JUDGMENT
1. It appears that in Qasba Gangoh in the district of Saharanpur it has been customary to hold on Dasehra day and on Chait Sudi Ashtami ceremonies in honour of Shakamber Devi. The pucca chabutra on whish these ceremonies are celebrated is situate within some 40 feet of a Muhammadan mosque. There is no evidence as to the antiquity of these two ceremonies, but at all events they were being tarried on is 1900, and probably long before. Some disputes arose between the Hindus and Muhammadans, because the Muhammadans alleged that the Hindus made a noise with drums, with shells, with bells and other musical instruments and disturbed the Muhammadans at a time when they were saying their prayers at the mosque. The Hindus claimed a right to do what they said they had always hitherto done and in that way there arose bad feeling between the two communities. In 1901 the matter got into the hands of the Police and on the 19th of November at that year it was agreed between representative Hindus and Muhammadans that the drams, shells or bells would not be sounded at the time of the Maghrib and Isha prayers. On the 28th of November 1902 the dispute broke out afresh and on that day, again in the Magistrate's Court, it was agreed between the Hindus and Muhammadans that the previous agreement of 1901 should be maintained and that music should be stopped for the half hour fixed for the Isha prayer. On the 18th of October 1909 disputes having again arisen between the two communities Mr. Cook, the District Magistrate, recorded an agreement that the Hindus would abstain from music, arti ceremonies and any noise which might disturb the worshippers at the Tankon mosque between the hours of 6 and 6.30 and between 8 P.M. and 8.30 P.M., those being the -hours of the. Maghrib and Isha prayers. It is important to stop here for a minute and consider what effect these agreements had, First of all, it should be remembered that the Hindus were claiming an absolute right to make as much noise as they liked during the whole of the 24 hours on these two days in question. To that the Muhammadans objected limiting their objection to the Maghrib and Isha prayer time. The matter name into Court and certainly in 1901 the Hindus would have been entitled to take their stand on what they alleged to be their strict legal rights and fight the matter out. So also would the Muhammadans be entitled to tight the matter out--that is, to allege and prove that the conduct of the Hindus was an infringement of the legal rights of Muhammadans. When, however, I both the parties were face to face in Court they arrived at a compromise, and it is a remarkable thing that whereas we believed this case to be a very simple one, the Judge appears to have thought it to be a matter of great complexity and indeed a matter which required him to take some 6 or 7 months' consideration for his judgment. When the Hindus and Muhammadans left Court on the 19th of November 1901, the position was that the Hindus had definitely altered their position in law and had voluntarily bargained away for good consideration part of the claim which up till then they had maintained. In other words, instead of fighting this matter out to a conclusion they agreed to keep quiet during Maghnb and Isha prayers. The Muhammadans, on the other hand, said in effect that inasmuch as they had that concession from the Hindus, they were prepared to withdraw their complaint. When one looks at the names of the persons who were signatories to the proceedings before the Dictriat Magistrate, one sees that they were representative Hindus and representative Muhammadans. In the same way in 1902 the Hindus made the position still clearer; and in 1909 although the text of that agreement when carefully read shows that it was only an agreement for that particular forthcoming ceremony on October 26th, it was nevertheless an agreement in entire consonance with the agreement of 1901. It seems to us that neither the plaintiff advisor nor the Judge in the Court below really understood the legal effect of the compromise of 1901. Its effect can be made clear by a very simple illustration. Suppose A claims a right over his land of walking on foot, riding on horse, driving a horse drawn vehicle, or motor car. B denies that right and says that the only right A has is to proceed on foot or on a horse but he (A) has no right to take wheeled vehicles over his land. The parties come into Court prepared to fight it out. A (like the Hindus who claimed a full right during the whole 24 hours) has claimed the full exercise of all means of locomotion over B'a land. They compromise--and the compromise that is made is that A should be allowed as hitherto to walk or to ride over B'a land and to take a horse drawn vehicle but shall not take a motor car. That agreement having been duly come to in Court, there being complete consideration to that agreement, namely, the compromise of a suit, it would be impossible for A thereafter to contend that his right of way was on foot, on horse back, by horse drawn vehicle and by motor car--that is, to claim a declaration of the rights which he bad originally claimed. That is exactly what the plaintiffs have done in this case. Having; entered into a binding agreement by which they struck off certain rights, whit, they alleged they had, in consideration of proceedings being brought to an end, they cannot thereafter allege the continuing existence of those rights. We are, therefore, of opinion that the declaration as drafted is one which cannot, be granted, and with some reluctance bat with a. view to endeavour to put an end to these unhappy communal quarrels, we are going to declare what are the rights of the Hindus, The declaration to which they are entitled is as follower That the Hindu? have a right to perform on Dasebra days and on Chait Sndi Ashtami the worship of the Devi and Chhari Devi by means of arti and by playing upon musical instruments, by beating the naqqara and by blowing washes and ringing bells at all hours of the two days save and except between 6 P.M. and 6.30 P.M. and 8 P.M. and 8.30 P.M. As regards the claim that a perpetual injunction may issue against the defendants to the effect that on the days mentioned they (the Muhammadans) should not interfere with the Hindus in the performance of Puja, we have pointed out that there is no evidence which justifies any allegation that the Muhammadans here so interfered. Both claims 24B and 240 ask for the extraordinary discretionary remedy of injunction. The lower Court did not apply its mind to the principle which governed the issuing of an injunction, before an injunction can be granted, the applicant must establish a legal right. He must then show an actual or threatened invasion of that legal right by the particular person ageist whom he wishes to claim an injunction, and he must give evidence which justifies the Court in thinking that there iv a real substantial likelihood that the wrongful act complained of or apprehended will be repeated or done unless restrained by the Court, The evidence was not prepared in a way to bring those matters out and the Judge seems to as to have granted the injunction in both instances in a very perfunctory way. We are of opinion for the same reasons that we cannot grant an injunction directing the defendants, not to interfere with repairs of the chabutra. But we think it is desirable again, for the purpose of preventing further litigation and ill-feeling, that we should define what we are prepared to hold are the rights of the Hindus. There is no doubt there has been for a long period of time a chabutra on the site in question. The plaintiffs say that they wish to repair the chabutra. There can be no question that they have a right to repair the chabutra and nobody ought to interfere with them when they are doing that. They also wish to fix railing round it: by that we understand the ordinary railing which will be imbedded in the chabutra itself. Nobody has a right to interfere with the plaintiffs if they wish to do so. It is then said that they wished to make it higher. No evidence appears to have been given as to the height to which they proposed to raise it and nobody appears to have thought that a singular omission, and, therefore, all that we can say with our limited knowledge of the position of the chabutra and of the morque is that it would not appear that the Hindus would be infringing any rights of light or air or causing any obstruction to the Muhammadans if they raised the chabutra itself, which is only 4½ feet high, to a reasonable height.
2. This case has been quite properly described by one of the Counsel concerned as a trivial matter, a quarrel over nothing, the whole case involving nothing serious or tangible. That description has the assent of the other Counsel and certainly meets with our ready acquiescence. We think it a regrettable circumstance that a matter of this kind should have been litigated in Court. On the one side the Hindus might well have shown some consideration for the Muhammadans and voluntarily have abstained from beating the drum and making distracting noises during the 2½ hours in question. On the other hand we cannot shut our eyes to the fact that the Muhammadans themselves might have done what Would have been a gracious thing and allowed to the Hindus the free use of the open space (maidan) for the two days during the year and done their worship on those days at other mosques.
3. Having regard to the fact that the plaintiffs asked for a declaration, far-wider than they were entitled to obtain and that they also asked for two injunctions as to which they accused no proper evidence on which an injunction could be granted, we are of opinion that they must pay the costs of this appeal and also the costs in the Court below.
4. In the result, therefore, we vary the decree of the Court below by substituting the declaration given above for the declaration granted by the Court below. We reverse the Court below and dissolve the two inhumations granted by it and we declare that as regards the chabutra the Hindus have a right to repair the same, to is a railing upon it and to raise its height to a reasonable extent, but not to a height which infringes any right to light, air or assess enjoyed by the Muhammadans or any other parsons. The respondents must pay the costs of the appellants here and below, with fees in this Court on the higher scale. The objections filed on behalf of the respondents are dismissed.