JUDGMENT

Srivastava, J - This is a defendant's appeal. It arises out of a suit for a declaration that a plot of land 374 situate in Mohalla Nayagaon, Lucknow, is a public graveyard and that the defendant is not entitled to make any constructions on the aforesaid plot, other than those contemplated by the wakf. The defendant denied the existence of the alleged public graveyard and set up title in himself by adverse possession.

2. The trial Court held that the plaintiff had failed to prove that the plot in suit was a pubic graveyard and dismissed the suit accordingly. On appeal the learned Subordinate Judge has disagreed with the finding of the trial Court and held that ft was sufficiently proved both by documentary and oral evidence that the plot in suit is a public burial ground. He has also found that the defendant has failed to establish any title in himself and has accordingly given the plaintiff the declaration claimed.

3. The learned Counsel for the defendant-appellant has questioned the correctness of the finding of the lower appellate Court about the land in suit being a public graveyard on two grounds. He has pointed out that admittedly the graveyard in question was closed to the public under orders of the Municipal Board about 40 years ago and that no burials had been made in the said land during the last 40 years. His first contention is that in these circumstances the land cannot he regarded as a public graveyard. His argument is that if any land is to be held as a public graveyard on the ground of user, the user must be proved to have continued up to the time when the controversy arises. His second contention is that as the land has admittedly ceased to be a graveyard, it must be deemed to have lost its character of a public wakf and should now be regarded as private property which could be the subject of transfer. In my opinion both these contentions are without force. It is well settled that a wakf may, in the absence of direct evidence of dedication, be established by evidence of user. The land in suit was recorded at the time of the first regular settlement as a qaburistan but there is no direct evidence to establish the dedication. In the lower Court emphasis was laid upon the entry of the name of one Wazirunnissa in the settlement khasra in the column containing the names of persons owning the property. The learned Subordinate Judge has discussed this entry, at considerable length and in the light of the evidence of a number of witnessess examined on behalf of the plaintiffs, whose evidence he has believed has come to the conclusion that the Mahomedan public used the land as their burial ground until the Municipal Board prohibited further interments in that land absent 40 years ago. Thus in the present case the finding about the land in suit being a public graveyard is based upon the evidence of long user. The learned Counsel for the appellant has failed to cite any authority for the proposition that in order to establish the land as public wakf on the ground of user, there must be evidence of continued user upto the present day. The rule which allows evidence of user to take the place of dedication is a rule of necessity. In the case of old wakf it is not possible to secure direct evidence of dedication and so it has been ruled that even in the absence of such direct evidence, a Court; can hold a wakf to be established on evidence of long user. In the case of a wakf like the present in which interments were stopped under the order a of the Municipal Board no less thaw 40 years ago, it is very difficult to secure direct evidence of dedication, and if there is evidence to establish long user-continuing right up to the time of the prohibition made by the Municipal Board I fail to see any reasons for rejecting this evidence in proof of the wakf. In the absence of any authority in support of the contention, I must overrule it.

4. Next as regards the argument that the land no longer retains the character of a publ