The rules of the Mohammadan law cannot be applied in deciding the rights of the parties since the Muslim law is not the common law of India.

Ramaswami, J.

1. These appeals are brought by Ramzan Momin and others from the judgment of the Additional Subordinate Judge of Darbhanga declaring that the land in dispute has been used as a burial ground for Moslems from time immemorial but the Moslems have no right to cut the trees or bamboo clumps or to graze their cattle thereon.

2. The dispute relates to plots 10548 and 10576 of khata Nos. 688 and 1088 in village Narauch Behari, touzi No. 6424. In the year 1940, communal trouble arose and in consequence proceedings under Sec.144 and Sec.145, Cr. P. C. were initiated. The Magistrate held as a result of his enquiry that there were graves over the entire plot 10576 and over 9 kathas and 19 dhurs of plot 10548. As regards 1 1/2 kathas of plot 10548, the Magistrate found that Dasrath Raut was in possession. In title suit No. 160 of 1943 Dasrath Raut and others (hereinafter described as plaintiffs) therefore claimed plot 10548 as having been acquired by purchase from the recorded tenants. As regards plot 10576, plaintiffs alleged that they were in possession as next reversioner of Halkhori, the recorded tenant, Ramzan Momin and others (hereinafter described as defendants) claimed the plots as graveyard of Mohammadans. In title suit 9 of 1944, the defendants sought a declaration that the portion of 1 1/2 kathas of plot 10548 was the graveyard and there was prayer also for removal of certain structures which Dasrath Raut had wrongfully erected. In title suit 160 of 1943, the Munsif held upon a consideration of the evidence adduced that Mohammadans had a right to use the land as graveyard. The Munsif however found that the plaintiffs had title and accordingly declared their title and possession subject to the use of the land by the defendants as graveyard. The Munsif further held that the defendants had no right to cut the trees or the clumps nor had they any right to graze cattle on the land. In title suit 9 of 1944 with respect to 1 1/2 kathas of plot 10548 the Munsif held that the Mohammadans had failed to prove their possession within the statutory period and hence dismissed the suit.

3. The parties preferred appeals against the decision of the Munsif. The Subordinate Judge upheld the finding of the Munsif in title suit 160 of 1943 that the Mohammadans had been using the land as graveyard from time immemorial and had acquired a right to use it as such. He however negatived the claim of the Mohammadans that they had planted the trees and bamboo clumps or that they were entitled to the use thereof. He accordingly dismissed the appeal preferred by the defendants. As regards title suit No. 9 of 1944, the learned Subordinate Judge held that the Mohammadans bad established right to use the land as graveyard. He accordingly allowed the appeal and granted a declaration to that effect.

4. These appeals have been brought on behalf of the defendants against the judgment of the Subordinate Judge.

5. The main question debated is whether the land, has become wakf on account of its being used as a burial ground from time immemorial and whether the title of the plaintiffs has become extinguished.

6. It is necessary to state at the outset that the Subordinate Judge committed an error of law in holding that upon the facts established the Mohammadans "had acquired easement by grant." The conclusion of the Subordinate Judge is defective in law. It is a conception unknown in law to dedicate a piece of land to a limited section of the public, such as the inhabitants of a village. The doctrine of lost grant cannot therefore furnish a true legal basis of the right of the defendants. The doctrine was organised in English law as a technical fiction to enable title to be made by prescription despite the impossibility of proving "immemorial user." But a right acquired by the doctrine of lost grant had to be attached to and descend with an estate, and since the right originated as grant its owners had to be such persons as were capable of being th