LALA JHAO LAL Vs. AHMUDULLAH

JUDGEMENT

(1.) THIS is a second appeal from the decision of the learned District Judge of Moradabad. The plaintiff is a zamindar; the defendants are Mahomedan tenants. The plaintiff brought a suit for a declaration that a certain plot was not a graveyard and he asked that the plot should be delivered up to him after removing the graves and he prayed for an injunction to this effect. The trial Court came to the conclusion that the plot was a graveyard, but directed that the bodies of the deceased Mahomedans should be buried as closely as possible together and also directed that a tomb stone, which had recently been erected over a grave should be removed. The learned Munsif in the trial Court apparently thought that the zamindar had a right to graze his cattle upon the graveyard; that a license or grant of a plot for use as a graveyard was a license or grant only to bury and that nothing could be done in the graveyard in interfering with the zamindar's right of grazing cattle upon the graves. The lower appellate Court however dismissed the whole suit. The learned Judge came to the conclusion that the whole plot was a graveyard and that it was a graveyard from time immemorial.

(2.) THE plaintiff appeals. THE learned District Judge has gone into this question with great care and has written an exhaustive judgment. His findings are perfectly clear and I agree with them. Apparently most of the graves are on one side of the plot; but there are some graves upon the other side of the plot. THEre is no doubt that the plot, which has defined boundaries, is a graveyard as a whole. Learned Counsel for the appellant here has confined his argument to the question whether the tomb stone ought to be allowed to remain to interfere with the right, which he contends the zamindar has, of grazing his cattle upon the graveyard. THEre is no authority for the proposition that a license to bury excludes the erection of tomb stones. THEre is equally no authority for the proposition that a zamindar once the wakf of land for a graveyard has been established, has a right to use the land for any purpose. In my opinion, the position is clear, Once a plot of land has been proved to be a graveyard, the zamindar has no rights left at all for the simple reason that the graveyard becomes a wakf for the purpose of burying the dead. THE zamindar cannot interfere with the use of the land as a graveyard so long as it is used for this purpose. It would be novel, and indeed against public interest, to rule that a zamindar has a right to graze cattle upon a graveyard. If he had indeed such a right there would be nothing in law to prevent him from grazing a pig upon the same land. When a community buries its dead the land which is used for this purpose becomes sacred and should not be used for any other purpose whatever. It has been argued that there has been no proof of the dedication of this land as a wakf for a graveyard. It is entirely unnecessary to prove such a dedication. 1 When there is a finding that the land has been used as a graveyard from time immemorial, a dedication of the land as wakf a for this purpose is presumed. It has been r also contended that the erection of tomb's stone is contrary to the custom of Muslims and indeed sinful. Whatever I may have been the law laid down by ,t the prophet himself there has been for centuries of tomb stone or Mausoleum and Medina over the prophet's grave, No careful observer could fail to note be the hundreds of Mahomedan tomb stones scattered over the countryside. THE appeal therefore must be dismissed with costs. Leave to appeal in Letters Patent is refused.