MOHIDEEN KHAN Vs. MAJID KHAN

JUDGEMENT

(1.) The defendants are the appellants in this Second Appeal against the decree of the Subordinate Judge of Nellore reversing the decree of the District Munsif and declaring that 35 ankanams of site and structures in Nellore town described in the plaint were wakf property of the family of the plaintiff and defendants 1 and 2 and restraining defendants 1 and 2 by a permanent injunction from disposing of the property as their private property. One Suleman Khan died in 1911 leaving two sons, the elder of whom Abdul Harneed died in 1946 and the younger is the plaintiff. Suleman Khan had a brother Mustafa Khan whose sons were Ghulam Ghouse and Gulam Mohideen. Ghulam Mohideen and Abdul Khader, the son of Ghulam Ghouse arc defendants 1 and 2 respectively. The 3rd defendant is a tenant under defendants 1 and 2 of a house situated on the site described in the plaint. The Plaintiff's case was that the suit site was a family cemetry and was being used as such by his ancestors, having been dedicated as a wakf, and that it was therefore inalienable. The defendants denied the dedication of the site or its user as a graveyard by the members of the family and pleaded that it was private property that had descended to them by heirship from their ancestors. The District Munsif decided that the site had not been proved to be wakf property and finding that the plaintiff had neither title to nor possession of the property, he dismissed the suit. On appeal the learned Subordinate Judge came to the conclusion that the suit property was a wakf dedicated and used as a grave yard, that the defendants had not acquired a title by adverse possession and'that the plaintiff was entitled to a decree in the terms set out above.

(2.) The following facts emerge from the evidence and the findings of the lower appellate court. The site has not been used as a graveyard for half a centrury preceding the suit. It is possible that municipal regulations prohibiting burial of the dead in places not specifically set apart for that purpose, might have been responsible to some extent for the absence of burials in the site in recent years. In the town Survey Record of Nellore prepared in 1919, the site stood registered in the name of Suleman Khan, the plaintiff's father, as owner and there is no reference to this property as a burial ground. The property had been leased from time to time, the plaintiff himself admitting a lease by him to a non-muslim in Ex. B-1. Defendants 1 and 2 leased the site to one Ghulam Ghouse who built a house thereon and subsequently sold the house to the lessors. Exs. B-2, B-3 and B-4 of the year 1932-1933 show that the house was registered in the municipal House Property Registers as Municipal Door No. 394. in the name of the second defendant's father as owner. The municipal door number of the house was subsequently changed to No. 557/1 in 1936. If the property had been a graveyard, municipal housetax would not have been levied or paid but the Municipal Tax Register, Ex. B-13 and the tax receipts Exs. B-8 to B-11 show payment of municipal tax. Ex. B-5 dated 10-2-1944 was a lease of the property by defendants 1 and 2 to the 3rd defendant for a period of 5 years. Ex. B-12 dated 30-8-1949 was another lease to him. As regards the use to which the suit site has been put, there are no tombs found on the site. P. W. 2 an old man of 75 years, stated that there were one or two burials in the site within his knowledge. P. W. 4 also a man of 73 years, started by saying that the Pathan brothers (evidently referring to the fathers of the plaintiff and the first defendant) were living in the locality and burying their dead in the site but later on admitted in cross-examination that he could not say whether he had seen any burial in the-suit land. In re-examination he stated that he witnessed two burials. This is all the evidence about the user of the site as a place of burial. Even the plaintiff states that the place is a family graveyard, the public having no right of burial therein. The fact that a Mahomedan chose to bury the body of one or two members of his family in his garden or compound in the last centuryand that is the utmost that could be said to have been established in the case would not make the property wakf property inalienable for all time. The evidence relating to the user and enjoyment of the property to which reference has been made above tells the other way. There is no evidence, documentary or oral, of the dedication of the site as a graveyard. In Lakshmidar Misra v. Rangdal , the Judicial Committee, dealing with a right of cremation claimed by the inhabitants of a village over the land of another observed :

(3.) Therefore there is no possibility of a dedication in the present case. The Judicial Committee also negatived the possibility of a lost grant in cases like the present on the ground that the persons claiming to be grantees, whether original or by devolution, were not such as were capable of being the recipients of a grant. These principles were followed by the Supreme Court in Braja Sundar Deb v. Moni Behara , and by one of us in Alikhan Sahib v, Venkatarama Navya . In Court Of Wards v. Hahi Baksh . The Judicia! Committee held that though there is no public dedication, the user of the land, as a Mohamedan burial ground, for a long time would itself make the land wakf land. In that case there was a considerable body of evidence including entries in the record of rights that the land had been used, from time immemorial by the Mahomedan community, for the purpose of burying their dead and on that evidence, it was held that it formed part of a graveyard set apart for Mahomedans, and by user, if not by dedication the land was wakf. The entry in the record of rights was treated as conclusive on the point. That a wakf may be proved by long user has been recognised in subsequent decisions of the High Courts. Mehraj Din v. Hakin Ali Mehar Din v. Hakim Ali Abdur Rahim v. Jakir Mahomed In Ramzan Mohin v. Dasarath Rant., it was recognised that if land had been used from time immemorial as a Moslem burial ground the land is constituted wakf though there may be no evidence of express dedication. In Saiyed Mazaar Husain v. Adiya Satan Singh . the Judicial Committee while holding that there was no waqf-nama or any evidence of oral dedication observed :