Motishah v. Abdul Gaffar Khan

1. This is defendants' appeal from a decree declaring (1) that khasra No. 434, area 4.30 acres, and Khasra No. 444, area 0.39 acre, total area 4.69 acres, marked ADFT in the plaint map are a Muslim public graveyard and wakf property of which the defendants are mere caretakers and (2) that they have no right to build any structure on the said two khasra numbers or interfere in any way with the use of them by the Muslim community of Raipur.

2. The decree also granted a mandatory injunction against the defendants to demolish the buildings shown in read in the plaint map, marked STUV, GHIJKL, MNOPQREF, and also those marked by letters KLMNOPQRE on the plaint map, to remove the superstructures thereon and to restore the land to its original condition within two months of the decree. It further granted a perpetual injunction restraining the defendants from building any structure on the said two khasra numbers and from interfering in any way with the rights of the Muslim community. The suit was instituted with the permission of the Court under O. 1, R. 8 of the CPC, on behalf of the Muslim community of Raipur. The reference to KLMNOPQRE appears to be a mistake.

3. This graveyard area, shown in the plaint map, is in the Moudhapara locality of Raipur. It is bounded on the east by the Raipur-Bilaspur road, on the west by the abadi of Chamarpara, on the north by a pukka Ganj road and a Muslim graveyard beyond it, and on south by the graveyard of Bohri Jamat. Its area shown in the plaint map is 206021½ square feet i.e 4.73 acres approximately.

4. There is no documentary evidence available of any period prior to 1864. Exhibit D-37 is the kistwar map of Raipur prepared in the year 1864. The whole of khasra No. 434 is shown as garden and khasra No. 429 to the north is shown as Kabrastan. Khasra No. 435 to the south is shown as house-site. Exhibit D-49A, dated 13-10-1864, is the application of Girdharsao, malguzar of Raipur, for recoiling his name in place of Jummanshah in respect of 5 acres of land, the then khasra No. 434, which the landlord had given to Jummanshah 40 years earlier in charity revenue-free.

5. It was stated in the application that 4¾ acres of the Hared out of these 5 acres was a garden of mango and tamarind trees etc., and on the rest of the land there were a house and a well. Exhibit D-49, dated 8-2-1865 is the order of the Assistant Settlement Officer substituting the name of Girdharsao in place of Jummanshah on the ground that the latter was dead and trace of his son Gulabshah was not known.

6. It was admitted in the lower Court that Girdharsao obtained possession of the land through Revenue Court in or about 1865. It was, however, pleaded that on the return of Gulabshah in 1865 Girdharsao executed a Sanad, dated 5-7-1865, in favour of Chandbi, widow of Jummanshah, and her family. Exhibit D-14 is a certified copy of the Sanad Patra. The lower Court rejected it on the ground that the execution of the original was not proved.

7. In the settlement of 1883–1884 this land was marked khasra No. 346, area 4.69 and khasra No. 344, area 0.39 acres. The former khasra number was recorded as Kabrastan and Milkivat Sarkar. The latter was recorded “grass” of the malguzar. Khasra No. 344 is situated between khasra No. 346 and the Raipur-Bilaspur road on which it abuts. The other Kabrastan of the Muslims which the defendants call public Kabrastan, bears No. 242 in this settlement.

8. In the settlement of 1907-8 khasra No. 346 and khasra No. 344 were respectively marked khasra No. 550 area 4.69 and khasra No. 549, area 0.35 acre. Khasra No. 550 is described as “grass” and property of nazul Sarkar. In the remarks column mention is made of graveyard, several trees and possession of Gulabshah. Whether the possession refers to graveyard or trees is not clear. The entry as regards khasra No. 549 described it as grass land of the lambardar.

9. In the remarks column it is stated

10. (compound of graveyard). In the settlement of 1928–1929 the corresponding numbers are khasra No. 434, area 4.30 and khasra No. 444, area 0.39 acres. The area of 434 was reduced as a portion of it was acquired by the Government a road. In this settlement 434 is described as Kabrastan and khasra No. 444 is described as malguzari grass land and compound of the Kabrastan.

11. It appears that a portion of the original khasra No. 434 came to be utilized as graveyard sometime after 1864. According to the defendants, it was their private graveyard and continued to be so till the date of the suit. Exhibit P-7, dated 15-9-1889, is the letter addressed by Gulabshah to the Muslim community in which he admitted that he was a servant of the community looking after the graveyard, and that he did not obstruct anyone from raising the wall of the compound.

12. He expressed his willingness to give up the service if the community so desired. He however requested them to continue him on account of his straitened circumstances. Exhibit P-6, dated 13-10-1899 is the agreement executed by him stating the conditions on which he was to work in future. He admitted that he was only a mahafiz (caretaker) of the Kabrastan till that date and will continue as such thereafter.

13. He also agreed to demolish his house to the extent it was inside the compound of the graveyard and to build a house for his residence on the land towards the east connected with the graveyard to its front from outside the compound. He agreed to carry out the orders and directions of the Panchas and to be removed from service if he in any way contravened those orders or the terms of the agreement (Exhibit P-6).

14. On 27-10-1915 the Muslims of Raipur made an application (Ex. D-18A) to the Deputy Commissioner for the removal of Gulabshah from khasra No. 550 (recorded as Kabrastan) on the grounds that he had constructed a house thereon, that he was extorting money and interfering with the burials and that he was otherwise a nuisance to the Muslim community as stated in the application.

15. This application was disposed of by the order Ex. D-18 dated 18-4-1916. Gulabshah was informed that the land was nazul and not his private property and the Muslim community was referred to a civil suit to remove him and to a criminal Court if he was desecrating the graves.

16. On 10-1-1917 the lambardar instituted civil suit No. 9 of 1917 against Gulabshah for possession of the grass land, khasra No. 549, on the ground that the defendant was including it within his boundary limits. Exhibit D-51 is the plaint. The defence was that the land formed part of the graveyard and evidence was adduced in support of this defence and also to prove that the eastern wall was constructed by the defendant long ago.

17. Exhibits D-19A and D-19B are respectively the judgment and decree in that suit, dated 20-8-1917. Exhibit D-19C, dated 9-2-1918, is the judgment of the appellate Court affirming the decree of the trial Court. It was held that the lambardar was the owner of the land. The defence was not accepted. The Courts took the view that the entry “Hatha Kabrastan” must have been made as the land was between the graveyard and the public road.

18. There was the nazul settlement in 1919–1920. Exhibit D-50, dated 20-6-1920, is the statement of Gulabshah made before the Settlement Officer that he had no objection to the record of the Kabrastan as nazul land which was so recorded since the settlement of 1883–1884. Exhibit D-51 is the order, dated 20-6-1920, passed by the Settlement Officer recording khasra No. 550 as Kabrastan free of rent for the duration of that settlement.

19. It is stated in the order that Gulabshah looked after the Kabrastan and his house stood in that area and that he did not press his claim as a proprietor. These proceedings referred to khasra No. 550 area 4.69 and did not refer to khasra No. 549.

20. During the settlement proceedings of 1928–1929 Gulabshah made the application Ex. D-33, dated 4-8-1928, claiming proprietary rights over the Kabrastan. The Muslim community claimed the khasra No. 434 be recorded as Kabrastan, the property of that community. Exhibit D-32, dated 28-4-1929, is the order of the Settlement Officer on the latter application.

21. It was ordered that khasra No. 434 (old No. 550) was to continue to be recorded as nazul Sarkar and its use as Kabrastan was be mentioned in the remarks column, as enquiries showed that it was used as cemetery for several years from before the settlement. It was further ordered that Gulabshah be recorded as in possession of the trees.

22. Exhibit D-34 is a certified copy of the ‘Statement of disputes’ raised before the Settlement Officer on the application Ex. D-33 made by Gulabshah. It refers to both Khasra No. 434 (old 550) and khasra No. 444 (old 549). From the report of the Assistant Settlement Officer noted therein it appears that Gtilabshah claimed proprietary right of khasra No. 549 also.

23. The malguzar opposed this claim and submitted that he obtained possession of the plot through the civil Court. The Assistant Settlement Officer reported that the record as regards the Kabrastan was proper and as regards khasra No. 444 that Gulabshah should be recorded as sub-tenant without rent as he was in possession and had grown chillies that year.

24. The certified copy of the order of the Settlement Officer does not make an intelligent reading. The original record was therefore sent for. The order runs thus:

“Possession of the applicant on the trees is recorded in the settlement Misl and now.

It also appears that he is in possession of the trees in khasra No. 444 and that (he) is recorded in the attestation khasra sub-tenant of grass land.

As regards the land, record him as a trespasser bila lagan.

Parties informed.

Sd/C.D.D

28-4-29.”

25. It was recorded in the khasra for the year 1929–1930 (Ex. D-22) that khasra No. 434, area 4.30 acres, w;ts grass land of nazul Sarkar. It was recorded in the remarks column that cultivation was done under the management of the department of nazul, that the graveyard of Muslims was in possession of Gulabshah Fakir, that Gulabshah on his behalf gave a sub-lease to one Parsadi Dhimar and that there was a house standing on 0.15 acre.

26. In the subsequent years also Gulabshah is shown in possession of Kabrastan and a house is shown standing on 0.15 acre. There is no entry about cultivation.

27. In the year 1929–1930 khasra No. 444 was recorded as grass land of the lambardar and in the remarks column it was stated against it “Hatha Kabrastan, Sitaphal 50 possession of Gulabshah”. In the remarks column for the year 1931–1932 it is stated that

“Gulabshah has been in possession of the said number since long and he has sown crop of chillies and is in possession of Sitaphal trees.”

28. In the year 1934–1935 it is added “Gulabshah made it abadi.” In the subsequent years Gulabshah and after him his sons were shown in possession. Gulabshah died in 1936. (See Exs. D-25, D-26 and D-27).

29. During the pendency of the suit unsuccessful attempts were made by the Muslim community to get this record of khasra No. 444 and the wazib-ul-arz (Ex. P-14) amended to include this land in the Kabrastan.

30. Plaintiff's case is that both the khasra numbers form one unit, were used for burial of the dead, and were Kabrastan enclosed by walls on all sides. The entry of khasra No. 444 as grass land was erroneous. The Muslim community of Raipur has been in possession of the graveyard and burying its dead there from time immemorial.

31. The authorities seem to have granted this land to the Muslim community by the end of the 18th century for their burial ground as the old Muslim graveyard was probably covered. It was stated that the settlement entries are not consistent between themselves but they had established that both the khasra numbers formed the cemetery of the Muslims.

32. It was stated that there was the caretaker's house where Gulabshah and his father Jummanshah used to live with the permission of the community as licensees and caretakers of the Kabrastan and that after their death the defendants are living, in the house and are acting as caretakers. It was asserted that the caretakers are liable to be removed by the community at its will, and that Gulabshah had accepted this position and executed the document Ex. P-6, dated 13-10-1899.

33. The defendants have wrongfully encroached on the land of the community and constructed building thereon from about 1947. They are therefore liable to remove those structures and vacate the land.

34. The defence is that Jummanshab, Gulabshah, and the defendants have been in possession of the entire land in suit as owners and not on behalf of the Muslim community, that the land was never used as a Kabrastan by the Muslim community as such, that it was not a public graveyard but a private graveyard of “Madaria Khandan” (a religious sect amongst the Muslims) of which Gulabshah was the Khalifa of the Sajjadnashin of the sect residing at Nagpur.

35. Jummanshah was also a Khalifa. It was further stated that khasra No. 444 was never used for burying the dead. It was denied that the defendants or any of the ancestors ever acted as caretakers appointed by the Muslim community of Raipur. The document dated 13-10-1899 and its genuineness were denied.

36. The lower Court did not accept the defence and decreed the suit.

37. The learned counsel for the appellant has pressed the following contentions:—

(a) The land covered by both khasra No. 434 and khasra No. 444 was originally gifted to Jummanshah. The gift was affirmed by the lambardar by the Sanad dated 5-7-1865. The land is therefore the property of the defendants.

(b) A portion of the land was used for burying the dead of the Madaria sect with the permission of Gulabshah. Such use cannot make the land wakf property.

(c) The land was never the graveyard of the Muslim community.

(d) Khasra No. 444 was never used as a graveyard. In spite of the grant, the landlord obtained a decree for its possession in 1917; but he did not execute it. The judgment-debtor Gulabshah having continued to remain in possession had perfected his title by his adverse possession for more than tweleve years. This khasra number is therefore the defendants' property.

(e) The possession of Gulabshah and of the defendants was not that of a caretaker but as owners.

(f) The suit is barred by time.

38. The first question for decision is whether the certified copy (Ex. D-14) of the Sanad Patra, dated 5-7-1865, is admissible in evidence. The Sanad Patra was not registered. The lower Court held that the defendants have proved that the original was lost, and that secondary evidence of its contents was admissible. In the absence of any evidence about its execution the lower Court held however that the document was not proved. It refused to raise the presumption of execution, etc., under Section 90 of the Evidence Act.

39. The written statement was filed on 6-10-1951 and the certified copy of Ex. D-14 was apparently obtained on 18-10-1951. The original was therefore not in possession of the defendants on that date. It was produced in the revenue case referred to in the certified copy Ex. D-14. The record of that case was not sent for. According to the evidence of D.W 9 Motishah, he had taken back this document from the Revenue Court and gone to Nagpur for consultation and on his return this document and a will were lost on the way.

40. He further stated that he made a report of the loss of the document at the police station, Drug. Exhibit D-13 is said to be the private copy of the report. The original report was not produced and its loss has not been proved. Exhibit D-13 cannot therefore be admitted to prove its contents; but the fact that the report was made by him could be proved by Motishah (D.W 9).

41. The learned Judge of the lower Court who has seen this witness give evidence has believed him on this point and we see no reason to take a different view. The loss having been proved, Ex. D-14 is admissible in evidence to prove the contents of the original.

42. Under Section 90 of the Evidence Act, if a document, purporting or proved to be thirty years old, is produced from any custody, which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested.

43. If the original had been produced, no doubt the Court had the power to presume due execution and attestation of the document; but the presumption of due execution and attestation of the original cannot be drawn unless the document is produced. In — ‘Basant Singh v. Brij Raj Saran Singh,’, AIR 1935 PC 132 (A), the Privy Council held that the production of a copy is not sufficient to justify the presumption of due execution of the original under Section 90 of the Evidence Act.

44. The document in question was not relied on by Gulabshah or his mother or by the defendants at any stage till about the time of the disputes which led to suit though they had occasions to do so. In — ‘Kalu v. Bapurao’, AIR 1950 Nag 6 (B), it was held that when an ancient document is lost and a certified copy or other copy is proved, it can only prove its contents but not its execution. The lower Court had therefore rightly excluded this document from consideration.

45. There is no other evidence of the alleged ownership of the defendants or their ancestors. They cannot rely on the recitals in the application (Ex. D-49A) dated 13-10-1864 because thereafter the lambardar obtained possession of the land through the Revenue Court. Not only that, he obtained a decree against Gulabshah for possession in 1917. There is no proof that the decree was not executed.

46. As will be shown hereafter, the character of the subsequent possession of Gulabshah and the defendants cannot be regarded as that of the owner but must be regarded as on behalf of the wakf.

47. The controversy as regards the character of the two Khasra numbers must be separately considered. By the express order of the Settlement Officer passed on 28-4-1929 (Ex. D-32) khasra No. 434 was recorded as the property of Government used as a graveyard. This entry was made in the current settlement of 1928–1929 (Deshmukh Settlement).

48. This khasra number is one of the seven khasra numbers shown as graveyard in the wajib-ul-arz of the current settlement Exhibit P-14, with the following directions:

“The lambardar shall neither cultivate the land mentioned from paras 1 to 7 nor make any other use thereof nor allow others to cultivate the same or make any other use thereof.”

49. Under Section 78 of the Cental Provinces Land Revenue Act, 1917, the Settlement Officer had to ascertain and prove the custom in each estate, village, or mahal, and under S. 79 lie had to prepare the village administration paper (wajib-ul-arz) embodying the customs recorded and other matters. Under these provisions the Settlement Officer had ascertained and recorded the custom regarding the burial ground and entered it in the wajib-ul-arz (Ex. P-14) after deciding the objections.

50. Under this head of the wajib-ul-arz lie had to ascertain the class of persons entitled to use the burial ground. There is no mention of use of the burial ground by any particular sect of the Mahomedan community. The entry is general. Before the Nazul Settlement Officer Gulabshah had agreed in 1920 to this number being recorded as nazul Sarkar; and it was recorded as the graveyard of Muslims. Gulabshah's right was not admitted, Ex. P-22).

51. The claim that it was a private burial ground of the Madaria sect was not advanced before the Settlement Officer in 1928. On the contrary Gulabshaha claimed ‘malik makbuza’ rights for himself. (Ex. D-33). That claim was negatived.

52. Under Section 80 of the Land Revenue Act, any person aggrieved by any order or entry made under S. 78 or S. 79 or other sections specified in S. 80, may institute a suit in civil Court to have such order or entry cancelled or amended; and subject to the result of such a suit, if any, the order or entry is conclusive.

53. The limitation for such a suit is one year from the date on which the assessment was offered to the proprietor. No such suit was brought by Gulabshah. The entry in Ex. P-14 as to khasra No. 434 is therefore conclusive. It is not therefore, now open to the defendants to agitate the question about their alleged ownership of khasra No. 434 or its character as Kabrastan.

54. The case, of khasra No. 444 is not free from difficulty. The defendants' claim on the strength of the alleged Sanad Patra (Ex. D-14) cannot be entertained as the document is not admissible in evidence. There is no evidence that the name of Gulabshah was got entered in the Revenue record in pursuance of this Sanad Patra. In fact, his name does not appear anywhere in those records either as a proprietor or as a tenant.

55. As already shown, the khasra number was recorded as grassland of the lambardar in the settlement of 1883–1884 anti in all successive settlements. Not only that, in 1917 the lambardar obtained against Gulabshah a decree for possession of this khasra number.

56. The defendants further contend that although the lambardar had obtained a decree for possession, he had not executed it and the judgment-debtor. Inning continued in possession, acquired title to it by adverse possession for more than 12 years after the decree. It is said that having acquired title by prescription against the true owner, the defendants, who are his descendants, are entitled to resist the plaintiff's suit.

57. Alternatively it is contended that the title rests with the lambardar and that in either case the plaintiffs cannot succeed as they have absolutely no title to the property.

58. The question for determination is whether the plaintiffs and the other members of the community are entitled to this khasra number as part of the graveyard and as wakf property. They must succeed on the strength of their title and not on the weakness of the defendants' title.

59. According to the former, the entire land of the two khasra numbers was granted by the authorities about the end of the 18th century as the old graveyard in Moudhapara was covered; and it was since then used as burial ground for purposes appurtenant thereto. It has consequently become wakf property at any rate by user, and private ownership thereby came to an end. They thus claim the land of both the khasra numbers as wakf of a public nature.

60. As regards the litigation of 1917 it is said that it is of no consequence as the plaintiffs do not derive their right through the lambardar subsequent to the decree.

61. A wakf may be 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 servants. As a general rule it may be stated that all 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.

62. Any person of whatever creed may create a wakf but the law requires that the object for which dedication is to be made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. A cemetery or graveyard is a consecrated ground and is not a private property. Whether a place is a ‘makbara’ (burial ground) or not depends on the number of persons buried there or evidence of dedication derived from the testimony of witnesses or reputation.

63. When a place is found not to be a ‘makbara’ but only one or two bodies are buried, the actual place where the bodies lie buried is consecrated. When a body has been buried in the ground, whether for a long or a short time, it cannot be exhumed without some excuse, but it may lawfully be exhumed when it appears that the land was usurped or another is entitled to it under a right of pre-emption.

64. A cemetery once created continues to be so even though there remain in it no traces of the dead, not even bones. (Ammer Ali's Mohammedan Law, Vol. I, chapter on wakf.) If the land has been used for a long time as a burial ground, it is by user wakf, though there is no evidence of an express dedication.

65. In — ‘Ballabh Das v. Nur Mohammad’, AIR 1936 PC 83 (C), their Lordships held that in order to make out dedication as a makbara by direct evidence of burials, without any documentary evidence, it is necessary 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. It was further held that private ownership of the land of the kabrastan destroys such a character according to the ordinary concepts of Mahomedan law. The two are inconsistent.

66. In the face of this law it is idle to contend that the user of the land as graveyard did not alter the private character of the land and did not affect the ownership of Jummanshah and his descendants and that they are entitled to contend that the graves on the land must be removed. The learned counsel relied on certain passages from Hamilton's Hidaya and Mulla's Mahomedan law, but they do not countenance such an extraordinary proposition.

67. Relying on — ‘Zaffar Hussain v. Mohammad Ghiasuddin’, AIR 1937 Lah 552 (D), the learned counsel for the appellants further contends that though it is true that wakf can be created by user, that user must be preceded by an express intention on the part of the owner to create a wakf, and that in the absence of proof of such intention user will not be sufficient to divest the property of its private character.

68. These observations in the Lahore case were obiter. It was found that even the user of the sarai in question was not proved. The Privy Council decision was apparently not brought to the notice of the learned Judges. Their view cannot be accepted in view of the clear pronouncement of the Judicial Committee.

69. In — ‘Abdul Rahim Khan v. Fakir Mohammad Shall’, AIR 1946 Nag 401 (E), which was a case of musjid, it was held that when a musjid which is wakf and other property are situate in one compound with one gate so inter-connected as to form part of one property and the latter has been utilized for a considerable number of years by the public for public purposes, the other properly is appurtenant to the musjid and is, therefore, wakf.

70. It is the plaintiff's contention that from the beginning both the khasra numbers 434 and 444 formed one piece of land and was used as a graveyard and for purposes appurtenant thereto.

71. In para 30 of its judgment the lower Court has observed that it was admitted on all hands that the present area of the Kabrastan was comprised of khasra Nos. 434 and 444. There is no such admission in the pleadings; but apparently the case must have been argued on that footing. The judgment therefore proceeds to determine whether the entire area can be regarded as wakf property.

72. So far as khasra No. 434 is concerned, there is absolutely no doubt that it is a Kabrastan since sometime after 1864. The defendants themselves had admitted this, but their contention is that it is a private burial ground of the Madaria sect. Defendant 1 Motishah as D.W 9 and his other witnesses had to admit that its use was not so restricted. According to the oral evidence, there are more than 2000 graves in this Kabrastan and this is not seriously disputed by the defendants.

73. According to Motishah there were about 10 or 12 people professing faith in Shah Madar and belonging to the Madaria sect. He admitted that Muslims in general hold Shah Madar in esteem and that dead bodies from all over the town used to be brought in this Kabrastan for burial. There is evidence that bohras were buried there before another burial ground was consecrated for them.

74. The question for consideration is whether khasra No. 444, which is not recorded as Kabrastan but only as a compound of the Kabrastan, can be said to be wakf property. It is admitted by Motishah (D.W 9) that the whole area of both the khasra numbers is bounded by compound wall as one unit. This is clear also from the evidence of the defendant's other witnesses.

75. There is no such wall or even a fencing between the two khasra’ numbers. The defendants suggest that the two are divided by a row of tamarind trees, but there is no reliable evidence that these trees mark the dividing line. The spot inspection note shows that these trees are well inside khasra No. 434.

76. It is also clear from the admission of Motishah that the wall of the eastern side i.e, on the Moudhapara Road (Raipur-Bilaspur Road) was of stones and the lower Court found the old stone foundation at the time of spot inspection. It is further admitted that the house of Jummanshah was on the present khasra No. 444 in 1899.

77. Gulabshah had agreed to remove it towards the east. Motishah has admitted that the biers used to be taken through the gate on this road, many times in a procession of 50-100 persons, used to be kept near the well, and alter offering prayers used to be buried. People vised to do wazu (ablutions) on the well it is thus admitted that the gate and passage to the admitted Kabrastan was over khasra No. 444.

78. While the pukka mosque in the adjoining Muslim Kabrastan was under construction, a kaccha mosque was erected on khasra No. 444 and was used for two years. If prayers are offered once in a mosque it is sufficient to constitute a good dedication. It becomes wakf and it ceases to be private property.

79. The whole land was known as Takia of Gulabshah and was also regarded by the Muslim community as graveyard. This evidence supports the settlement entry that khasra No. 444 was the compound of the Kabrastan.

80. The lower Court therefore found that the whole land including khasra No. 444 was used as a graveyard for burials and for purposes appurtenant thereto.

81. There is clear evidence, relied on by the lower Court, that there were graves on both sides of the eastern gate. The fact that this was not found at the time of spot inspection does not discredit the evidence. The defendants had encroached on the graves and built houses thereon. There is evidence that there were graves at the sites of new constructions which were made in 1947 and onwards. On spot inspection the learned Judge, a Mahomedan, carried the impression that the whole site and the surroundings were an extensive graveyard.

82. Another contention advanced by the learned Counsel for the appellants is that the fact that the Muslim community did not get the khasra No. 444 recorded as Kabrastan in the various settlements negatives their claim. This contention cannot be accepted. If the wakf is already established, the fact that the Muslims of Raipur did not make any such claim before the Settlement Officer will not deprive the wakf of its character.

83. The next point for consideration is whether Gulabshah and after him the defendants, exercise any acts of ownership over tills property. As already pointed out, Gulabshah had himself admitted as far back as 1899 the wakf and his position as a caretaker (Exs. P-6 and P-7). There is no force in the contention of the learned Counsel for the defendants that these are forged documents.

84. Both are more than thirty years old and were produced from a custody which the lower Court considered proper. It was therefore entitled to presume that they were executed by Gulabshah by whom they purport to have been executed. There is no evidence in rebuttal. Exhibit P-6 is written on a non-judicial stamp which bears the rubber stamp of the Raipur Treasury, dated 29-9-1899, and the endorsement of the stamp vendor, dated 13-10-1899.

85. As deposed to by Qazi Abdul Ghafar Khan P.W 11) it was signed by his grand-father who was then the Kazi of Raipur and a member of the Juma Musjid Committee. He died about the year 1939. The witness found these documents amongst the papers of his grandfather relating to his malguzari villages.

86. The attack on the genuineness of these documents is that Gulabshah was illiterate and did not even know to sign his name, while the documents purport to bear his signature and that these documents were not produced in the settlement proceedings of 1907-8 or in any subsequent settlement proceedings or before the Revenue Officer in the revenue case of 1916.

87. The third ground of attack is that P.W 4 Akbar Husain did not identify the signature alleged to be that of his father Sheikh Chand. There is no evidence that Sheikh Chand, whose name appears on the document, was the father of P.W 4. P.W 4 has not stated that he was conversant with the handwriting of his father. His evidence is therefore inconclusive.

88. There was no occasion to produce these documents in the settlement proceedings. The proceedings before the Revenue Officer taken in the year 1916 were misconceived; that officer had no jurisdiction to grant the relief claimed. There is no reliable evidence that Gulabshah could not sign his name. The evidence of Ramprasad (D.W 1) that he was illiterate and used to put his thumb-mark on his pay-roll does not carry conviction.

89. Anyway, that witness was deposing to the period prior to 1896. It is likely that Gulabshah may have learnt to write his name. It is contended that this is unlikely because the two documents, Exhibits D-16 and D-17, executed by him in the year 1935, bear his thumb-marks. It is to be noted that the age of Gulabshah is shown in these documents as 100 years.

90. It is likely that in his old age he could not properly write his name and so his thumb-marks were taken. The evidence relied on is insufficient to rebut the presumption of due execution of Exhibits P-6 and P-7 under Section 90 of the Evidence Act.

91. It is next contended that the fact that the Revenue Officer did not remove Gulabshah in 1916 at the instance of the Muslim community supports the defendants' case that they are in possession as owners and not as caretakers. As already pointed out, these revenue proceedings were misconceived. Even there the Revenue Officer had warned Gulabshah that the property was not his.

92. The last contention pressed by the learned Counsel is that the suit instituted on 29-3-1950 is barred by time. This contention is without any force. The occasion for the suit arose when the defendants started construction of buildings in or about the year 1947 and thereby denied the wakf. The appeal must therefore fail and is dismissed with costs.

93. Appeal dismissed.