah, offering prayers, carrying out or performing any

religious functions throughout the day, as per their religious

requirements and beliefs, and on all days, and Defendant No.4 is

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further directed to keep open the gate for ingress and egress to the

said Dargah abutting to the Chincholi Bunder Road.

ii) pending the final hearing and disposal of the present Suit

Defendant No.4 is restrained from representing himself as the

lessee of the Dargah admeasuring 24’ x 20’.

iii) pending the final hearing and disposal of the present Suit,

Defendant No.4, his servants, agents, representatives and any

persons claiming through or under him are restrained by an order

and injunction of this Court from dealing with, selling, alienating,

encumbrancing, disposing of, and creating any third party rights

in respect of the Dargah admeasuring 24’ x 20’.

c) Appeal from Order is disposed of in the aforesaid terms.

d) There will be no order as to costs.

[FIRDOSH P. POONIWALLA, J.]

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