V.Bhargava, J. - (1.) THE Appellants, with the permission of the Advocate General, instituted a suit Under Section 92 of the Code of Civil Procedure in respect of a property known as Chimte -Ka -Bara, situated in Ujjain, bearing plot No. 8326 old and No. 1/465 new, with the allegation that this property constituted a Qabristan for Muslims of Ujjain and has been used as such from time immemorial, so that it was subject of a public waqf.
(2.) IN the year 1916, one Shahbaj Khan Faqir was asked by the Muslims of the locality to look after the grave -yard and he started doing so with the help of his niece Mariam Bai, Subsequently, the property was looked after by the son and grand -son of Shahbaj Khan, Faqir. Some time after the year 1916, Mariam Bai was allowed to put up a house on a part of the land for her own residence and for the residence of Shahbaj Khan because they were looking after the property as Mutawallis. On 23 January, 1918, the Muslims filed a suit against one Ali Mohd. Bohora and Shahbaj Khan for removal of a flour mill which had been wrongfully put up on this Waqf land, and in this suit, on 17th May, 1918, Shahbaj Khan made a statement giving the status in which he was in possession of the land. On 21st May, 1930 an application was moved by the Muslims of that area before the Municipal Committee to allow this grave -yard to continue to be used for future burial of the dead bodies, the occasion having arisen because the Municipal Committee decided to close this grave -yard and allotted another site to be used as the grave -yard of the Muslims. In 1947, Shahbaj Khan constructed a house over part of the disputed land. Thereafter, the Appellants obtained the sanction of the Advocate General on 21st August, 1950 and instituted the suit Under Section 92 Code of Civil Procedure on 22nd November 1950 for a declaration that the entire property in dispute was a grave -yard, and for removal of the Mutawallis who had wrongfully converted the property to their own use and were claiming that it belonged to them, and (or laying down a scheme for the management of the property. The suit was decreed by the District Judge on 9th May, 1959. On appeal by the present Respondents, the High Court modified the order passed by the District Judge. The High Court recorded the finding that, though the existence of a grave -yard was established as also the fact that it was a public grave -yard which must be deemed to be waqf property by user, the portion occupied by the buildings was not proved to be a part of the grave -yard. Consequently, the suit in respect of the portion over which the Abadi existed was dismissed. Further, the High Court took notice of the fact that this grove -yard had now been closed under the orders of the Municipal Committee so that all that was now needed was to look after the existing graves and this was not likely to yield any income and, consequently, the Respondents were the best persons to look after the grave -yard. The High Court, therefore, appointed the Respondents as Mutawallis to look after the waqf property, after making it clear that the Respondents will be prevented from using the burial ground for any private purpose. The decree of the District Judge, in so far as it related to the portion over which there were actual constructions in existence, was set aside and that portion of the land was allowed to remain in possession of the Respondents. The Appellants have now come up to this Court in this appeal by special leave against this decree of the High Court insofar as their claim was disallowed by that Court. In this appeal, only two points arise for decision and they were the points which were urged by Learned Counsel for the Appellants. The first point raised was that the High Court was wrong in coming to the finding that the land, over which the buildings exited, was not grave -yard and was not the subject of waqf. This decision of the High Court was challenged on two grounds. The first ground was that at no stage of the pleadings was it pleaded by any party that a part of the disputed land was grave -yard and waqf property, while another part was private property which was the subject -matter of the waqf. The second ground was that in respect of one single piece of land it is incorrect to hold that one portion of it is subject to waqf, while another portion is private property.
(3.) IN dealing with these points, the first aspect that has to be kept in view is that the burden lay upon (he Appellants to prove that the property was subject to a waqf and that the waqf which came into existence covered the entire property which was the subject -matter of the suit. The Respondents challenged this plea of the Appellants in toto by pleading that no part of the property was subject of waqf. In such circumstances, if, on a consideration of the evidence, the Court came to the finding that part of the property was waqf and part of it was not the subject of the waqf, it cannot be said that that finding did not arise out of the pleadings of the parties. The claim of the Respondents in respect of the entire disputed land would certainly cover a claim in respect of a part of it.;