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Judgment
Ross, J.—This application is directed against an order passed u/s 147 of the Cr.P.C. in favour of the second party. The subject-matter of the litigation was a right of way claimed over land in the occupation of the first party in order that certain Muhammadans should go to worship at a grave on that land which they regarded as the grave of a Peer. The Courts below have found that they had this right of way. But in Niadar v. Tika 9 Ind. Cas. 45 Mr. Justice Karamat Husain observed that "one of the well-settled rules of the Muhammadan Law is that a Muhammadan can not say his prayers on the property belonging to an other without an express or implied permission of the owner of the property." Here the action of the first party in erecting a wall round the land negatives the idea that there is any permission, express or implied, to worship on this land.
It is contended in support of the order that the right which is now n dispute is not the right to pray at the grave, but the right to go over the land to the grave; but, in my opinion, these two rights cannot be separated. It is not an independent rights of way as an end in itself that is claimed: it is a right to go over the land of the first party in order to worship at the grave on that land. If the right to the authority above cited it does not, then the ancillary right cannot exist, and there can be no possession of it.
I, therefore, allow this application and discharge the order of the Courts below.