By means of instant writ petition, petitioners have sought for a writ in the nature of certiorari, quashing order dated 18.12.1997, passed by learned Civil Judge (Senior Division) Pratapgarh, in Regular Suit No.289 of 1995 and 32 of 1996, by which ad-interim injunction application under Order 39 Rules 1 & 2 of the Code of Civil Procedure moved by the plaintiffs has been rejected; and for quashing of order dated 24.09.2012, passed by the learned Additional District Judge, Court No.1, Pratapgarh, passed in misc. civil appeal no.111 of 1997, by which the appeal has been partly allowed and the defendants have been restrained from raising any constructions and cremating any dead body in the disputed premises.
Heard learned counsel for the parties and gone through the records.
Brief facts of the case are that the plaintiffs filed Regular Suit No.289 of 1995 for permanent injunction on the ground that Plot No.151/3 and 151/1 situated in Village Kachhi Patti, within town area Manikpur, District Pratapgarh is being used by Muslims, as graveyard. The said land has been recorded in the name of Nehal Ashraf and Nisar Ashraf as bhumidars of grove land, which is wrong and fictitious. It was also pleaded that defendant no.1 to 7 have purchased the said land from its recorded tenure-holders. The suit was instituted on the ground that defendant no.1 to 9 are forcibly occupying the disputed land and are threatening to dig the groves and raise constructions. In the said suit, application for ad-interim injunction was also moved. In the meantime, regular suit no.32 of 1996 was filed by Anis Khan and others. Since the matter in dispute related to the same property in both the suits, hence, the learned Trial Court dealt with the matter of ad-interim injunction and decided the same vide common judgment and order, contained as Annexure No.2. The plaintiffs filed misc. civil appeal no.111 of 1997, which was partially allowed and cutting of trees, raising of constructions and cremation of dead bodies were restrained. On the remaining score the appeal was dismissed. In the meantime, it is to be mentioned here, that in one of the two suits, the valuation of Regular Suit No.32 of 1996 was beyond the pecuniary jurisdiction of the learned District Judge, hence First Appeal From Order No.220 of 1998 was filed in this court, in which several orders were passed and modified vide orders dated 20.07.1998, 24.05.2004, 25.02.2004, 27.07.2004, 01.04.2005, 28.09.2004 and 14.10.2004, which have been transcribed in the writ petition itself.
Admittedly, the disputed land is not recorded as graveyard and, it is recorded in the name of Nehal Ashraf and Nisar Ashraf. The injunction order has rightly been refused by the two courts below, who have intelligently and wisely restrained raising of construction, cutting of trees and cremation of dead bodies, so as to ensure as nature of property is not changed during the pendency of the two regular suits, before the learned Civil Judge (Senior Division) Pratapgarh.
The consequences of the law as laid down by this Court in Pir Bux v. Sher Mohd., 1969 ALJ 169 has to be considered by the learned Trial Court while adjudicating upon rights of the parties. The impugned order, passed by the two courts below, are in consonance with the law recently laid down by the Hon'ble Apex Court in Ramarameshwari Devi and others v. Nirmala Devi and others, (2011) 8 SCC 249, in which certain guidelines have been issued which are as under:-
"A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
E. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed.
G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice."
In addition to these grounds the Hon'ble Apex Court in the above said case has also prescribed the following steps to be taken by the learned Trial Court, while dealing with the civil trends:-
"J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed."
Since the admitted position is that the disputed land was recorded as graveyard in the first settlement of 1862, but in all the subsequent settlements beginning from 1888 till date it is being recorded in the name of bhumidhars and no graveyard is recorded in the revenue records. It was also submitted before this Court that the recorded tenure-holders have been the Zamindars of the village, where the disputed land is situated. In Ballabh Das and another v. Nur Mohammad and another, AIR 1936 Privy Council 83, Privy Council has held as under:-
"It is a matter of not uncommon occurrence that some Mohammadans bury their dead in their orchards of Ahatas attached to their houses and allow their neighbours or relations also to be interred there. By doing so they do not divest themselves of their ownership over their orchard or Ahata or the sites thereof."
A perusal of the pleadings of both the parties do not throw any light on the creation of Waqf. It is settled proposition of law that upon burial of the single person or few persons of the Zamindar's family, land does not become waqf. A number of instances are necessary to reach to the conclusion that the land is graveyard in the sense known to Islamic law. The learned Trial Court has to adjudicate upon, as to whether the disputed land is being used by Muslims at large, as burial ground, which is a matter of evidence.
In Sheo Raj Chamar and another v. Mudeer Khan and other, AIR 1934 Allahabad 868, a Division Bench of this Court has held as under:-
"There are no doubt cases of the Calcutta and Lahore High Courts in which it has been held that the right to bury the dead cannot be an easement; whereas it has certainly been held in Bombay that the right of burial, if not an easement, is a customary right which, being confined to a limited class of persons and a limited area of land, was sufficiently certain and reasonable to be recognized as a valid legal custom : Mohidin v. Shivlingappa (1899) 23 Bom. 666. Piggot, J., in Mathura Prasad v. Karim Bakhsh 1915 All. 402 followed this ruling and held that there being no dominant heritage, such a right was not an easement, but "a customary right in the nature of an easement" and could be enforced. It may however be argued that if such a right is exercised by residents of a village their lands may constitute a dominant heritage.
But it is not necessary for me to commit myself finally to the view that the right to bury dead bodies is an easement. If the right is not an easement, then it can be a license coupled with a grant. The right to bury the dead cannot be a mere license; far from its very nature the permission is irrevocable. An owner of land cannot permit a corpse to be buried and then later on ask that the grave should be excavated and the corpse removed. If the permission from the very beginning is irrevocable, it cannot be a mere license. It must necessarily be a license coupled with a transfer, that is to say, a grant. If the right implies that the space should not be used by the original owner for any purposes whatsoever then the spot must be taken to be gifted or granted or, at any rate, dedicated or consecrated for burial purposes. The ownership of the zamindar would in such a case cease qua that spot."
In view of the law, as discussed above, the learned Trial Court has to collect evidence and has to reach to the conclusion that the disputed land can, by user, even though not by dedication has become a waqf or not?. In the case of a plot covered by recent graves the burden is undoubtedly on the person who alleges that it is a graveyard, to establish how the grant was made. But in cases where a graveyard has existed from time immemorial or for a very long time, there can be a presumption of a lost grant. It is open to a Court to infer from circumstances that a plot of land covered by graves, which has been used as a graveyard is, in fact, a graveyard and, had been set apart, as such, by the original owners and made a consecrated ground even though a registered document is not now forthcoming.
In view of the discussions as made above, writ petition is dismissed. The learned Trial Court shall proceed on with the case as expeditiously as possible, in view of the law laid down by the Hon'ble Apex Court in Ramarameshwari Devi's case (supra), as mentioned above.
Order Date :- 12.12.2012 Ram.