Findlay—The plaintiff-appellant, Mir Mardan Ali, sued the defendant-respondent Zarim Khan in the first Court for possession of malik makbuza plot No. 53, area 1.08 acres, in Nagpur. The plaintiff-appellant is mutwalli of a mosque situated on another plot adjoining the one in suit. His case was that the plot in question was wakf to the mosque by one Faiz Ali about 100 years ago, that it was used as a graveyard until 1857, and that the mosque bad been in possession of the plot all along. His case further was that the defendant purchased the plot in Suit from Mt. Rahmat Bi, Haidarali and Suleman under a sale-deed (Ex. P. 1) dated 4th January 1922, and that he realized rent of an amount of Rs. 80 for one year from Kumhars to whom he had let it out for tile making purposes. His case was that the plot, having been consecrated and used as a graveyard, could not be the subject of private ownership, and accordingly possession of the plot and mesne profits amounting to Rs. 80 were claimed.

2. The defendant's position was that the plot did not belong to the mosque and never was wakf. It was admitted that some bodies had been buried in the ground up to 1857. The original owner of the pl