SKH BASHIR AHMAD Vs. SKH ABDUL JABBAR

JUDGEMENT

(1.) This appeal arises out of a representative suit under Order 1, Rule 8, Code of Civil Procedure by the Mahomedan residents of throe villages, namely, Saraiya, Hathaura and Kharsanda, in the district of Saran. The case of the plaintiffs was that revisional survey plot. No. 296, measuring 2 bighas 1 katha and 3 dhurs, under Khata No. 468, originally was a public graveyard and the Muslim residents of these villages had the right to use It as a public graveyard for these villages. The mango trees standing on this land also were the properties of the Mahomedans in general. There was also a prayer for permanent injunction restraining the defendants from going to the Sand and cultivating it or appropriating the fruits of the trees standing on that land. It was alleged further that the mango trees were planted in the graveyard by the Muslim community for the purpose of providing shade and utilising the wood for the purpose of planks to be used in the graves. Defendant No. 8 who belonged to the family of Fakirs of village Kharsanda, and his family were the care-takers of the graveyard which was standing thereon. They had also a right to get certain shares in the fruits of the mango trees by way of wages. Defendants Nos. 1, 6, 7 and 8 were in collusion with one another and objected to the right of the plaintiffs to use that plot of land as burial ground, which led to a proceeding under section 1-14, Code of Criminal Procedure, in 1957. In course of the proceeding under section 144, Code of Criminal Procedure, the plaintiffs learnt that defendant No. 8 got his name recorded fraudulently as bataidar in respect of the graveyard land. During the cadastral survey proceedings, Hussaini Darzi, and during the revislonal survey proceedings, defendant No. 7, were recorded as Kastkars at the instance of defendant No. 8 and his ancestors. In fact, however, neither defendant No. 7 nor defendant No. 8, nor their ancestors were the kastkars of the land. The plaintiffs were completely ignorant of the entries in the cadastral as well as revisions survey khatians. The entries, both in the cadastral and revlsional survey khatians were incorrect. The plaintiffs learnt further that during the pendency of the 1.44 proceedings, defendant No. 7 executed a sale deed without any consideration in favour of defendants Nos. 1 to 6, transferring this plot with a view to create evidence of his title and possession. The purchasers, defendants Nos. 1 to 6, were trying to raise the crop on the land after demolishing the graves. The purchasers, however, acquired no title as it was a public graveyard. The proceedings under section 144, Code of Criminal Procedure, were dropped and defendants Nos. 1 to 6 feeling encouraged began to object to the burial of the dead bodies of Mahomedans in that plot.

(2.) Defendants Nos. 1 to 6 filed one set of written statement and defendant No. 7 filed another, but, in substance, the written statements were along the same line, challenging the right of the plaintiffs to have this plot of land treated as public graveyard. According to their case, plot No. 296 was not a common graveyard of the Mahomedans and it never became the wakt properly by user. They also challenged the right of the Muslim public of the locality to claim any interest in the trees standing on the land as public properly of the Mahomedans. The entries in the khatians were corrcel and defendant No. 8 was the britdar of the plot. The father of defendant No. 7 was in cultivating possession of this land and. as such was entiled to receiving half the produce. The other half was deliverable to defendant No. 8. The other statements in the written statement need not be set out as they are not of material importance. The State of Bihar (defendant No. 9) also supported the stand of defendants Nos. 1 to 6 who claim to have acquired a valid title under the sale deed in question. Defendant No. 8, however, in substance, supported the claim of the plaintiffs and averred that he had been unnecessarily dragged into this litigation and that he had no concern with that land.

(3.) It may be stated that the finding of fact recorded by the trial Court is that although the plaintiffs failed to prove that it was a public graveyard from time immemorial but nevertheless plot No. 296 was a public graveyard meant for burying the dead bodies of Muslims of the aforesaid three villages by virtue of dedication of the plot for the purpose and it became a wakf property. The plot was no doubt, recorded in the revisional survey proceedings, which took place in 1919, duly in the name of Subhan but the evidence of the plaintiffs' witnesses as also the report of the pleader commissioner indicated that a large number of graves were found in this plot. According to the same pleader commissioner, there were as many as forty five graves which were visible and the structure on them was conspicuous, but there were other sunk graves which obviously meant that they were kutcha graves having only earth work which might have gone down on account of rain or other factors in course of time, but they were nevertheless visible. They were 126 in number, so that altogether there were 171 graves visible on the plot. The trial Court, taking into consideration the evidence of the pleader commissioner as also the evidence of the plaintiffs' witnesses including that of the grave digger (P. W. 7), held that there was sufficient evidence of dedication of this plot by conduct to be used as a graveyard and thus it became a wakf property. On appeal, the findings of fact recorded by the trial Court were substantially affirmed and the decree passed in favour of the plaintiffs was upheld.