R. DAYAL, ACTG. C. J.

( 1 ) THIS is a special appeal against the order of a learned single Judge and arises out of a suit for partition of a grove.

( 2 ) THE plaintiff claimed one-fourth share in this grove. He impleaded 31 defendants. Out of these defendants three contested the suit on the grounds that the plaintiffs share was less than one-fourth and that the grove in suit was waqf property, it being dedicated for the purpose of a family graveyard. Two other defendants just wanted their share also to be partitioned. The remaining defendants did not put in appearance.

( 3 ) THE trial court decreed the suit for partition and also decreed the claim for partition by defendant No. 1. 23 of the other defendants appealed against this order. On appeal, the learned civil Judge dismissed the appeal and confirmed the judgment and decree of the trial court. The same 23 defendants filed a second appeal in this Court. It was also dismissed by the learned single judge and it is against that order that the present appeal is filed.

( 4 ) THE learned counsel for the appellants tried to urge the point about the share of the plaintiff in the land in suit. He was not allowed to raise this point as the learned single Judge had not allowed it to be raised in view of the consideration that the point had not been urged in the first appellate court. The point was taken in the memorandum of appeal, but there was not a word about it in the judgment indicating that the point was not raised before the court.

( 5 ) THE only other point which has been contended before us for the appellants is that the land in suit must be held to be a graveyard in view of the fact that a portion of the main plot including the land in suit contained a large number of graves and there were some graves in the land in suit as well. According to the commissioners report, the number of graves in the land in suit is even, four pucca graves practically in the centre and three others in different places of the land in suit whose area is about five bighas. Considering the area of the land in suit, the number of graves is very inadequate to hold that the entire area is a graveyard. It is also urged that because there is no demarcation between that portion of the plot which does contain a large number of graves and the land in suit, it must be held that the entire plot is a graveyard. We do not see any justification for this.

( 6 ) IT is not the case of the parties that this plot including the land in suit had been dedicated for the purpose of a public graveyard. The defence raised by the three contesting defendants was that the grove in suit had continued to be a graveyard of the families of the parties from the time of their ancestors and that the Idgah and the pucca well in it were also constructed for the same purpose. It may be mentioned that the Idgah and the pucca well are not situate on the land in suit but are situate on the other portion of the plot which is not in suit and on which there exist a large number of graves. That portion of the plot is nine biswas in area. When the graveyard is not a public graveyard and consists of the graves of the members of the family alone, it is not to be presumed that the entire plot had been dedicated for the purpose of a graveyard. The persons in possession of the plot just used a portion of it for the purpose of burying the dead in the family. There was no allegation in the written statement that any permission of the proprietor had been taken to use the land as a graveyard. There could not have therefore been any dedication of the entire plot including the land in suit for the purposes of a graveyard.

( 7 ) IT has also been contended that the site of the various graves in the land in suit must at least be held to be dedicated land and reliance is placed on the case of Nazira v. Sukhdarshan Lal, 1936 all LJ 651 (A ). The case supports the contention. For the purposes of this case we accept what had been held there though with great hesi

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