Sacred Tombs vs. Stone Laws: Gujarat HC Shields Protected Monument from Burial Claims

In a ruling that underscores the supremacy of heritage preservation over unproven customary rights, the High Court of Gujarat at Ahmedabad dismissed a second appeal on February 11, 2026, upholding restrictions on burials at the historic Bada Hajira tomb in Vadodara. Justice J.C. Doshi rejected claims by the heirs of Pirzada Saiyed Bahauddin B. Kadri, a self-proclaimed religious scholar, affirming the site's status as a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act).

Roots in Faith and Forbidden Ground

The saga began in 1986 when plaintiff Pirzada Saiyed Bahauddin B. Kadri buried his daughter without permission near the tomb of Qutbuddin Muhammad Khan—tutor to Mughal Prince Salim—at Survey Nos. 322/1 and 322/2 in Danteshwar, Vadodara. Claiming descent from Qutbuddin and custodianship of the Qadariya order's "Gadi," Kadri asserted rights to religious rites and family burials as a customary practice tied to the Khanka-ae-Qadariya shrine.

The Collector intervened with a notice on February 4, 1986, deeming the site a protected monument managed by the Archaeological Survey of India (ASI). Kadri sued for declaration of the notice as void and a permanent injunction against state interference. The trial court decreed in his favor in 2003, but the first appellate court reversed it in 2005, leading to this second appeal under Section 100 CPC .

Plaintiff’s Inheritance of Tradition Meets State’s Ironclad History

Kadri's heirs, represented by advocate MTM Hakim, argued the appellate court erred gravely by relying on "unexhibited" documents from their own list (Exhibits 3 and 55)—revenue entries, Maharaja of Baroda's 1938 notification, and ASI orders. They invoked Sardar Sarovar Narmada Nigam Ltd. v. Rupdevsinhji (2021 GLR) to stress admissibility tests under Order XIII CPC and urged remand under Order XLI Rule 23A .

Customary rights were central: as Dharma Guru inheriting from elder brother Saiyed Ahmedmiya, Kadri claimed Sections 5(6) and 16 AMASR Act permitted religious observances and burials near ancestral tombs. No ownership was asserted, only spiritual stewardship.

The State, via AGP Urvashi Purohit, countered that these were public documents—revenue records, pre-independence notifications under the 1904 Act, and post-1951 ASI continuations—needing no formal exhibition. The plaintiff filed them yet avoided proving them, and pleadings referenced the facts therein. Burial demands violated Section 19 AMASR Act , prohibiting digs beyond one foot. A prior dismissal of Special Civil Application No. 13033/2000 (denying burial of Kadri's wife) sealed the issue.

Navigating Evidence Shadows: Supreme Court Lights the Way

Justice Doshi meticulously dissected second appeal limits per Supreme Court precedents. In Jaichand v. Sahnulal (2024 SCC OnLine SC 3864), interference is barred absent errors against mandatory law or inadmissible evidence. Gurbachan Singh v. Gurcharan Singh (2023 SCC 20) clarified "substantial questions of law" exclude routine fact reappreciation.

The court held plaintiff's documents—public records like the 1938 Gaekwad notification protecting "Hajira at Danteshwar"—were undeniable, even unexhibited. Order XLI Rule 27(1)(b) CPC empowered the appellate court to consider them for judgment. No custom proven: no evidence of lineage, guru appointment, or prior family burials despite available witnesses like the elder brother. The suit's omission of ASI as a party further doomed it.

Key Observations from the Bench

"Plaintiff cannot turn blind from those documents, regardless they are exhibited or not. Nonetheless, these are not the private documents. These are the public documents ."

"Plaintiff, except pleading bare words in this regard, did not lead any evidence to establish custom that he is a lineal descendant of Late Qutb-ud-din."

"The right, even if exists, is clearly barred under Section 19 of the ‘Act of 1958’."

These excerpts capture the court's emphasis on evidentiary rigor and statutory boundaries.

Verdict Echoes Through Vadodara's Tombs

The second appeal was " sans merit and... accordingly dismissed." Interim relief vacated, records remanded. This decision fortifies ASI's authority over protected sites, prioritizing national heritage against unsubstantiated personal claims. Future litigants must prove customs robustly and join necessary parties like ASI. In Gujarat's legal landscape—echoing recent High Court rebukes against courts overstepping into administrative roles, as in teacher appointment delays—judges reinforce procedural sanctity, ensuring heritage endures unmarred.