- (1.) THIS Regular Second Appeal is directed against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and dismissed the suit filed by the plaintiff-appellant for a decree of permanent injunction against defendants Nos. 1 to 3 directing them to vacate the disputed and.
(2.) THE facts: The appellant (hereinafter referred to as 'the plaintiff) filed a suit for mandatory injunction or in the alternate for possession against respondents Nos. 1 to 3 (hereinafter referred to as defendants Nos. 1 to 3) directing them to vacate the suit land measuring 16 Bighas 1 Biswa. It was stated in the plaint that the suit land was jointly owned by the plaintiff, defendants Nos. 4 to 13 and one Puran Devi who has since died and whose share was inherited by Nos. 4 to 13 being her legal heirs. The plaintiff had one half share in the suit land while Nos. 4 to 13 were owners of the remaining one-half share. The suit land was originally given to the Mahomedans as licensees by the fore-fathers of the plaintiff and defendants Nos. 4 to 13 who were the owners thereof at that time, with a permission to use the said land as a burial ground. While granting the said licence, it was clearly mentioned that the land could not be cultivated and the same could not be used for any other purpose except the one specified above. The terms of the licence were mentioned in the Wajab-Ul-Urz prepared at the time of settlement in the year 1964 BK of village Payal, which was previously known as Sahibgarh in district Amargarh. After the migration of the Mahomedans to Pakistan in the year 1947, the suit land remained no longer with the Mahomedans and the licence given to them for burial of their dead bodies stood terminated. In the year 1967-68, defendant No. 2 illegally and without any right, title or interest in the said land gave the same on lease to defendant No. 3 for cultivation at an yearly rent of Rs. 210/ -. The plaintiff moved the Wakf Board through its Secretary who admitted vide order dated June 27, 1967, that the said land was not meant for cultivation and that the Wakf Board had no interest or right with regard to the said land and consequently, the aforesaid lease granted by defendant No. 2 in favour of defendant No. 3 was cancelled vide order dated June 27, 1967, and defendant No. 3 was informed accordingly by defendant No. 2 to take back his lease money. In spite of the above admission made by defendant No. 2 with regard to the nature and character of the suit land and the rights of the plaintiff and defendants Nos. 4 to 13, it again leased out the suit land for the year 1968-69 in favour of defendant No. 3 without any right or interest. Thus, defendant No. 3 interfered in the actual possession of the plaintiff though the lease in his favour was illegal and was not binding on the plaintiff and other co-owners. It was further alleged that although defendant No. 1 has been shown in the revenue record as 'muzara Awal' in possession of the land in dispute but as the suit land was Gair Mumkin (Qabristan) and not cultivable by its character and nature and was given to the Muhammadans to use the same as burial ground for their dead bodies, so according to law there could not be any tenant much less the custodian who had no right or interest left in the suit land after the migration of the Mahomedans to Pakistan in the year 1947, as the licence in their favour stood terminated because no Mahomedans were left to use the land as burial ground and consequently the entries in the revenue record about the custodian as the tenant-in-chief were absolutely wrong, illegal and not bind-ing on the plaintiff and defendants Nos. 4 to 13 and custodian had no right to claim any interest in the suit land. As defendants Nos. 1 and 2 had no right or interest in the suit land, defendant No. 3 had no right to interfere in possession of the plaintiff over the suit land. On these premises the plaintiff prayed for a decree for mandatory injunction directing defendants Nos. 1 to 3 to vacate possession of the suit land and not to interfere in their actual possession.
(3.) THE suit was contested by defendants Nos. 2 and 3. Defendant No. 2 maintained that the land in dispute was used as Muslim graveyard from the very outset and was used as such from time immemorial and that after the partition of the Country in the year 1947, Muslims continued to live in the village and the character of the land in dispute remained a grave yard. It was further asserted that the suit land vested in the Punjab Wakf Board and it has every right to use for any purpose, it thought fit, and that the lease granted by it in favour of defendant No. 3 was perfectly valid. The suit property firstly vested in the Custodian under the law as Trust for the Punjab Wakf Board and with the Constitution of the Wakf Board, its management and control was transferred to it.;