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