The main legal point established in the judgment is the importance of documentary evidence and burden of proof in establishing the nature of the land claimed to be a graveyard or waqf property.

RAKESH SHARMA, J.

1. Heard Sri Shafiq Mirza, learned Counsel for the Appellant and Sri S.K. Mehrotra, learned Counsel appearing on behalf of the Respondent-legal heirs/ representatives of the original Respondents 1 and 2.

2. Through the present second appeal, the Appellant has assailed the judgment and decree dated 5.12.1978, passed by the Civil Judge, Lakhimpur, dismissing Civil Appeal No. 100 of 1978, affirming the judgment and decree passed by the trial court, i.e., the Munsif, Lakhimpur on 5.5.1978. The trial court had dismissed the Suit No. 294 of 1973, Anjuman Islamia Lakhimpur v. Sri Ram Pitarya and Anr. seeking permanent prohibitory injunction. (The Plaintiff Appellant had not sought any relief of declaration). Both the courts below, i.e., the trial court and the appellate court have recorded concurrent findings of facts and found the case of the Appellant as unfounded and declined to interfere with the possession of the Respondents over the land in question, alleged to be a part of the graveyard managed by the Appellant.

3. It emerges from record that the Appellant filed a suit bearing No. 294 of 1973, for permanent injunction restraining the Defendants from interfering with its possession over the land in dispute. According to the Appellant, it was a Muslim graveyard, a waqf and as such the Defendants be restrained from changing the nature of the graveyard and digging or removing the graves existing over the disputed land. The land was an old graveyard of local Muslims of Lakhimpur and there were several kuchcha and pucca graves in the said graveyard (kabristan). During pendency of the suit, a commission was issued and the advocate Commissioner had reported that there were four or five pucca graves over the disputed land. In addition to this, there were several pits over the disputed land, which the Appellant had alleged to be old graves. The Appellant had produced several witnesses to depose that the dead bodies of their relations were buried in the said graveyard. The trial court did not find favour with the Plaintiff's case, hence the suit was dismissed. The appeal filed by the Appellant was also dismissed.

4. Sri Shafiq Mirza, learned Counsel for the Appellant has strenuously argued that the land in dispute was an old graveyard, which is a waqf under the Mohammedan law. According to him, the Plaintiff Appellant has all along been claiming that the disputed land is a waqf property being a graveyard. Under the Mohammedan law, once a graveyard is always a graveyard. It cannot lose its identity or character as graveyard by passage of time. After the old graveyard was filled up, the land in question adjoining the said graveyard was acquired for the purposes of burials. The Respondents are claiming their title over the land on the basis of a registered sale-deed executed by one Mahadeo Prasad in 1951. There are findings of facts recorded by the courts below about the number and existence of pucca and kuchcha graves over the disputed land and as such the said land can be termed as 'graveyard' as understood under the Mohammedan law. The Commissioner's report supports the claim of the Appellant that there exist some graves and pits over the land in dispute. The courts below have arrived at wrong conclusions. The Defendants cannot be permitted to change the nature of the graveyard by removing the graves, and as such an injunction was sought from the appropriate court. The court below was required under the law to grant injunction at least to the extent that the graves found over the disputed land should not be removed by the Defendants. In refusing this relief, the court below has acted in violation of law. The absence of entries in the revenue records and other papers can be excluded from consideration as the disputed land was a very old graveyard. The oral evidence led by the Appellant ought to have been scrutinized by the courts below for deciding the controversy in accordance thereof. Both the courts below have c