ABJDUL SALAM Vs. MOHAMMAD ISMAIL (DIED AND AFTER HIM MOHD. YASIN) AND OTHERS
HIGH COURT OF ALLAHABAD
Mohammad Ismail (Died And After Him Mohd. Yasin) And Others
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D.P. Uniyal, J. -
(1.)THIS is a Plaintiffs appeal arising out of a suit for a declaration that the graveyard in suit is a public waqf of which the Plaintiff is the mutwalli.
(2.)THERE is a graveyard situate in settlement plot No. 1047 in Mohalla Jagjiwanpur in the city of Varanasi. Adjoining the graveyard is a mosque which stands on plot No. 1046 and part of plot No. 1047. Admittedly the mosque is waqf property of which the Plaintiff is the mutwalli.
It appears that on the 22nd November, 1879 there was an auction sale in respect of plot No. 101 -7 in execution of a decree against some members of the Defendant's family and the plot was purchased by Ahmad son of Nazar Mohammad, one of the ancestors of the Plaintiff. The sale of the plot in suit in favour of Ahmad son of Nazar Mohammad is proved by a copy of the sale certificate produced in the case. There is, however, no documentary evidence to show that dakhaldehani was obtained by the auction purchaser. But it is not in controversy that the said plot was converted into a graveyard and was used as such by the ancestors of the Defendant whose family members after their death continue to be buried in the said graveyard.
(3.)THE main dispute between the parties is as to the public or private nature of the graveyard. While the Plaintiff claims it to be a dedication for purposes of burying the dead of the public in general, the Defendant asserts that it is a private family graveyard.
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