Land used as a graveyard for a long period becomes waqf by user, even without express dedication. Entries in the record of rights describing land as a graveyard in the community's possession are conclusive, and vacant spaces within such land cannot be treated as private property.

Judgement

Appeal from a decree of the Chief Court (December 16, 1907) reversing a decree of the District Judge of Multan (April 15, 1907).

The question decided was whether the appellant or his pre-decessors in title had created a valid and irrevocable waqf of the land in suit, dedicating it in perpetuity to the use of the Mahomedans in Multan as a cemetery.

The respondents sued as Mahomedan residents of Multan City having the right to bury their dead in the land in suit and for a declaration that it was graveyard in possession of the Mahomedan community, with consequential relief against the appellant, who had advertised portions of the land for sale as his own property. The appellant pleaded that the land was owned and possessed by him with full power of transfer, which he had frequently exercised by sales and leases, and that it was not waqf or graveyard.

The District Judge dismissed the suit, finding " that the defendant had never treated the land as waqf, that he had sold from time to time any clear spaces for building, had leased others and had realized miscellaneous income from the whole, and had asserted his rights as landlord by exacting a due of 3 pies per grave from those burying their dead with his permission," and that these transactions had not in the past been objected to by the Mahomedan community or the general public; that there had been no dedication of the area, nor had there been any declaration that the whole area now sued for was waqf.

The Chief Court in appeal declared that the land in suit was waqf in possession of the Mahomedan community as a graveyard, and granted the relief prayed on the ground that " although there is no direct proof of dedication as waqf we can safely conclude that long before 1858 it had become waqf at least by user " ; and that in 1858 this status of waqf had been fully recognized, and that no acts of acquiescence in the appellants wrongful alienations could affect the rights of the plaintiffs or the tenure of the land.

De Gruyther, K.C., and OGorman, for the appellant, contended that the appellant and his predecessors had been shewn by the evidence to have been in proprietary possession for generations of the land of which the area in suit formed a part. The burden, therefore, of proving that the land in suit had been dedicated as waqf lay upon the respondents, who had failed to discharge it. At the first regular settlement it was recorded as being in the ownership of the appellants predecessor. It was proved that in 1880 the Government acquired a portion of the appellants land for a railway station and paid compensation to his predecessor; that his predecessor had granted leases and made sales of portions of land and granted licences to bury bodies on payment. In 1858 the residents of Multan, including the appellants father, petitioned the Commissioners on sanitary grounds to restrict the right of interment to certain specified areas, but the proceedings left untouched the question of dedication by user or otherwise.

Arthur Grey, for the respondents, contended that the land in suit had been entered in the record of rights of the last settlement as in possession of the Mahomedan community and was described as "kabristan " or graveyard. The appellant was no doubt entered as owner in the ownership column, but that was in accordance with custom, he being admittedly the mutawalli or trustee thereof. He referred to the Punjab Land Revenue Act (XVII. of 1887), s, 44, and contended that entries made according to law in a record of rights raised a presumption of correctness which the appellant had failed to rebut. Even if no express dedication of the land could be proved the continuous use of the land for the purpose of burial shewed that it had become waqf by user. In 1858 its character as graveyard was recognized by the authorities, who on sanitary grounds ordered some portions of it to be closed and others to be used.

De Gruyther, K.C., in reply.

The judgment of their Lordships was d