Sir George Rankin:-

This suit concerns a plot of land in Mohalla Begumganj in the City of Lucknow measuring between seven and eight biswas. The purpose of the suit is to establish that this plot of land is a graveyard in the sense of the Mahomedan law, that is to say extra commercium and dedicated for the benefit of Mahomedans in general in such sense that private ownership therein does not exist. The suit is a representative suit, the plaintiffs having obtained an order under O. 1, R. 8, Civil PC. Their grievance against defendant 1, Ballabh Das, is that by a deed dated 1st February 1928, he purported to take a transfer of this land from defendant 4, Mt. Musaheb Khanam, who conveyed the land to him professing to have derived title thereto from one Kale Khan. The plaintiffs' claim against defendants 2 and 3 is nowhere clearly stated, but at the trial the case made against them was that they had encroached upon the land in suit by the erection of a wall and door as additions to a house which abuts upon the land. The defendants, while not denying that in 1868 and prior thereto some few persons had been buried in the land, nor that in 1870 the land was closed for the purposes of a cemetery by order of the Municipal Board, deny that the land was at any time dedicated or made wakf so as to cease to be the private property of the owner. The defendants claim that at the time of the first regular settlement in Lucknow the land belonged to and was settled with Kale Khan as the owner thereof.

The suit was tried by the learned Subordinate Judge at Lucknow who dismissed it with costs, defendants 3 and 4 not appearing. On appeal by the plaintiffs to the District Judge this decree was affirmed. On second appeal, the Chief Court at Lucknow set aside these decrees and decreed the plaintiffs' suit with costs in all Courts. Their Lordships, in a later passage of this judgment, will refer to the exact form of the decree made by the Chief Court and to a further order dated 15th September 1931, discharged by an order dated 2nd November 1931. Special leave to appeal to His Majesty in Council was obtained on 17th March 1932 by defendants 1 and 2.

At the trial a large number of witnesses were called, but in the opinion of the Subordinate Judge and of the District Judge the oral evidence was of little assistance to the plaintiffs. These Courts were unable to find that the plaintiffs had proved that upon this lands urs had been celebrated or fatihas had been read. They did not consider it established that a large number of pukka graves existed on this land at any time. The oral evidence as to kachcha graves was also held unworthy of belief. In this view the plaintiffs' case depended entirely upon the documentary evidence. Of the documents produced, by far the most important are the khasra and noqsha being the revenue survey and map which came into existence in 1868 at what is called the first Regular Settlement in Oudh. These are Exs. 3 and 1 and it is important that they should be read together. A number of other documents of secondary importance were produced and duly canvassed by the trial Judge.

As it is common ground that the plot was closed as a graveyard in 1870, its recent history cannot be expected to shed much light upon the question of its dedication. It may however be mentioned that defendant 4, Mt. Musaheb Khanam, is found to be Kale Khan's grand-daughter. He died in 1880 leaving two daughters, Alla Rakkhi, who died in 1898, and Wilayati Khanam, who died in 1920. Defendant 4 is the daughter of the former. In 1913, Ex. 2, a municipal register of graveyards was prepared and Daroga Baqar Ali who prepared it described the plot as a takia, which means, according to the Chief Court, a graveyard in the custody of an individual fakir and entered it both as a public graveyard and also as personal property. This self-contradictory document usefully notes in the "Remarks" column that there are some thatched houses of tenants for which one anna per month