FAKHURUDDIN Vs. MOHAMMAD RAFIQ

JUDGEMENT

(1.) This is an action for the recovery of certain timber or the value thereof, consisting of trees and branches of trees, which were blown down by the wind in a certain graveyard in the town of Koil on the 25th of May 1913. The plaint also claims an injunction restraining the defendants from cutting or removing any trees from the graveyard. The plaintiffs allege that they are the owners of the soil which was dedicated as a takia or graveyard and that they are entitled to any produce of the land which has been severed from it and the usufruct of which is not inconsistent with the purposes for which the land was dedicated. The defendants, who are seven members of a much more numerous Muhammadan mohalla or religious brotherhood to whom the graveyard was dedicated, and by whom it has been used, contend that the plaintiffs claim has no justification in Muhammadan Law and is inadmissible according to the general principle that property dedicated for religious purposes is sacred for all time and cannot be the subject of private ownership. The case was argued before me as one of principle in which the timber in dispute was a minor consideration, and I, therefore, reserved judgment so that the parties might have the benefit of a considered opinion upon the points raised.

(2.) It is necessary to examine somewhat narrowly the way in which the case was presented to, and fought in, the Munsif s Court and the findings at which the Munsif arrived.

(3.) At the outset of the hearing certain admissions were made by the defendants Pleader, the effect of which was that it was not contested that the plaintiffs predecessor-in-title, one Imam Baksh, was originally the owner of the property. On the other hand it was not, and could not have been, disputed that the land had been used as a graveyard for many years and that a fakir had lived there. It was admitted that the defendants in the suit represented the brotherhood, that the plaintiffs names were entered in the Revenue papers as owners and that their predecessors names had been similarly entered, though not strictly in accordance with the ordinary devolution of Muhammadan property. The learned Munsif found as a fact that the plaintiffs had been in proprietary possession of the ground, that it had been dedicated many years ago as a graveyard for the use of this particular brotherhood, that it had been so used by them, that the plaintiffs and their predecessors had been recorded in the Revenue papers as owners, and that the plaintiffs and their predecessors had all along had the usufruct of the land. The latter finding appears to mean that in respect of a small number of fruit-bearing trees (the graveyard itself contained a large number of trees) the plaintiffs or their relations had taken the fruit although the fakir had from time to time received some of the fruit. Over this peaceful and hallowed spot there burst in the month of May 1913 a violent wind storm which uprooted a tree, and severed the timber in question from the land. This unfortunate disturbance of nature was followed by an even more unfortunate upheaval of this religious community and by the present litigation.