Ramaswami, J.:— These appeals are brought by Ramzan Momin and others from the judgment of the Additional Subordinate Judge of Darbhanga declaring that the land in dispute has been used as a burial ground for Moslems from time immemorial but the Moslems have no right to cut the trees or bamboo clumps or to graze their cattle thereon.

The dispute relates to plots 10548 and 10576 of khata nos. 688 and 1088 in village Narauch Behari, touzi no. 6424. In the year 1940 communal troubl arose and in consequence proceedings u/s. 144 and sec. 145 Cr. P.C were initiated. The magistrate held as a result of his enquiry that there were graves over the entire plot 10576 and over 9 kathas and 19 dhurs of plot 10548. As regards 1½ kathas of plot 10548, the magistrate found that Dasrath Raut was in possession. In Title Suit 160 of 1943 Dasrath Raut and others (hereinafter described as plaintiffs) therefore claimed plot 10548 as having been acquired by purchase from the recorded tenants. As regards plot 10576, plaintiffs alleged that they were in possession as next reversioner of Halkhori, the recorded tenant. Ramzan Momin and others (hereinafter described as defendants) claimed the plots as graveyard of Moham-madans. In Title Suit 9 of 1944 the defendants sought a declaration that the portion of 1½ kathas of plot 10548 was the graveyard and there was a prayer also for removal of certain structures which Dasrath Raut had wrongfully erected. In Title Suit 160 of 1943, the Munsif held upon a consideration of the evidence adduced that Mohammadans had a right to use the land as graveyard. The Munsif however found that the plaintiffs had title and accordingly declared their title and possession subject to the use of the land by the defendants as graveyard. The Munsif further held that the defendants had no right to cut the trees or the clumps nor had they any right to graze cattle on the land. In Title Suit 9 of 1944 with respect to 1½ kathas of plot 10548 the Munsif held that the Mohammadans had failed to prove their possession within the statutory period and hence dismissed the suit.

The parties preferred appeals against the decision of the Munsif. The Subordinate Judge upheld the finding of the Munsif in Title Suit 160 of 1943 that the Mohammadans had been using the land as graveyard from time immemorial and had acquired a right to use it as such. He however negatived the claim of the Mohammadans that they had planted the trees and bamboo clumps or that they were entitled to 11 the use thereof. He accordingly dismissed the appeal preferred by the defendants. As regards Title Suit 9 of 1944 the learned Sub-ordinate Judge held that the Mohammadans had established right to use the land as graveyard. He accordingly allowed the appeal and granted a declaration to that effect.

These appeals have been brought on behalf of the defendants against the judgment of the Subordinate Judge.

The main question debated, is whether the land has become wakf on account of its being used as a burial ground from time immemorial and whether the title of the plaintiffs has become extinguished.

It is necessary to state at the outset that the Subordinate Judge committed an error of law in holding that upon the facts established the Mohammadans “had acquired casement by grant”. The, conclusion of the Subordinate Judge is defective in law. It is a conception unknown in law to dedicate a piece of land to a limited section of the public, such as the inhabitants of a village. The doctrine of lost grant cannot therefore furnish a true legal basis of the right of the defendants. The doctrine was organised in English law as a technical fiction to enable title to be made by prescription despite the impossibility of proving “immemorial user”. But a right acquired by the doctrine of lost grant had to be attached to and descend with an estate, and since the right originated as grant its owners had to be such persons as were capable of being the recipients of a grant under English law. Similarly, an casement must be attached to and descend with an estate; and it is connected with a definite person or his ancestors. Therefore neither the conception of an casement nor the doctrine of lost grant can be applied to such, rights as those of the inhabitants of a particular village to continue an ancient use of some land. Upon the facts found it was not permissible for the Subordinate Judge to hold that there was an casement since no casement could be acquired by fluctuating body of persons. But the correct legal finding is that the Mohammad ans had established a customary right to bury their dead in the land in dispute. This view is confirmed by the decision of the Judicial Committee in L. Misra v. Rangl in which Lord Radcliffe pointed out that the true legal basis of such rights lay in custom and that the doctrine, of lost grant or of prescription has no application to such right as those of the inhabitants of a particular locality to continue an ancient and established use of some piece of land.

In support of these appeals the main argument stressed by Mr. Anwar Ahmad is that upon the findings of fact the learned Subordinate. Judge ought to have held that the land in dispute has become wakf and the title of plaintiffs had become extinguished. Learned counsel maintained that the Mohammadans had a right to use the land in any manner they liked, in particular to appropriate the trees and bamboo clumps standing thereon. Learned counsel founded his argument upon Court of Wards v. Ilahi Bakhsh in which the Judicial Committee held upon the evidence that the land known as Mai Pak Daman gravevard which had been used from time immemorial by the Mohammadan community of Multan for the purpose of burying their, dead, formed part of a gravevard set apart for the Mohammadan Community, and that by user, if not by dedication, the land was wakf. The same principle is laid down in Ballabh Das v. Nur Mohammad in which the Judicial Committee held upon examination of the survey papers that the plot in dispute was a Kabristan dedicated for that purpose constituting it a wakf and that defendant no. 1 had no title thereto. These authorities strongly support the contention of learned counsel that if land had been used from time immemorial for a Moslem burial ground the land is constituted wakf, though there is no evidence of express dedication. If a decision is to be reached according to the principle of the Mohammadan law there is no doubt that if land is used from time immemorial for a religious purpose, a wakf is constituted, the title of the original owner is extinguished, and the ownership of the property vests in God according to the doctrine of the two disciples—the land becomes in very deed “God's acre”.

But the problem is whether the rules of the Mohammadan law can be applied in deciding the rights of the parties. What system of law ought to govern this case in which the parties to the dispute are of different religious persuasion? To put it in other words, what system of law shall constitute the lex causae in accordance with which the rights of the parties should be determined? The ordinary principle is that the lex situs governs all questions relating to land and rights therein. But the Muslim law is not the common law of India. It is only the law so far as the laws of India have directed it to be observed. The Muslim law is under particular legislative enactments applied by Indian Courts to certain classes of matters and certain classes of people as part of the law of the land, which Courts administer as being within their knowledge and competence. Section 15 of Regulation VII of 1793 stated: “that in suits regarding succession, inheritance, marriage, and caste, and all religious usages and institutions, the Mahomedan laws with respect to Mahomedans, and the Hindu laws with regard to Hindus, are to be considered as the general rules by which the Judges are to form their decisions.” Section 9 of Regulation VII of 1832 made the following declaratory enactment: It is hereby declared, however, that the above rules are intended, and shall be held to apply to such persons only as shall be bona fide professors of those religions it the time of the application of the law to the case, and were designed for the protection of the rights of such persons, not for the deprivation of the rights of others. Whenever, therefore, in any civil suit, the parties to such suit shall be of different persuasions, where one party shall be of the Hindu and the other of the Mahomedan persuasion, or where one or more of the parties to the suit shall not be either of the Mahomedan or Hindu persuasion, the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they would have been entitled. The present legal position is stated in section 37 of Bengal, Agra and Assam Civil Courts Act XII of 1887 which enacts that the Civil Courts of those Provinces shall decide all questions relating to “succession, inheritance, marriage or any religious usage or institution,” by the Mahomedan law in cases where the parties are Mahomedans, except in so far as such law has, by legislative enactment been altered or abolished. In cases not mentioned above not provided for by any other law for the time being in force the decision is to be according to justice, equity and good conscience. If the provisions of the section are applied, it is plain that in the present case, the matter must be decided according to “justice, equity and good conscience” which has been interpreted by the Judicial Committee to mean the rules of English law so far as they are applicable to Indian society and circumstance Waghela v. Masluddin If the rules of English law were to be applied it is plain that the defendant had acquired a customary right to bury their dead in the land, that subject to this right plaintiffs are entitled to a declaration of their title and possession thereon.

This view is supported by authorities. In Sheikh Kudratulla v. Mahini Mohan Shaha a Full Bench of the Calcutta High Court held that Mohammadan law as such is not the law of India and that such a law as administered by a Muslim Government is not necessarily the law as administered by the courts of India; Sir Barnes Peacock, C.J observed: The Mohammadan law is not the law of British India. It is only the law so far as the laws of India have directed it to be observed. We are not bound by all the rules of the Mohammadan law which are in force under Moham madan Governments nor by the law as laid down by the Fatwa Alumgiri, the digest of Mohammadan law, prepared under the Emperor Aurungzebe Alumgir. We are bound by Regulation IV of 1793 except so far as that law has been modified by Regulation VII of 1832”. In that case, the suit had been brought by a Mohammadan against a Hindu purchaser to enforce a right of preemption; the vendor being a Mohammadan. It was held by the Full Bench that a Hindu purchaser was not bound by the Mohammadan law of pre-emption in favour of a Mohammadan co-partner although he purchased from one of several Mahomedan co-parceners, nor is he bound by the Mahomedan law of pre-emption on the ground of vicinage. A right of pre-emption in a Mahomedan does not depend on any defect of title on the part of his Mahomedan co-partner to sell except subject to his right of pre-emption, but upon a rule of Mahomedan law, which is not binding on the Court, nor on any purchaser other than a Mahomedan. It was held that on grounds of justice, equity and good conscience, a Hindu could not be bound by any provision of the personal Mohammadan law with regard to this matter. This case was followed by a Full Bench of the Allahabad High Court in Dwarka Das v. Husain Bakhsh in which the plaintiff brought a suit to enforce a right of pre-emption in respect of a dwelling house. The question arose whether a suit to enforce right of pre-emption founded on Moham madan law was maintainable when the vendor was a Hindu. It was held by the Full Bench that no suit will lie to enforce a right of pre-emption based on Mohammadan law.

In view of these considerations I think that the decrees granted by the lower appellate court are correct and that these appeals ought to be dismissed with costs.

Sarjoo Prosad, J.:— I concur.

Appeals dismissed.

S.H