At the time of arguments no one appeared for respondents, hence, only the arguments of learned counsel for appellants were heard.
This is plaintiffs' First Appeal directed against judgment and decree dated 6.5.1992 passed in O.S. no.53 of 1989 by 7th A.D.J. Azamgarh decreeing the suit of the plaintiffs for permanent injunction in part. Injunction had been sought over a land of about 1 acre. The suit was decreed except for a portion of the land in dispute lying towards north west and admeasuring 261 links (in Azamgarh one acre is divided into one thousand links).
The suit was filed in a representative capacity under Order I Rule 8 C.P.C. after taking permission of the Court. It was claimed by the plaintiffs that property in dispute was a graveyard where Muslims of the village Kandharpur (tehsil sagri district Azamgarh) buried their dead. Plaintiffs no. 2,6,7 and 11 claimed to be Mutawalis. In the plaint plot number of the land in dispute was not mentioned, it was described in the plaint map by letters A,B,C,D. It was also stated that apart from several graves there was a Saiyed Barha also in the land in dispute. It was further stated that the Muslims of the area were burying their dead in the land in dispute for more than 100 years without any interruption in a customary way hence local Muslims had matured their right for the same and the land vested in God being waqf and that defendants had no concern with the land in dispute, however, they were threatening to uproot the trees and damage the graves.
Defendants in their written statement asserted that the plot number of the land in dispute was 22 area 930 links (0.93 acres) that originally Shyam Narain Lal, Lalit Mohan, Pramod Kumar and several other persons were owners/bhoomidhars of the plot in dispute out of which they had sold 261 link area situate towards north west to the defendants and since then defendants were Bhoomidhar in possession of the north western portion of the plot and that the north western portion was never used as grave-yard, no dead body was ever buried therein. It was further pleaded that plot no.22 was never recorded as graveyard in revenue records and that there was another grave-yard in the locality in plot no.1.
The trial court framed 10 issues. Parties led oral evidence as well as documentary evidence. Documentary evidence consisted of copies of death register, family register, decree passed in an earlier suit etc. Defendants filed extracts of two khataunis, original sale deed and copy of an earlier order copy of CH form no.41 and written statement filed in another suit. It is mentioned in the judgment of the court below that Amin visited the spot and submitted his report 14 ka 2 and map 15 ka 2 and subsequently also Amin visited the spot on 7.7.1991 and submitted report and map numbered as 87 Ka 2 and 88 Ka 2.
The only point requiring decision in this appeal is as to whether 261 links north western portion of the land in dispute total area of which is 930 links is grave yard or belongs to the defendants.
In the plaint plot number was not mentioned. Even after the defendants mentioned the plot number of the entire land as 22 in the written statement plaint was not got amended. Defendants filed CH form no.41 (comparative table) showing that previous number of the plot in dispute was 20. Earlier twice litigation had taken place about the property in dispute before revenue court under Section 229 B of U.P.Z.A.L.R. Act and predecessor in interest of plaintiffs no. 2 to 6 in the said suit (suit no.941) had admitted number of the property in dispute to be 20 (later on converted into 22). Plaintiffs themselves filed copy of the Commissioners report with map filed in suit no.616 under Section 229 B of U.P.Z.A.L.R. Act which was numbered as paper no.118 Ga -1 and 119 Ga -1. The map showed that the plot in dispute in both the suit was same and the commissioner had given the number of the same as 22.
Plaintiffs did not file any revenue record regarding the disputed land. Defendants filed extract of Khatauni 1395 to 1400 Fasli paper no.26 Ga-1. Vendors of the defendants along with other persons were shown to be bhoomidhars of the plot in dispute (no.22) in the said Khatauni. What is more important is that in the same Khatauni father of plaintiffs no. 2 to 6, plaintiff no.11 and father of plaintiff no. 10 and several other persons were also recorded as Bhoomidhars. The sale deed through which defendants purchased the part of the property in dispute was numbered as 46 Ka -1. After the sale deed the names of vendees were entered in the revenue record.
In the Khatauni 1395 to 1400 fasli paper no.33 Ga plot no.1 area 37 links was recorded as grave-yard.
Plaintiffs did not question the sale deed. Defendants stated about the sale deed in their written statement. Plaintiffs did not get the plaint amended seeking cancellation of the sale deed or a declaration to the effect that the sale was void. They did not even question the right and title of the defendants' vendors in the sold portion of the plot/property in dispute.
Supreme Court in AIR 1976 SC 1569 Mohd S Labbai Vs. Mohd Hanifs has held that entry in the revenue record of grave yard/Waqf is most important evidence regarding the character of the property. In para 28 of the said authority it has been held as follows:
"It is also well settled that a conclusive proof of the public grave-yard is the description of the burial ground in the revenue records as a public grave- yard".
The entire para 28 is quoted below:
"The High Court has clearly held that the burial ground consisted of two parts as shown in the sketch map and has been proved to be a public grave-yard by immemorial user. There is overwhelming oral and documentary evidence to prove this. In fact the defendants themselves have not denied that the Mahomedan public of the village used to bury their dead in this grave-yard and they have only sought to protect their right to realise pit fees and other incidental charges which has been accepted by the High Court. The Mahomedan Law on the subject is very clear. Under the Mahomedan Law the grave-yards may be of two kinds-a family or private grave- yard and a public grave-yard. A grave-yard is a private one which is confined only to the burial of corpses of the founder, his relations or his descendants. In such a burial ground no person who does not belong to the family of the founder is permitted to bury his dead. On the other hand if any member of the public is permitted to be buried in a grave-yard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the grave-yard has become a public grave-yard where the Mahomedan public will have the right to bury their dead. It is also well settled that a conclusive proof of the public grave-yard is the description of the burial ground in the revenue records as a public grave-yard. In Ballabh Das v. Nur Mohammad (1) the Privy Council observed as follows: "If the plaintiffs had to make out dedication entirely by direct evidence of burials being made in the ground, and without any record such as the khasra of 1868, to help them, they would undoubtedly have to prove a number of instances adequate in character, number and extent to justify the inference that the plot of land in suit was a cemetery. x x x The entry "qabristan" in the khasra of 1868 has to be taken together with the map which shows the whole of plot 108 to be a grave-yard."
Accordingly, in the absence of entry of the plot in dispute as grave yard in Revenue records it cannot be held that north western portion was graveyard. No evidence of burial instances, adequate in character, number and extent was led by the plaintiffs to justify the inference that the north western portion was a graveyard.
Learned counsel for the appellants during argument mainly placed reliance upon the Commissioner's report. In the amins report in the north western portion no grave yard is mentioned only grove/trees is mentioned.
In the first report of the Amin dated 27.02.1989 which was ex parte it was only mentioned that the plaintiffs showed him the bones by removing the earth of one or two graves. In the second report which was prepared on the basis of inspection made in the presence of both the parties it is mentioned that one or two pits were found however no graves were found and plaintiffs stated that the graves had been levelled by the defendants.
Accordingly, I do not find any error in the impugned judgment the Court below rightly held that plaintiffs failed to prove that north western portion of the plot in dispute admeasuring 261 links was graveyard, it belonged to other persons who sold it to the defendants. The appeal is, therefore, dismissed.
Date: 09.7.2012 vkg