- (1.) PRAFULLA C. Pant, J. This appeal, preferred under section 96 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 16. 7. 1982, passed by learned District Judge, Almora, Camp-Ranikhet, in original suit No. 29 of 1979, whereby the suit is dismissed by said Court.
(2.) HEARD learned Counsel for the parties. Brief facts of the case are that plaintiffs filed original suit No. 29 of 1979, for declaration that the land of plots No. 357 and 358, situated within the limits of Cantonment Board, Ranikhet, measuring 1. 111 acre, is Waqf property, used as grave yard of the Muslims for the times immemorial. Plaintiffs further sought possession of the land, occupied by defendants No. 1, 2 and 3 and also sought recovery of mesne profits at the rate of Rs. 1,500/- on account of damages. It is pleaded in the plaint that the land of survey plot No. 357, measuring 0. 498 acre and that of plot No. 358, measuring 0. 613 acre, has been a customary grave yard from time immemorial of the Muslims within the limits of the Cantonment Ranikhet. It is further alleged that there existed an old ruined mosque in survey plot No. 358 and a house over a land measuring 20 ft x 12 ft, belonging to the Muslims. One late Qudrat Shah, used to live in said house as Takiyadar of the grave yard. On application of Qudrat Shah, Cantonment Board, Ranikhet, granted a rent free lease in his favour on 15th April, 1915, for agriculture and residential purposes. However, said plot No. 137 A does not correspond to the survey plots No. 357 and 358. Nor the grave yard, mosque or the house had ever been private property of Qudrat Shah or that of his descendants (defendants No. 2 and 3 ). Defendant No. 1 in connivance with defendants No. 2 and 3, who are son and daughter of Qudrat Shah, got agreement executed through them on 23. 9. 1968, for sale of the land, allegedly owned by late Qudrat Shah. It is pleaded that no right can be conferred on defendant No. 1 by defendants No. 2 and 3, as Qudrat Sah, had no proprietary rights over the land in suit. Defendant No. 1 Mathura Nath, contested the suit and filed his written statement, stating that he is in possession of the land in suit on the basis of the registered agreement dated 23. 09. 1968, executed by defendants No. 2 and 3, who accepted the consideration from him. Denying the fact that the disputed land is grave yard, it is pleaded by defendant No. 1 that defendants No. 2 and 3, after execution of the agreement, have colluded with the plaintiffs.
(3.) DEFENDANTS No. 2 and 3 (Talib Hussain and Banney Hussain), filed their joint written statement, in which the case of the plaintiffs is admitted. Defendants No. 4 and 5 (Union of India and Military Estate Officer) in their joint written statement, denied the contents of the plaint and it is pleaded that the Government of India, had given the land in suit in lease to Qudrat Shah. When a notice under section 185 of Cantonment Act, was served on respondent No. 1-Mathura Nath, to vacate the land in suit, he filed a civil suit before Munsif, Ranikhet. Defendant No. 6 - Cantonment Board, also filed its written statement and denied the allegations, contained in the plaint. It is alleged by the Cantonment Board, in their written statement that survey plot No. 5 is earmarked as grave yard for the Muslims and it has nothing to do with the land of survey plots No. 357 and 358.;