JUDGMENT S.D. Singh, J. - These two appeals arise out of two suits which were decided by the Munsif under the same judgment and first appeals arising out of which were also heard and decided by the Civil Judge under one judgment. The dispute in the two appeals relates to Khanqah and Mazar chiragh All Shah at Santhal in Tehsil Mawabganj, district Bareilly. Abdul Razzaq All Shah was the last sajjadanashin of this khanqah. He died sometime in 1931. Two persons Abdul Haq, the respondent, in these two appeals and Wajah-ul:Karim, the appellant, came forward as rival claimants for this office. Each one of them contended that he was nominated as such by the last sajjadanashin, Abdul Razzaq Ali Shah. Suit No. 484 of 1953 was filed by Wajahul Karim, the appellant in these appeals against Abdul Haq and two other defendants asking for an injunction restraining the defendants from interfering with the discharge of his duties as sajjadanashin. Suit No. 734 of 1953 was filed by Abdul Haq against Wajah-ul-Karim and two others with a similar prayer. The allegations made in the two plaints by these two rival claimants provided their defence in the suit filed by the other. 2. The Munsif held that Wajahul-Karim was not nominated sajjadanashin by the last holder of that office and his suit was subsequently dismissed on that ground. In connection with the suit filed by Abdul Haq, it was held that he was nominated as sajjadanashin and that consequently he was entitled to the relief asked for by him. The contention of Wajah-ul-Karim against the appointment of Abdul Haq is that he was a minor when the appointment was made and the appointment of a minor as mutawalli or sajjadanashin was invalid in law. It was held by the Munsif, however, that a minor could be appointed Mutazvani or sajjadanashin and that Abdul Haq's appointment was consequently not vitiated on that account. Another plea raised by Wajah-ul-Karim was that Abdul Haq was not in possession and could not, therefore, ask for an injunction. The Munsif held that Abdul Haq was net in possession, but he was of opinion that that circumstance did not disentitle him to claim the relief of injunction as prayed for by him. Abdul Haq's suit was, therefore, decreed. Another plea raised by Wajah-ul-Karim was that Abdul Haq was not in possession and could not, therefore, ask for an injunction. The Munsif held that Abdul Haq was net in possession, but he was of opinion that that circumstance did not disentitle him to claim the relief of injunction as prayed for by him. Abdul Haq's suit was, therefore, decreed. Wajah-ul-Karim went up in appeal in both the suits, but the appeals were dismissed by the first appellate court, and hence these second appeals by him. The finding that Wajah-ul-Karim was not appointed or nominated as sajjadanashin by Abdul Razzaq Ali Shah is a finding of fact and cannot be challenged in second appeal and no attempt was in fact made on behalf of the appellant to do so. That being so, Second Appeal No. 2154 of 1955 which arises out of Suit No. 484 of 1953 has no force and is liable to be dismissed on that account. 3. The appellant, however, pressed the other appeal and raised the following two questions during the hearing of the same :- (1) that Abdul Haq being a minor could not have been nominated sajjadanashin and that no custom or practice in respect of this Khanqah having been established by Abdul Hay, he could not be so nominated even in pursuance of such a custom or practice. (2) that the property attached to the Khanqah being in his possession, the suit filed by Abdul Haq for mere injunction could not be decreed. In holding that a minor could be nominated sajjadanashin, the Civil Judge has relied upon two decisions of the Lahore High Court reported in Diwan Ghulam Rasul v. Ghulam Qutab-ud-Din, AIR 1942 Lahore 142 and Ghulam Mohammad v. Abdul Rashid, AIR 1933 Lahore 905 An earlier case of the Calcutta High Court reported in Piran v. Abdool Karim, I.L.R. XIX Cal. 203 was also cited before the Civil Judge but was not followed by him and it was pointed out that this case was distinguished in Diwan Ghulam Rasul's case, AIR 1942 Lahore 142 aforesaid. 4. The question for decision in this case is as to the exact law by which the appointment of a Mutawalli or sajjadanashin in cases like this is to be governed. 4. The question for decision in this case is as to the exact law by which the appointment of a Mutawalli or sajjadanashin in cases like this is to be governed. The Civil Judge has referred to the application of the principles of Sufism in relation to the nomination of a sajjadanashin, but it is difficult to understand on the basis of what material he has inferred that the decision in these cases would be governed by the principles of Sufism. The contention on behalf of Wajah-ul-Karim has been that the case would be governed by the principles of Mohammadan Law and that there was no question of the application of any principles of Sufism in the decision of these cases. It was for Abdul Haq, therefore, to show that such principles should apply, but there is not a word in the pleadings of Abdul Haq in either of the two suits indicating that the parties or in any case he or the previous sajjadanashin or the founder of this Khanqah was a Sufi. No law was cited indicating that in cases of Khangahs and Mazars, the Muslim Law as interpreted by Sufi saints or the law as applicable to those belonging to that sect has to be applied, though in some cases there is a reference of the application of such principles to these cases. The law relating to the appointment of Mutawallis or sajjadanashins is to be found stated in almost all the text books, but I would refer to only two of them: Mohammadan Law by Sir Amir Ali, 1912 Edition, and Principles of Mohammadan Law by Sir D.F. Mullah, 1955 Edition. The appointment or nomination of a sajjadanashin or a mutawalli has been discussed in both the treatises at one place as if there is no difference in their appointment or nomination. The discussion on page 444 of 1912 Edition of Amir Ali's Mohammadan Law starts with the sentence :- "Accordingly, the appointment of a child of tender years as sajjadanashin would seem to be opposed to the constitution of the office." 5. Then follows an instance in which a boy of 9 or 10 years was appointed sajjadanashin by the East holder of the office, but it is pointed out that in that case the office was hereditary in the family and apparently there was, no other member qualified to perform the spiritual duties. Then follows an instance in which a boy of 9 or 10 years was appointed sajjadanashin by the East holder of the office, but it is pointed out that in that case the office was hereditary in the family and apparently there was, no other member qualified to perform the spiritual duties. The law is then stated in the following words :- "The appointment of a.sajjadanashin of a dargah must, to a large extent, however, be regulated by the practice followed in the particular dargah or neighbouring dargahs." On page 445, the learned author says :- "In the absence of any provision in the trust-deed as to the mode of succession, or of any evidence of usage, the mutwatii may on his death bed, nominate his successor, and such nomination will be valid without any judicial order. But in order that the nomination may be effective, it is necessary that the person so appointed should be adult and possessed of understanding. All the authorities are agreed that a minor cannot lawfully be appointed a mutawalli. 6. A reference is then made to Fatawai Alamgiri which prescribes a condition for the validity of the appointment of a mutawalli that he should be adult and possessed of understanding and then to Raddul-Muhtar, which prescribes the condition necessary to the validity of the appointment as puberty and understanding. 7. The law as stated in this treatise, therefore, is that normally a minor cannot be appointed Mutawaltt or sajjadanashin, unless it is permitted by the practice of the particular khanqah or neighbouring khanqahs. The law on the subject is stated in Principles of Mohammadan Law by Sir D.F, Mullah in Secs. 203 and 204. According to sub-paragraph (2) of Sec. 203 "Neither a minor nor a person of unsound mind could be appointed Mutawalli" 8. The functions of a sajjadanashin were discussed by Amir Ali J. as he then was, in Piran v. Abdool Karim, I.L.R. XIX Cal. 203 where he says that he is not only a Mutwalli but also a spiritual preceptor. According to sub-paragraph (2) of Sec. 203 "Neither a minor nor a person of unsound mind could be appointed Mutawalli" 8. The functions of a sajjadanashin were discussed by Amir Ali J. as he then was, in Piran v. Abdool Karim, I.L.R. XIX Cal. 203 where he says that he is not only a Mutwalli but also a spiritual preceptor. A sajjadanashin is thus a Mutwalli plus something else; and even if, therefore, it is said that reference in the text is to the Mutwalli when they speak of the disability of a minor being nominated to that office that condition will have to be satisfied even in the case of a sajjadanashin, inasmuch as sajjadanashin is also a Mutwalli, though he is also a spiritual preceptor. As a matter of fact, if a minor cannot be trusted with the discharge of duties of a Mutwalli, it is much less likely that he would be able to discharge the obligations or duties of a spiritual preceptor. 9. In Piran v. Abdool Karim, I.L.R. XIX Cal. 203, aforesaid, it has been clearly laid down that a minor cannot be appointed sujjadanashin of a dargah or a mazar. This case was distinguished in Diwan Ghulam Rasul v. Ghulam Qutab-ud-Din, AIR 1942 Lahore 142 on the main ground that that case was not dealing with a case of succession to a shrine governed by the doctrine of Sufism. But if the view taken in Piran v. Abdul Karim, I.L.R. XIX Cal. 203 is to be distinguished on that ground alone, the view taken in the Lahore case would not apply to the instant case on that very ground, namely, that the instant case is one in which there is no allegation, much less evidence that the shrine is governed by the doctrine of Sufism. The contention that all Khanqahs and Mazars are to be governed by the principles of Sufi law is also answered by the distinction made in the Lahore case, inasmuch as Piran's case, I.L.R. XIX Cal. 203 also related to a Khanqah or Mawr and if that case could be governed by Muslim law unaffected by the principles of Sufism, it would necessarily follow that the latter principles cannot be applied to the facts of a particular case, unless there is a clear allegation to that effect in the pleadings supported by evidence, if need be. 203 also related to a Khanqah or Mawr and if that case could be governed by Muslim law unaffected by the principles of Sufism, it would necessarily follow that the latter principles cannot be applied to the facts of a particular case, unless there is a clear allegation to that effect in the pleadings supported by evidence, if need be. There is, therefore, no reason why, in the absence of any allegation that the Khanqah in this particular case was governed by the principles of Sufism, the law laid down in Piran v. Abdool Kartm, I.L.R. XIX Cal. 203 may not be adopted. 10. Even the Lahore view taken in Diwan Ghulam Rasul v. Ghulam Qulab-ud-Din, AIR 1942 Lahore 142 only goes to this extent that the custom of a particular shrine may be applied to it in considering the question of the nomination of sajjadanashin, and as will be presently shown no such custom or practice has been made out by Abdul Haq. 11. Two other cases were relied upon by the learned counsel for the appellant, namely, Kaniz Zohra v. Syed Murtava Husain, AIR 1923 Patna 576 and Syed Hasan Raza Sahib Shantshul Ulama and two others v. Mir Hasan Ali Sahib, I.L.R. XL Mad. 941. In the Patna case, it was held that where the succession is not by inheritance but by an appointment or selection, a minor cannot be appointed as mutawalli. In the Madras case also, it was held that the election of a minor as a mutwalli was ab initio void. 12. The position therefore is that if a particular practice is shown to have been followed in a Khanqah or neighbouring Khanqahs, that practice would regulate the nomination of a sajjadanashin. But if there has been no such practice or no such practice is established by evidence, the general Muslim law will apply. 13. In considering the question whether any particular practice has been made out in this case, the learned Civil Judge has written a judgment which is, to say the least, extremely unsatisfactory. He has not taken the trouble of studying the evidence produced by the parties in the case and has in an extremely slipshod manner made a passing reference to the evidence with a view to accept what was being contended by Abdul Haq. He has not taken the trouble of studying the evidence produced by the parties in the case and has in an extremely slipshod manner made a passing reference to the evidence with a view to accept what was being contended by Abdul Haq. He has first referred to the statement of some of the witnesses who were examined on behalf of Wajih-ul-Karim and discarded their evidence. No exception may be taken to that part of the judgment, though even that discussion is not satisfactory. On coming to the evidence of Abdul Haq, which the Civil Judge was going to accept, all that he stated is "On the other hand some of the D.Ws. have stated to the contrary. At any rate, I do not find that there is any such custom or usage under which a minor cannot be nominated as sajjadanashin." 14. The Civil Judge forgot that the general Muslim Law is that a minor cannot be nominated as a Mutawalli or sajjadanashin but if any exception is to be made out, it is for the party who want to set up that exception to prove the same. It was for Abdul Haq, therefore, to lead positive evidence that according to the custom prevalent in respect of this Khanqah or the neighbouring Khanqahs a minor could be nominated as sajjadanashin. To the extent the evidence was referred to before me, reference to this part of the case has been made by only two witnesses for Abdul Haq, namely, Abdul Aziz (D. W. 1) and Amir Ali Shah (D.W. 7). They make a general statement of law that a minor can be appointed sajjadanashin. This is no evidence at all. No witness can be permitted to state the law. What has to be established in evidence is the particular practice or the custom which is sought to be made out. There is nothing in the statements of these two witnesses to show that any minor was ever appointed sajjadanashin in respect of this particular Khanqah, and there is little evidence on that point even in relation to the neighbouring Khanqahs. It cannot therefore be, said that Abdul Haq succeeded in making out an exception to the general Muslim Law on this point. It cannot therefore be, said that Abdul Haq succeeded in making out an exception to the general Muslim Law on this point. If no particular practice in respect of this Khanqah or .the neighbouring Khanqahs was made out, the view taken in Diwan Ghulanz Rasul v. Ghulam Qutab-ud-Din, AIR 1942 Lahore 142 would not be applicable. 15. The position, therefore, is that under the general law, a minor or a person who had not attained puberty could not be appointed sajjadanashin and the alleged nomination of Abdul Haq was, therefore, invalid in law. That being so, even Abdul Haq's suit was liable to be dismissed. 16. It was contended on behalf of the respondents that Abdul Haq may have been a minor when the suit was filed or the alleged nomination was made, but he has attained puberty or majority now and is able to discharge the functions of a sajjadanashin. We are concerned in this case, however, with the initial appointment of Abdul Haq as sajjadanashin. If he has attained puberty or majority and if he now secures his nomination or appointment as sajjadanashin that would be a different matter. He may after such appointment by person or persons who may have the authority to do so, be entitled to claim the same relief again, but his present suit is bound to be dismissed. 17. Second Appeal No. 2154 of 1955 is dismissed. Second Appeal No. 2155 of 1955 is allowed. The judgment and decrees of the two courts below are set aside. The suit filed by Abdul Haq will stand dismissed. Parties agree that in view of the orders passed in the two appeals, they may be made to bear their own costs. Ordered accordingly.