HASHMAT HUSAIN Vs. INAYATULLAH

JUDGEMENT

(1.) This second appeal by the defendants came up before a learned single Judge of this Court and he has referred it to a Division Bench. It raises an interesting question of law as to whether the plaintiffs-respondents who claimed the disputed land as their private or family grave-yard would be entitled to seek relief for injunction when they are out of possession and when the defendants have been in possession and have made certain constructions over part of the land. The trial Court was of the opinion that that land is not a grave-yard and that in any event the present suit for injunction was not maintainable as the plaintiffs were clearly out of possession and they ought to have sought relief for possession, The lower appellate Court on the other hand, came to the conclusion that this was the family grave-yard of the plaintiffs and that for the protection of the graves from being desecrated which are thirty in number, the plaintiffs were entitled to a relief for injunction restraining the defendants from making in future any construction over this land. The lower appellate Court did not direct demolition of the constructions nor did it consider the question as to whether the plaintiffs ought to have prayed for relief for possession.

(2.) The suit which was filed in representative capacity under Order 1, Rule 8 of the Code of Civil Procedure was for all practical purposes not pursued as such, because from the record we are unable to find that the neces- sary notices were published or issued in accordance with the rules so as to confer upon the decision a representative character. In any event having regard to the provisions of Order 1, Rule 9 of the Code of Civil Procedure, we have to consider the claims of the contending parties who are before the Court because Rule 9 provides that no suit shall be defeated by reason of the misjoinder or nonjoinder or parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It is therefore upon that rooting that we proceed to examine the matter.

(3.) The defendants contended that this property was the private property of Jarrar Ghaus defendant who had transferred it to the other defendants by a sale deed dated 7th of February, 1946. They contended that in the year 1936 the rights of Jarar Ghaus had been invaded and interfered with by Rahim Bux and others (not parties to the present suit), who claimed it to be a grave-yard and that this led to Suit No. 228 of 1936 by Jarar Ghaus against Rahim Bux and others and in that litigation Jarar Ghaus in Civil Appeal No. 269 of 1936 obtained the relief that it is still the private property of Jarar Ghaus and he was entitled also to the other reliefs that were granted to him. It appears that when that case was fought out there existed three graves over this land. During the pendency of the present suit a commission was issued and the commissioner prepared a report and map in which he indicated that there are at present thirty graves over it. That report was made the subject of criticism by the Courts below. But the view that was taken by the lower appellate Court was to the effect that, in fact, there exist thirty graves over this land. The existence of so many graves over part of the disputed land might confer upon that area the nature and status of a grave-yard. But the question would still be, is it the private grave-yard of the plaintiffs? And the question would again be that even if it is the private grave-yard of the plaintiffs, can the plaintiffs get relief for injunction when they are admit tedly out of possession and the defendants are in possession and have made constructions over the open piece of land adjacent to the grave-yard? It has been argued by Mr. B. D. Gupta that the plaintiffs being beneficiaries of a trust or wakf which the grave-yard must assume for its character, it was not necessary for the beneficiares to seek relief for possession and that injunction was the proper relief. It has further been argued by Mr. Gupta that Section 56 (i) of the Specific Relief Act has got no application to the present suit and that equally efficacious remedy could not have been envisaged by his clients by making a relief for possession in the same proceeding.