- (1.) THIS judgment shall dispose of two appeals i.e. (1) RSA No.2902 of 1985 and (2) RSA No.1314 of 1994, which have arisen out of two separate suits filed by the parties on the same facts. However, the facts are being taken from RSA No.2902 of 1985. Plaintiff -respondents filed the instant suit in representative capacity on behalf of the Muslims of village Buria Sarkar alleging that the land in dispute measuring 32 Kanals 11 Marlas, as detailed in the plaint, was a Kabrastan and was in existence since time immemorial and the plaintiffs and others were using the said land for digging graveyards and bury the dead -bodies in the same. It was averred that in the column of 'Ownership' in the Jamabandi for the year 1977 -78, the defendants were shown to be the owners of the suit land but the aforesaid entries were wrong and in fact, the plaintiffs and other Muslims of village Buria Sarkar are the owners in possession of the land in dispute. The purpose of the suit land is that of a Kabrastan, as mentioned in the jamabandis for the last many years. The defendants or any other person have no right or authority to change the purpose of the suit land in any manner whatsoever. The defendants were threatening to cultivate the suit land by demolishing the graveyards existing at the spot and they were further preventing the plaintiffs from using the land in dispute as a Kabrastan, and thus, a prayer was made for issuing a decree of permanent injunction restraining the defendants from changing the nature/purpose of the suit property by cultivating the same or by demolishing the graveyards in existence thereon or by dispossessing the plaintiffs and others in any manner from the suit land and by disturbing them and others for using the suit land as a Kabrastan.
(2.) IN the written statement, the defendants denied that the plaintiffs were the residents of village Buria Sarkar. It was further stated that the entire population resides within the Abadi of Buria Jagir. The revenue estate of Buria Sarkar is Be -chirag, meaning thereby without habitation. Defendants No.5 and 6 and their 3 -4 families have recently constructed their residential houses in this area and are residing there. None of the plaintiffs resides in village Buria Sarkar. The suit land is owned by the proprietary body of the village including the defendants, and thus, the proprietors are in cultivating possession of the same since time immemorial. No Muslim was ever buried in any part of this land. The land measuring 12 Kanals 7 Marlas comprising in Khasra Nos.31, 35 and 29 of Khewat No.72/95 and 96 stands reserved for burial ground and vests in the Punjab Wakf Board. Out of this land also, 2 Kanals 10 Marlas of land situated in Khasra No.29 min is being cultivated by the Punjab Wakf Board through Jagram, a non -occupancy tenant. It was further stated that the defendants have been cultivating the suit land for the last more than 12 years without any interruption from any quarter, and thus, the suit was liable to be set aside. It was also stated that the plaintiffs were not in possession of any part of the suit property as the same was not a graveyard and was never used as such, and thus, the suit was not maintainable and was liable to be dismissed.
(3.) IN their replication, the plaintiffs reaffirmed their stand taken in the plaint besides controverting the stand taken by the defendants in their written statement. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the suit property is a part of Kabristan? OPP 2. Whether the plaintiffs or other Muslims of village Buria Sarkar are owners in possession of the suit land? OPP 3. Whether the defendants are threatening to demolish the Kabars and cultivate the said land? OPD 4. Whether the plaintiffs have locus standi to file the present suit? OPP 5. Relief. Both the parties led evidence in support of their respective contentions. The trial Court, after considering the revenue record pertaining to the suit property and the various judgments on the point in issue, held that the land in dispute which is described as Gair Mumkin Kabrastan, was dedicated for being used as a graveyard of the Muslims and thus, the plaintiffs were entitled to the injunction, as prayed for. The trial Court further found that the plaintiffs had filed the suit under Order I Rule 8 CPC for the benefit of all the Muslims residing in village Buria Sarkar and they were having locus standi to file the instant suit. Resultantly, the suit of the plaintiffs was decreed by the trial Court vide its judgment and decree dated 15.03.1983. Challenging the aforesaid judgment and decree of the trial Court, the defendants filed an appeal, which was also dismissed by the first appellate Court vide its judgment and decree dated 14.09.1985. Still not satisfied, the defendants have filed the instant appeal submitting that the following substantial questions of law arise in this appeal: 1) Whether the courts below have completely misread the evidence, both oral and documentary and whether the evidence has been misread? 2) Whether the findings recorded by the courts below are not based on any evidence? 3) Whether the land in dispute does not fall under the terms wakf and whether the land owned and possessed by Hindus and Sikhs can be treated as Wakf property? 4) Whether the property which is utilized wakf must be owned by a muslim and dedicated by him? 5) Whether the right of burial can be acquired by prescription? 6) Whether the conditions of Order 1 Rule 8 Civil Procedure Code are fulfilled and whether a suit will not be a representative suit in the absence of permission of the Court? 7) Whether the framing of issue is not essential in a case in which facts and objections are clearly understood by the parties and finding could be recorded on the basis of pleadings and evidence? 8) Whether the provisions of Section 99 Civil Procedure Code have been misconstructed by the Courts below?;