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High Court Of Madhya Pradesh
H. R. Krishnan and S. B. Sen, JJ.
MOHAMMAD KASAM ABDUL REHMAN - Appellant
Versus
ABDUL GAFOOR AHMEDJI - Respondents
First Appeal 33 Of 1959
Decided On : 10/09/1963
A graveyard cannot be a private graveyard unless it is used for the family members exclusively. Once the public are allowed to bury their dead it ceases to be a private property. [Para 16
Under the Mohemmedan Law if a land has been used from time immemorial for burial ground then the same may be called a Wakf although there is no express dedication. AIR 1934 All. 335, AIR 1938 Oudh. 77 relied on. [Para 17
The presumption is that the part of the site where the dead body is buried is dedicated with the content of the owner so that the grave is a Wakf and the Muslim Community have access to if. AIR 1936 All. 651, relied on.
Any stoppage in user will not convert a graveyard, which was once a Wakf property into a private property. A public graveyard continues to be so whether it is so used or not. A graveyard will always vest in public and it cannot be divested by non-user. Such an idea is inherent in a Wakf. A public property can only be transferred by public and therefore in the absence of any thing to show that the public in general has transferred their right to a private individual, a fact which is not possible to establish, the property continues to be a public Wakf. AIR 1930 Oudh 245, AIR Oudh 47 & AIR 1940 Sndd 43 relied on. [Para 22
When the factum of a Wakf has to be established by long user, the portion of the land which has actually been used can only be taken into consideration. [Para 28
(2) Mohammedan Law - Mutwalli - adverse possession - not available to Mutwalli over trust property - construction of trust property by Mutwalli - is an accretion to the trust estate - construction on plots not part of the graveyard.
A stranger to the trust can encroach upon the trust estate and will in course of time acquire title by adverse possession. But a Mutwalli cannot take up such a position. If the Mutwalli chose to build on the part of the trust property in such a way as to integrate the whole into one unit, then the Court is bound to regard this as an accretion to the estate of which they are trustees, and they will be estopped from adopting any other attitude because no trustees can be allowed to set up a title adverse to the trust or be allowed to make a benefit out of the trust for his own personal ends.
But if the Mutwalli builds on a part of the land which was not used as burial ground, the building does not form part of the wakf. AIR 1956 SC 113 relied on. AIR 1933 Nag. 115, AIR 1931 Oudh 293, AIR 1959 All. 78 & AIR 1946 Nag. 401 referred to. [Paras 29 & 36
( 1 ) THIS appeal arises out of a suit brought by representatives of the Muslim equivalent Citation: community of Ujjain under Order 1 Rule 8, C. P. Code, after obtaining sanction of the Advocate-General.
( 2 ) THE property in suit is a defunct grave-yard (Kabarstan) in Ujjain. The defendants are sons of one Abdulrahman. They used to live with one Karimshah fakir who was appointed manager of the Kabarstan some time in Samvat Year 1974-1916 A. D. In 1916 a flour mill was set up by one Alimohammad who was alleged to be the purchaser from Mariambai. This Mariambai and Shahbajthan constructed residential house on a part of the graver yard about 15 or 16 years before. Another house was also constructed by Shahbajkhan. These constructions, it is alleged were with the permission of the Muslim Community in general. Mariambai Shahbajkhan and defendants were allowed to live in that house for looking after the management and affairs of Kabarstan.
( 3 ) ABOUT 4 years before the suit it is alleged that the defendants were neglecting the management of the grave-yard and were asserting their title as owners. On 15-7-47 Shahbajkhan obtained permission from the Municipality for construction of a house without sanction and knowledge of the Muslims. The defendants demolished graves and let out certain pieces of land for fuel stalls. They also erected certain temporary huts and utilised the income for their own benefit. There were also transfers of certain portions of the house. The defendants who are the legal representatives of the said Shahbajkhan are in possession of the graveyard. They are using the graveyard and income therefrom for their personal benefits. The position of the defendants is that of trustees, the Kabarstan being a property for the benefit of the Muslim community as a whole.
( 4 ) THE plaintiffs prayed for a declaration that the property, the graveyard is a Wakf property and the construction on that property belonged to the Muslims in general and never was nor is the personal property of the defendants. The plaintiffs also claim removal of the defendants as trustees and their ejectment from the property with a prayer for a settlement of a scheme for the protection of the wakf and for the improvement of the Muslims in general. They also claim accounts from the defendants for the income they received from the property in suit.
( 5 ) THE defendants' case is that the grave-yard was never the property of the muslims in general. It was, the private property of the defendants and their predecessors in title. The houses in question are their personal preperty, and they have a right to dispose of the same. The graveyard was never used as a public graveyard ami it was in possession of Mariambai in her own rights after whom the defendants came in possession of the same.
( 6 ) THE Court granted a preliminary decree. The reliefs granted are a declaration that the suit land is a Wakf property and not personal property of the defendants; that the defendants are to be removed from the office of the trusteeship and they shall be removed after the passing of a final decree and appointment of the trustees. The defendants should give charge of the trust property to the new trustees. The Court has also asked for suggestion of names of leading persons of equivalent Citation: the Muslim Community to be appointed as trustees.
( 7 ) IN appeal two contentions have been raised, first, that the Court has erred in coming to the conclusion that the property graveyard was a Wakf property and even assuming that the graveyard is a Wakf property, the portion on which there are buildings and constructions, cannot be held to be a Wakf property as it was never used as a graveyard, private or otherwise.
( 8 ) THOUGH a number of issues have been framed, the main questions in dispute are two involved in the above two contentions. The Court has found that the property is a Wakf property and the Kabarstan, a public Kabarstan; therefore the defendants who are
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