MOHAMMAD NAQI KHAN AND OTHERS Vs. STATE OF UP AND ANOTHER
LAWS(ALL)-1965-4-17
HIGH COURT OF ALLAHABAD
Decided on April 09,1965

Mohammad Naqi Khan And Others Appellant
VERSUS
State Of Up And Another Respondents


Referred Judgements :-

NAZIRA V. SUKHDARSHAN LAL [REFERRED TO]
LAKSHMIDHAR MISRA V. RANGALAL [REFERRED TO]
STATE OFBIHAR VS. KAMESHWAR SINGH:STATE OF MADHYA PRADESH:GOVERNMENT OF THE STATE OF UTTAR PRADESH:KAMESHWAR SINGH [REFERRED TO]


JUDGEMENT

Oak, J. - (1.)THIS is a Plaintiffs' second appeal arising out of a suit for perpetual injunction. The suit was brought by Mohammad Naqi and three others against the State of Uttar Pradesh, the Gram Sabha of village Jeanpur and Gram Samaj of village Jeanpur on these allegations:
The four Plaintiffs are residents of village Jeanpur in Distt. Azamgarh. In this village there is one plot with an area of 304 links. The plot has been a graveyard since time immemorial. There are a number of trees standing in this plot. The plot and the trees are dedicated property. The Muslims of the locality have the right to bury dead bodies in this plot. But the Pradhan of the Gram Samaj has been interfering with the Muslims' rights in this plot. The Pradhan has been disposing of the trees in his plot on the footing that the trees have vested in the Gram Samaj. The Plaintiffs, therefore, filed the suit to restrain the Defendants from interfering with the right of Muslim residents in the graveyard and the trees standing on the plot.

(2.)THE Plaintiffs' claim was resisted by the Defendants. They conceded that Muslim residents of the village have right of burial in the plot. But the Defendants denied that the trees also constituted dedicated property. The learned Second Additional Munsif, Azamgarh, who tried the suit, accepted the Plaintiffs' claim. He found that both the grave yard and the trees are dedicated property. He, therefore, passed a decree in Plaintiffs' favour for permanent injunction restraining the Defendants from interfering with the rights of the Plaintiffs and other Muslim residents of this village in the plot and the trees. The Defendants appealed. The appeal was allowed by the learned 2nd Additional Civil Judge of Azamgarh. He held that dedication of the plot has not been established. The trees vested in the State and in the Gram Samaj The Plaintiffs' suit was, therefore, dismissed. The Plaintiffs have, therefore, come up in second appeal.
When the second appeal was heard by a learned single Judge of this Court, he was of the opinion that the question whether a Muslim grave yard vests in the State under the provisions of UPZN and LK Act, (UP Act No. I of 1951), hereafter referred to as the Act, is of considerable importance. He, therefore, referred the entire appeal to a larger Bench.

(3.)THE first question for consideration is whether the plot in dispute was ever dedicated. On this point, the learned Civil Judge remarked that it has not been proved that the grave yard was dedicated to God. This view of the learned Civil Judge appears to be incorrect.
In Lakshmidhar Misra v. Rangalal (1) (AIR 1950 PC 36) it was held that a claim by the inhabitants of a village to the use of certain area as a cremation ground can only be supported on ground of custom, and not on the basis of dedication or lost grant. In the present case we are dealing with a Muslim gave yard, and not with a piece of land used by Hindus for purposes of cremation.

In the Courts of Wards v. Ilahi Baksh. (2) (11 ALJR 265) the circumstances were somewhat similar to those in the present case, and it was held that the land in suit formed part of a grave yard set apart for the Musulman community. The land was wakf by user, if not by dedication.

In Nazira v. Sukhdarshan Lal (3) (1936 AWR 365) a grave of a Mohammedan existed on a piece of land. It was held that the presumption is that, that part of the site on which the dead body is buried is dedicated with the consent of the owners of the land and becomes sacred and ceased to be the private property of the former owners and should be considered as wakf land in which the members of the Mohammedan community would be interested and to which they would be entitled to have access.

In the present case it was stated in para. 2 of the plaint that the plot in question has been used as a grave yard from time immemorial. Muslim residents of the village have been burying dead bodies in the plot for generations. This allegation was admitted in the written statement. It was conceded that even now Muslim residents have the right of burial in this plot.

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