Rakesh Sharma, J. - (1.) HEARD Sri Shafiq Mirza, learned counsel for the appellant and Sri S. K. Mehrotra, learned counsel appearing on behalf of the respondent-legal heirs/ representatives of the original respondents 1 and 2.
(2.) THROUGH the present second appeal, the appellant has assailed the judgment and decree dated 5.12.1978, passed by the Civil Judge, Lakhimpur, dismissing Civil Appeal No. 100 of 1978, affirming the judgment and decree passed by the trial court, i.e., the Munsif, Lakhimpur on 5.5.1978. The trial court had dismissed the Suit No. 294 of 1973, Anjuman Islamia Lakhimpur v. Sri Ram Pitarya and another, seeking permanent prohibitory injunction. (The plaintiff appellant had not sought any relief of declaration). Both the courts below, i.e., the trial court and the appellate court have recorded concurrent findings of facts and found the case of the appellant as unfounded and declined to interfere with the possession of the respondents over the land in question, alleged to be a part of the graveyard managed by the appellant. It emerges from record that the appellant filed a suit bearing No. 294 of 1973, for permanent injunction restraining the defendants from interfering with its possession over the land in dispute. According to the appellant, it was a Muslim graveyard, a waqf and as such the defendants be restrained from changing the nature of the graveyard and digging or removing the graves existing over the disputed land. The land was an old graveyard of local Muslims of Lakhimpur and there were several kuchcha and pucca graves in the said graveyard (kabristan). During pende?cy of the suit, a commission was issued and the advocate Commissioner had reported that there were four or five pucca graves over the disputed land. In addition to this, there were several pits over the disputed land, which the appellant had alleged to be old graves. The appellant had produced several witnesses to depose that the dead bodies of their relations were buried in the said graveyard. The trial court did not find favour with the plaintiff's case, hence the suit was dismissed. The appeal filed by the appellant was also dismissed. Sri Shafiq Mirza, learned counsel for the appellant has strenuously argued that the land in dispute was an old graveyard, which is a waqf under the Mohammedan law. According to him, the plaintiff appellant has all along been claiming that the disputed land is a waqf property being a graveyard. Under the Mohammedan law, once a graveyard is always a graveyard. It cannot lose its identity or character as graveyard by passage of time. After the old graveyard was filled up, the land in question adjoining the said graveyard was acquired for the purposes of burials. The respondents are claiming their title over the land on the basis of a registered sale-deed executed by one Mahadeo Prasad in 1951. There are findings of facts recorded by the courts below about the number and existence of pucca and kuchcha graves over the disputed land and as such the said land can be termed as 'graveyard' as understood under the Mohammedan law. The Commissioner's report supports the claim of the appellant that there exist some graves and pits over the land in dispute. The courts below have arrived at wrong conclusions. The defendants cannot be permitted to change the nature of the graveyard by removing the graves, and as such an injunction was sought from the appropriate court. The court below was required under the law to grant injunction at least to the extent that the graves found over the disputed land should not be removed by the defendants. In refusing this relief, the court below has acted in violation of law. The absence of entries in the revenue records and other papers can be excluded from consideration as the disputed land was a very old graveyard. The oral evidence led by the appellant ought to have been scrutinized by the courts below for deciding the controversy in accordance thereof. Both the courts below have committed an error of law in overlooking this aspect of the matter.
(3.) SRI S. K. Mehrotra, learned counsel for the respondents has resisted the appeal. According to him, the appellant has no legal right or title to sue nor it had locus standi to maintain the suit. The suit had been filed by a body known as Anjuman Islamia Lakhimpur through Hakim Manzoor Hussain Khan alleging himself to be its Secretary (mutwalli). The appellant had in fact no right to maintain the suit and only the heirs of the two persons, whose graves allegedly stand over the land in dispute, could have claimed the injunction that there may not be any interference with the graves of their relatives. No such person has come forward till date to claim such relief. The suit was filed with ulterior motive. The respondents had purchased 1.75 acres of land in 1951. This plot was in the naute of grove, which is evident from the boundaries of the plot. The defendant-respondents had built a godown over the land ; they were using and occupying the same since 1951. An unnecessary dispute was raised by the appellant in the year 1973. The disputed plot of land was recorded as grove in the revenue records. The extracts of khasras relating to following years were produced before the courts below and the same were discussed by the lower appellate court too in its judgment : 1. Khasra relating to 1304 F = 1897 AD 2.Khasra relating to 1328 F = 1921 AD, and 3. Khasra relating to 1345 F = 1938 AD. It was indicated that the plot No. 153 (new), old No. 142, measuring 1.75 acres was recorded in the name of Sheetal Nau. This land was recorded a ?rove and as per Section 57 of the U. P. L. R. Act, 1901, the entries in concurrent records of latest settlement are presumed to be correct unless rebutted by cogent evidence. In this regard. SRI Mehrotra has placed reliance on a judgment of this Court in Lalbihari and others v. Ram Adhar and others, 1985 (3) LCD 415 : 1986 AWC 9. Sri S. K. Mehrotra, learned counsel for the respondents has led stress on the point that the appellant had sought permanent prohibitory injunction without claiming the relief of declaration. Such suit for permanent prohibitory injunction without claiming the relief of declaration has been held to be conduct prohibiting the plaintiff from receiving the assistance of the Court to get relief under Section 41 (1) of the Specific Relief Act, 1963. In this regard, he has placed reliance on the following judgments : 1. Sri Dasnam Naga Sanyasi and another v. Allahabad Development Authority, Allahabad, AIR 1995 All 418 (DB) ; 2. Sir Shadilal Enterprises Limited, New Delhi v. State of U. P. and others, 1995 AWC 443 (DB) ; and 3. M/s. Pilibhit Ispat (Pvt.) Ltd., Pilibhit and another v. U. P. State Electricity Board, Lucknow and others, 1996 (14) LCD 612 (DB) : 1996 (2) AWC 2.80 (NOC).;