Decided on March 18,1952



Subba Rao, J. - (1.) This second appeal arises out of O. S. No. 446 Of 1947 on the file of the District Munsif of Gobicbettipalayam, a suit filed by the first respondent for a declaration of his title and for a permanent injunction restraining the defendants from interfering with his possession. The facts found or admitted may briefly be stated: The plaint schedule property is the northern portion of S. No. 152-B. This is on a higher level than the rest of the survey field. It has never been under cultivation. In the year 1899 under Ex. A.I, the entire item fell to the share of one Peerkhan Sahib in a partition that was effected between him, hie brothers and father. Under Ex. A. 2 dated 9-12-1918 Peerkhan Sahib usufructuarily mortgaged the same to the plaintiff. On 4-3-1918 he executed a simple mortgage Ex. A. 3 of the same property in favour of one Aminabi. Ex. A. 4 dated 1-8-1924 is another registered usufructuary mortgage deed executed by Peerkhan Sahib is favour of the plaintiff. In none of the mortgage deeds it was mentioned that the plaint schedule property was used as a burial ground. Exs. A. 7 to A. 9 and A. 11 lo A. 23 are leases executed by the mortgagor in favour of the mortgagee in respect of the said site. They range between the year 1933 and 1943. Even in these documents the north western part of it was neither excluded nor described as a burial ground. Ex. A. 6 of the year 1930 and Ex. A. 10 of the year 1937 are leases executed by third parties. The entire S. No. 152-B was leased out to them. From 1918 onwards several deceased members of Peerkhan Sahib's family were buried in the said site. The defendants are the sister's sons of Peerkhan Sahib. In 1930 Peerkhan Sahib was buried. The defendants' grand-daughter, the defendants' sister, the defendants' uncle Usmankhan, the third defendant's grandmother and the defendant's father were buried in the suit site in 1928, 1934, 1945, 1945 and 1947 respectively. Even before 1928, there is evidence to establish that from 1918 onwards there were other burials of the dead bodies of Peerkhan Sahib's mother, his brothers and the first defendant's father. After Peerkhan Sahib's death, his sons became insolvents and the suit land along with other properties of Peerkhan Sahib was sold in auction by the Official Receiver and the plaintiff purchased the same in that auction. After the purchase he enclosed the land by means of a fence and was in enjoyment thereof. In the year 1947 the defendants destroyed 12 feet of the east to west fence in the northern boundary of the suit land and buried the dead body of one Rahiman Khan Sahib. The plaintiff therefore filed the aforesaid suit for declaration of title and injunction. The defendants claimed that, the north west portion of S. No. 152-B was dedicated for burying the deceased members of the defendants' family and that they also acquired a right by adverse possession. The learned District Munsif held that the dedication pleaded was true and that the plaintiff failed to establish that he was in possession of the suit site within 12 years prior to suit. In the appeal, the learned Subordinate Judge held that the defendants failed to establish that there was dedication or that they had acquired a right by adverse possession. He also rejected the plea for the first time raised before him that the defendants were licensees coupled with a grant. In the result, he decreed the suit. The first defendant has preferred the above second appeal.
(2.) The learned counsel for the appellant contended that the lower appellate court should have inferred from the facts found that the defendants were licensees coupled with a grant. He has also pressed on me to hold that the judgment of the Judicial Committee relied on by the lower appellate court does not prevent a court from drawing an inference of the existence of a licence coupled with a grant. Before noticing the judgment of the Judicial Committee, it will be convenient to refer to the earlier decisions to ascertain how far and to what extent the Judicial Committee overruled or disproved the previous existing law on the subject.
(3.) In -- 'Sheo Raj Chamar v. Mudeer Khan', AIR 1934 All 866 (A) a Bench of the Allahabad. High Court had to deal with the nature of a right to bury dead bodies and the manner in which that right could legally be conferred. There, a certain Muhammadan family had more than 30 years been using a plot of land belonging to another person as a graveyard for burying their dead in it, but the origin or source of this right or practice was not known. The learned Judges held that the long user gave rise to a presumption of a dedication of the graveyard or of a licence coupled with a grant and irrevocable in the past on the part of the then owners of the land. Sulaiman C. J. made the following remarks at page 871 which the learned counsel for the appellant strongly relied upon in support of his contention. The learned Chief Justice said: "If the right is not an easement, then it can be a licence coupled with a grant. The right to bury the dead cannot be a mere license; for, 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 licence. It must necessarily be a licence 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.";

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