B.R Tuli, J.:— This judgment will dispose of nine regular Second Appeals Nos. 1346 to 1354 of 1965, as the points of fact and law involved are the same.

2. In village Garhi Brahmanan, Tehsil Sonepat, District Rohtak, the land comprised in Khasra No. 247 which is in dispute in this case as shown as ghermumkin kabristan, in the Jamabandi for the year 1909–1910 (Exhibit P. 19) and occupier is shown as kunjra tribe, resident of Sonepat town. This entry is repeated in Jamabandi for the year 1945–1946, Exhibit D.1 in the Jamabandi for the year 1957–1958, that is, Exhibit D.2 the land is described as ghermumkin kabristan in the possession of Ahl-e-Islam and Panchayat Deh is recorded as its owner. The same entry is repeated in the Jamabandi for the year 1961–1962, Exhibit D.3, equal to Exhibits P. 10 to P. 18. The ownership of this Khasra Number throughout has been shown as that of the Panchayat Deh in Jamabandis, Exhibits D.2 and D.3, and Shamlat Deh Hasab Rasad Raqba Khewat in Jamabandis for the years 1909–1910 and 1945–1946. The reason for the change of the owner from Shamlat Deh to Panchayat Deh was the coming into force of the Punjab Village Common Lands (Regulation) Act, 1954, whereunder all the lands included in the Shamlat Deh of any village automatically vested in the Panchayat having jurisdiction over the village with the effect from the date the Act came into force, that is 9th January, 1954.

3. The Parliament enacted the Wakf Act, 29 of 1954 which came into force on 21st May, 1954. This Act applies to all Wakfs whether created before or after the commencement of the Act. In section 3(1) “Wakf” has been defined to mean the permanent dedication by a person, professing Islam of any movable or immovable property for any purpose recognised by the Muslim as pious, religious or charitable and includes.

(i) a wakf by user:

(ii) grants (including mashrut-u-khidmat) for any purpose recognised by the Muslim and as pious, religious or charitable; and

(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognisrd by Muslim in as much as pious, religious or charitable;

Section 9 of this Act provides for the establishment of a Board of Wakfs by the State Government and the functions of the Board have been defined in Section 15. In short, the overall management and supervision of a Wakfs has been entrusted to the Board which has also been given power to take measures for the recovery of lost properties of any Wakf and to institute and defend suits and proceedings in a Court of law relating to wakfs. The provision has been made in the said Act for the survey of wakfs publication of lists thereof, determination of the disputes with regard to the wakfs and for the maintenance of a register of wakfs.

4. The Punjab Wakfs Board, which had been constituted under the said Act, filed nine suits for possession of different parcels of land comprised in Khasra No. 247 against the Panchayat Deh and Gram Sabha of the village and nine other persons who had taken possession of the different parcels of land in Khasra No. 247 as described in the plaints of the various suits on the ground that the land comprised in Khasra No. 247 was wakf property and the Wakf Board was entitled to take its possession. The suits were defended by the Panchayat Deh and Gram Sabha only. In each suit it was pleaded that the land in dispute had vested in the Gram Panchayat under the Paunjab Village Common Lands (Regulation) Act, 1 of 1954, that the plaintiff could not claim its possession, the suit was barred by time and the secretary of the plaintiff-Board had no authority to file the suit on behalf of the Board. Since common questions of fact and law were involved and were to be decided in all the suits, they were consolidated and were disposed of by one judgment by the learned trial Court and the appeals arising therefrom were also disposed of by one judgment by the learned lower appellate court.

5. On the pleadings of the parties, the following issues were framed:—

1. Is the plaintiff owner of the land in suit?

2. Is the suit within time?

3. What is the effect of Act, No. 1 of 1954 on this suit?

4. Is the person filing the suit property authorised to do so by the plaintiff?

5. Relief.

Issues Nos. 1 and 2 were decided against the plaintiff. Issue No. 3 was decided in favour of the Panchayat Deh holding that the land had vested in the Pahchayat. Issue No. 4 was not pressed and as a result of his findings, the learned trial court dismissed all the suits on 26th November 1964. Against the decrees passed by the learned trial court, the plaintiff filed appeals in the Court of the Senior Subordinate Judge, Rohtak, which were accepted on 11th June, 1965. The learned lower appellate Court hold that the land in dispute has wakf property and, the suits were not barred by limitation. The finding of the learned trial court on issue No. 3 was held to be incorrect and it was held that the property being wakf property could not vest in the Gram Panchayat inspite of the fact that it was recorded in the revenue areas as Shamlat Deh because it never belonged to the proprietary body. The provisions of Punjab, Act, No. 1 of 1954 were held to have no effect on the suits. The finding given by the learned trial court on issue No. 4 was not challenged before the learned lower appellate court. Aggrieved from the decrees passed by the learned lower appellate court the Panchayat Deh and Gram Sabha have filed the present appeals in this court.

6. The first point to be determined is whether the land in dispute is wakf property as defined in the Wakf Act, (29 of 1954) (hereinafter called the Act). I have set out above the definition of wakf as given in the Act. According to this definition, the wakf should have been created by a person professing Islam, and not by any body else, but the legislature by the Wakf Amendment Act, 30 of 1959, inserted Section 66-C in the Act, which reads as under:—

“Notwithstanding anything contained in this Act where any moveable or immovable property has been given or donated by any person not professing Islam for the support of a wakf being—

(a) a mosque, idgah, immabara, dargah, Khankah or a maqbara;

(b) a muslim graveyard;

(c) a choultry or a musafarkhana,

then such property shall be deemed to be comprised in that wakf and be dealt with in the same manner as the wakf in which it is so comprised.”

It has not been proved in the suits that the dedication has been made by a person professing Islam. The land was recorded as Shamlat Deh in the Jamabandis for the years 1909–1910 and 1945–1946 from which it follows that the land had been left to be used as a Kubrastan (graveyard) by the proprietors of the village. The dedication by any body is not proved but the learned counsel for the respondents states that the dedication should be presumed from long user, that is, from 1909–1910 to 1945–1946. Long user is a question of fact. It has to be pleaded and proved by evidence. The plaintiff never set up the case of wakf by user in the plaints. All that was stated was that ‘khasra No. 247, measuring 5 Bighas 7 Biswas of khata No. 764 of Garhi Brahmanan, Sonepat, is a wakf property being a gher mumkin kabrastan (barran graveyard), as per copy of Jamabandi of 1961–1962, attached here with, and was in possession of the plaintiff”, and that defendant 1 had, without the permission of the plaintiff, illegally occupied it and was in possession of the land comprised in Khasra No. 247 since 28th August, 1963 and refused to vacate it. The claim to the possession of the land was made only on the basis of Jamabandi for the year 1961–1962 in which it was recorded as gher mumkin kabrastan occupation of the Ahl-e-Islam (following of Islams), which entry is not correct as has been shown hereinafter. The respondent cannot be allowed to plead the case of wakf by user in this Court. The question to be determined is whether an the basis of the entry in the Jamabandi for the year 1961–1962, khasra No. 247 can be held to be wakf property.

7. The village was predominantly a Hindu village in which the Muslims were only a few before partition and after partition there is none. It has been admitted by the plaintiff's witnesses that no dead body has been burried in this graveyard since 1947. The persons who are defendants in the suits along with the Panchayat Deh and Gram Sabha took possession of various plots and constructed houses thereon. If no muslim is living in the village, it cannot be understood how the entry in the Jamabandi that the Khasra number is in possession of Ahl-e-Islam can be taken to be correct and in accordance with the existing facts. On the spot no graves exist and houses have been constructed. Therefore, it cannot be said that the entry gher-mumkin Kabrastan is in accordance with the facts. It is also on the record that the Panchayat filed applications for the ejectment of the other defendants who had built houses in this Khasra Number. The ejectment orders were passed and were being executed. No evidence has been led as to the origin of the dedication nor has it been shown by any cogent evidence that this Khasra number had been used as a graveyard in fact, that is, any dead bodies were buried therein or that any tomps existed in this land.

8. The plaintiff produced P.W 1, Mathra Dass retired D.R.A Sonepat, aged 66 years who located Khasra No. 247 and prepared, the plan, Exhibit P.W 1/1 in each suit. In this plan he showed the possession of the person at the spot and stated that this land was previously used as a graveyard. In cross examination he admitted that he had stated this land to be a graveyard previously on the basis of the revenue entries and did not personaly see the graveyard. The other witness produced by the plaintiff is P.W 2, Mohd. Ibrahim, aged 70 years, blacksmith by profession and resident of Sonepat. He stated that the land was previously used as a graveryard, he had seen graves in this land and had himself participated in some of them. In cross-examination he could not give the area or the Khasra number of the land in dispute and stated that he belonged to Sonepat and not to Garhi Brahmanan as he was not a proprietor in that village and did not know if this land was previously owned by Mohammedans or whether it was a part of the Shamlat Deh. P.W 3, Mohammad Isha, Rent Collector, of the plaintiff Board, stated that he came to Sonepat for the first time in 1932 and that since that time no dead body was buried at this place. He stated the land to be gher mumkin kabrastan as it was so shown in the revenue records and there were signs of graves.

9. The defendants produced D.W 1, Sis Ram, aged 70 years, Lambardar of Garhi Brahmanan, who stated that the Panchyat was the owner of the land and it was never left to be used as a graveyard nor any dead body was ever buried in that land. In cross examination he stated that he did not know if this land had been entered as graveyard, in the revenue record and that the Panchayat had applied for the removal of the houses built on this land to the S.D.O Sonepat, but he did not remember the date when the applications were made. He further stated that previously Mohammedans were also proprietors of Garhi Brahm man. D.W 2, Jagvijay, aged 40 years, a cultivator of Garhi Brahmanan, stated that he was the Sarpanch of the village and that the Panchayat was the owner of the land in dispute. A portion of this land had been encroached upon by the other defendants and the Gram Panchayat applied for their eviction in the court of the S.D.M Sonepat, and ejectment orders were passed. The execution of those orders is pending. Previously, this land was a part of Shamlat Deh and was in possession of the Shamlat. This land was never given in any wakf by any Muslim. No dead body was ??? buried in this land. No wakf ever became owner of this property and the entry in the revenue records that this land was a graveyard had been wrongly written at the instance of Muslim patwaris. In cross-examination he stated that for the first time he came to know of the entry regarding this land in April, 1964 and did not file any application for correction of the entry. He did not know when the entry of graveyard was made in the revenue record and that he remembered that Muslim Patwaris were posted to this circle but did not remember their names. D.W 3, Bhim Singh, aged 50 years, Lambardar of Garhi Brahmanan stated that the land in dispute was Shamlat Deh in possession of the Shamlat and vested in the Panchayat. This land was never used as a graveyard and no dead body was ever buried there.

10. The entries in the Jamabandis carry a presumption of correctness but in this case the Jamabandis for the years 1957–1958 and 1960–1961 cannot be said to be correct because the old entries were repeated although since 1947 no Muslim is living in this village and the land in dispute was never used as a graveyard. It had been encroached upon by the defendants in the suits other than the Gram Panchayat and the Gram Panchayat itself filed applications for their ejectment after the land had vested in the Panchayat. The entries in the other Jamabandis produced in the suits do not prove that the dedication had been made by any Muslim. It has also not been shown that any mutwali had ever been appointed to look after the wakf property and to arrange for the burial of the dead bodies in this land. A bare statement of P.W 2 is not sufficient to hold that the land in suit had been dedicated for the purpose of a graveyard or that the land had ever been used as a graveyard or that any dead bodies were ever buried there. He admittedly was not a proprietor in that village nor resided there ever. It has also not been shown how the entry of occupier was changed from Kunjra tribe, resident of Sonepat, to that of Ahl-e-Islam, particularly when after 1947 admittedly no Muslim has been living in this village and the land was never used as graveyard by the Muslims.

11. The learned counsel for the Punjab Wakf Board has argued that the definition of wakf includes a wakf by user and since in the Jamabandi of 1909–1910 it has been stated as gher mumkin kabrastan, it is to be deemed as wakf and that it is not necessary to prove the dedication of the land for the purpose of graveyard by any person. In support of his submission, he has relied on various judgments, which are noticed below:—

(1) Chhutkao v. Gambhir Mall . A.I.R 931 Oudh 45., wherein it was held as under:—

“Where a plot of land is described as a takia and has been used for many years as a place for burial by Mahomedans whether they are members of one family or not, a presumption arises that there is a wakf by user.

A cemetery or graveyard is consecrated ground and cannot be sold or partitioned. Even lands which are not expressly dedicated but are covered by graves are regarded as consecrated and consequently in-alienable and non-transferable.”

12. It is further observed;

“It is only where there are one or two bodies buried but the whole plot is not considered to be maqbara or burial ground that the actual places where the dead are buried are considered to be consecrated and the rest of the land may be alienated.”

13. At another place it is stated:—

“In Mahomedan Lal land once used as a cemetery is always regarded as cemetery unless for any reason it turns out to be unfit for use as such.”

14. The facts of that case are entirely different from the facts of the instant case. There it had been found as a fact that dead bodies, had all along been burried in that land for a very long times and that the plot was a takia and in the year 1875, permission was given to Maula Shah to bury dead bodies in this takia. There was no evidence of dedication of this land but because it was a takia, its dedication was presumed. No such facts have been proved in the instant case. It has not even been mentioned how many graves there are and admittedly this land was never used as a graveyard since 1947 and as there is no Muslim living in the village, there is no necessity of keeping it as a graveyard for the followers of Islam.

(2) Noor Mohammad v. Ballabh Dass . A.I.L 1931 Oudh. 293., in which it was held as under:—

“In any case if one portion of a continuous plot of land where the entire plot is shown in the settlement khasra as qabrastan is covered with graves, the entire plot must be deemed to bear the same character.”

15. It was further held that “there was no distinction between a ‘public’ graveyard and a graveyard simpliciter. The user of a piece of land as a graveyard established dedication and the land thereby becomes wakf property.” Against this judgment, appeal was taken to the Privy Council which is reported as Ballabh Dass v. Noor Mohammad . A.I.R 1936 P.C 83.. Their Lordships observed:—

“The owner who permits one or two burials to take place in his orchard would not described his orchard as qabristan. If the plaintiff had to make out dedication entirely by direct evidence of burials being made in the ground, and without any record such as the Khasra of 1968, to help them, they would undoubtedly have to prove a number of instances adequate in character, number and extent to justify the inference that the plot of land in suit was a cemetery. The plaintiffs, however, are not in this position. The entry ‘qabristan’ in the khasra of 1968 has to be taken together with the map which shows the whole of plot 108 to be a graveyard.”

As I have said above, apart from the entry in the Jamabandis no proof has been led of actual user of the land as Kabrastan by the Muslims and the statement made by D.W 2 does not inspite confidence as he was not a resident of the village and it has not been stated as to how many tombs there were in the land. The fact remains that the khasra number has become divided in to plots on which houses have been built. If the land had been covered by tombs. I do not think any body would have dared to built houses thereon. The direct evidence of burials being made in the land is conspicuously lacking in the instant cases.

(3) Mehar Din v. Hakim Ali . A.I.R 1935 Lah. 912. in which it was held as under:—

“It is well established that an express dedication is not necessary to create a wakf and that dedication may be assumed from long user, if it is clear that the intention of the owners was to make the dedication.”

In that case long and uninterrupted user had been clearly established. The land was described as gher mumkin takia and kabrastan in possession of the Ahle-e-Islam and was not described as Shamlat Deh although an adjoining plot of land was so recorded. In the present case, the land has been recorded as Shamlat Deh throughout and not in the possession of the Ahle-e-Islam till 1957–1958, but in possession of the Kunjra tribe of Sonepat.

(4) Arur Sineh v. Badar Din . A.I.R 1940 Lah. 119., in which it was held as under:—

“The finding of the court below that the land in dispute was used as a Mahommedan graveyard is amply supported by the entries in the revenue records and the mere fact that in recent years it has not been so used does not deprive it of its character as a “Wakf”.

16. and that

“there seems to be no clear authority to show that dedication of land by a Hindu for the purpose of Muslim graveyard would be invalided either, according to Hindu or Muslim law.”

In the present case, it has not been proved that the land was being used as a Mohammedan graveyard. The mere entry in the revenue record is not sufficient to make it wakf. The dedication by a Hindu will not make any land wakf in view of the definition given in section 3(1) of the Act, whereunder dedication made by a person professing Islam only constitutes wakf.

(5) Moti Shah v. Abdul Gaffar Khan . A.I.R 1956 Nag. 38., in which it was held that a wakf may defined to mean the detention of the corpus in the ownership of God in such a manner that its profits may be applied for the benefit of his servant, and that—

“as a general rule all persons who are competent to make a valid persons who are competent to make a valid gift are also competent to constitute a valid wakf. Islam is not a necessary condition for the constitution of a wakf. Any person of whatever creed may create a wakf but the object for which dedication is to be made should be lawfull according to the creed of the dedicator as well as the Islamic doctrines”.

In view of the definition of Wakf in the Act, this observation no more holds good. It was further held that—

“a cemetery or graveyard is a consecrated ground and is not a private property. Whether a place is a makbra (burial ground) or not depends on the number of persons buried there or evidence of dedication derived from the testimony of witnesses or reputation.”

No evidence has been given with regard to the number of persons buried in the land in dispute nor has any evidence of dedication or reputation been given.

(6) Khati v. Mirza Hossain Beg . A.I.R 1962 Orissa 95., in which it was held:—

“A wakf normally requires express dedication, but if it had been used from time immemorial for a religious purpose, then the land is by user wakf through there is no evidence of express dedication.”

17. and

“When a long period has elapsed since the origin of the alleged wakf user can be the only available evidence to show if the property is or is not wakf; where there is no evidence to show how and when the alleged wakf was created, the wakf may be established by evidence of user; if land had been used from time immoral for religious purpose, such as Masjid, the land is constituted wakf, though there is no evidence of express dedication; the title of the original owner is extinguished and the ownership of the property vests in God and accordingly the public character of the institution may be presumed.”

In the present case there is neither any evidence of dedication nor of long user from time immoral. The only evidence relied upon is the entry in the Jamabandis which in my opinion, is not sufficient.

(7) Faqir Mohamad Shah v. Qazi Fasihuddin Ansari & Others . A.I.R 1956 S.C 713., in which their Lordships held that—

“it can also betaccepted as a matter of law that a wakf normally requires express dedication but if land has been used from time immemorial for a religious purpose, then the land is by user wakf although there is no evidence of express dedication.”

It has not been proved in this case that the land was used from time immemorial as a graveyard. Time immemorial means not the recent past but aboary past, that is, the time beyond which the memory of the man does not go. A period of fifty years or so cannot be said to be time immemorial.

18. The learned counsel for the appellant has, in reply, relied upon the following judgments:—

(1) Jiwan Singh v. Karam Din . A.I.R 1927 Lah. 664., in which it was held that “nobody can acquire by prescription a right to bury the dead in land belonging to other persons, such an easement being unknown to the law.”

(2) Kirpa Singh v. Nabi Baksh . A.I.R 1932 Lah. 256., in which it was held as under:—

“The right to bury or burn dead bodies on land belonging to another person is not an easement recognised by law and cannot be acquired by prescription and where a party claiming right of easement in certain land as being sanctioned by custom, does not raise the plea of customary right or that of implied dedication from long user, in the lower courts, it cannot be allowed to take up those pleas in second appeal and thus set up a new case.”

(3) K. Raushan Din v. H. Mohd. Sharif . A.I.R 1936 Lah. 87., in which it was held as under:—

“A wakf in respect of a burial ground may, in the absence of direct evidence of dedication, be established by evidence of user; but the user from which dedication can be implied must be clearly established and must be of such a character as to be consistent with dedication such user or dedication is required to be public user or dedication. Where the evidence shows no more than that certain persons were many years ago buried in the place, it does not amount to evidence of public user.”

As I have said, above, this land has not been used as a graveyard at least since 1947 and, therefore, it cannot be said that it was wakf property merely because some dead bodies were buried there of which even there is no reliable evidence.

(4) Zafar Hussain v. Mian Mohammed Ghias-u-Din . A.I.R 1937 Lah. 552., in which it held as under:—

“Even an owners unexpressed intention to dedicate property cannot have the effect of a formal dedication. In the absence of any such intention or declaration, no wakf can be said to have been created. It is true that a wakf can be created by user but that user too must be proceeded by an intention the part of the owner to create a wakf. If no such intention is established, user alone will not be sufficient to divest the property of its private character.”

There is no evidence of intention to create a wakf by any body whatsoever in the present cases and only from an entry in the Jama-bandis without proof of user, it cannot be held that the land comprised in Khasra No. 247 was wakf property and vested in the Punjab Wakf Board.

19. The suits were also barred by time, as it was admitted on behalf of the plaintiff-Board that it had not been in possession of the land at any time within twelve years preceding the filing of the suits. Even wakf property can be adversely possessed as has been held in a Full Bench of the Lahore High Court in Maosque known as Masjid Shahid Ganj v. Shromani Gurdawara Parbhandak Committee, Amritsar . A.I.R 1938 Lah. 69., (head note ‘B’):—

“The title of a person claiming adverse possession over dedicated property rests not on Mahomedan or Hindu Law. But on the law of limitation and prescription as it prevails in British India and if personal law has been modified by the statute of limitation, the courts in British India have no option but to give effect to that statute. Hence a mosque can be adversely possessed. It is difficult to see why the building of a mosque or its site cannot be looked upon as ‘property’ merely because the ‘mosque’ has been held to be capable of suing or being sued as a ‘juristic’ person. A mosque is the house of God but is not the deity. A mosque as a building is clearly property.”

20. The decision of the learned trial court on issue No. 3 was correct and it was wrongly reversed by the learned lower appellate court. The land had been described as Shamlat Deh Hazab Rasad Raqba Khewat prior to coming into force of the Punjab Village Common Lands Regulation) Act, 1 of 1954. This land, therefore, vested in the Panchayat of the village under section 3 of the said Act and continues to so rest.

21. For the reasons given, above, these appeals are allowed, the decrees passed by the learned lower appellate court are set aside and the decrees passed by the learned trial court are restored. The parties are however left to bear their own costs throughout.

Append allowed.