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Hassan Bakhsh Vs. Ilahi Bakhsh - Court Judgment

LegalCrystal Citation
SubjectProperty;Trusts and Societies
CourtMumbai
Decided On
Judge
Reported in(1913)15BOMLR436
AppellantHassan Bakhsh
Respondentilahi Bakhsh
DispositionAppeal dismissed
Excerpt:
.....of a certain mahommedan saint, who lived in the 12th century, was buried in a shrine within the area in suit and for hundreds of years the land about the saint's tomb had been used as a burial ground ; that the predecessor in title of the defendant took part in giving effect to a resolution passed in 1858 by a representative public meeting of mahommedans that the land in dispute, which was an old graveyard, should be kept open for the whole of the mahommedan community ; that in the becord of bights of the last settlement it was entered as 'as in possession of the mahommedans ' and was described as kabristan or ghairwumkin kabristan, that is 'graveyard or unculturable land forming portion of a graveyard ' and in the ownership column the name of the representative of the defendant was..........a large tract of unculturable or uncultivated land generally known as the mai pak daman or the pak daman graveyard. from time immemorial it has been used by the mahommadan community in multan for the purpose of burying their dead. but there is no evidence to show when or how it was originally set apart for the purpose of a burial ground.2. in the judgment of the chief court in this case there occurs the following passage giving, as their lordships think, a very probable account of the origin and early history of this graveyard :-bahawal hakh, the famous saint, was born in the 12th century of the christian era. he had a son, sadr-ud-din, whose wife was called mai pak daman. she was revered as a saint, and her body was buried in a shrine within the area in suit. no one can tell when the.....
Judgment:

Macnaghten, J.

1. In the immediate neighbourhood of the city of Multan there is a large tract of unculturable or uncultivated land generally known as the Mai Pak Daman or the Pak Daman graveyard. From time immemorial it has been used by the Mahommadan community in Multan for the purpose of burying their dead. But there is no evidence to show when or how it was originally set apart for the purpose of a burial ground.

2. In the judgment of the Chief Court in this case there occurs the following passage giving, as their Lordships think, a very probable account of the origin and early history of this graveyard :-

Bahawal Hakh, the famous saint, was born in the 12th century of the Christian Era. He had a son, Sadr-ud-din, whose wife was called Mai Pak Daman. She was revered as a saint, and her body was buried in a shrine within the area in suit. No one can tell when the surrounding land was definitely set aside as wakf ; but we can safely conjecture that, in the first instanco, Musalmans began to bury their dead here and there in the waste land about her tomb, because of the desire to be buried near the body of a saint. There can be no doubt that for hundreds of years the land about her tomb has been used as a burial ground, and though there is no direct proof of dedication as wakf, we can safely conclude that long before 1858 it had. become wakf a least by user.

3. The year 1858 referred to in the above passage is the date of a representative public meeting of Mahommadans called by the authorities for the purpose of considering the question of Mahommadans graveyards for the city. At that meeting a resolution was passed apparently in accordance with the suggestion of the Government to the effect that owners of khankahs or shrines should keep open graveyards in their own khankahs, that four old graveyards, of which Mai Pak Daman was one, should be kept open for the whole Mahommadan community, that three new graveyards should be provided, and that all other graveyards should be closed. The predecessor in title of the person for whom the Court of Wards is now acting took part in giving effect to this resolution.

4. The resolution was sanctioned by Government, and in 1867 a robkar was published giving notice that if any Mahommadan buried a corpse outside the authorised places it would be taken up and buried in one of those places.

5. In the Record of Rights of the last settlement an area of land which comprises the land in this suit is entered as ' in the possession of the Mahommadans,' and is described as Kabristan or Ghair-mumkin Kabristan, that is ' graveyard or unculturable land forming portion of a graveyard.' In the ownership column Makhdum Hassan Buksh, now represented by the Court of Wards, is entered as 'owner.' It would seem that he was properly entered as owner, being trustee and custodian of the shrine of the Saint Mai Pak Daman, and being or claiming to be the recognised head of the Mahommadan community in Multan.

6. In this state of things the appellant, the Court of Wards for the property of Makhdum Hassan Buksh, advertised for public sale a piece of ground lying within the area of the graveyard as described in the settlement papers.

7. Thereupon certain Mahommadan residents in Multan of different classes and various occupations combined together and brought this suit as co-plaintifts, claiming an injunction to restrain the proposed sale, and also asking for a declaration that certain lands described in the settlement records as graveyard, and comprising an area considerably larger than that now in suit, was inalienable as wakf. It appeared in the course of the suit that on part of the land described as ' graveyard ' in the settlement papers there had been encroachments, that part had been acquired for public purposes, and that some lots had been, as it was alleged, sold by the Makhdum for his private purposes. So, in order to avoid all questions which might be raised with regard to land which had been so dealt with, the plaint was amended, and the area for which protection was claimed was limited to a piece of ground measuring 437 kanals and 4 marlas, or something between 40 and 50 bighas'.

8. The District Judge dismissed the suit with costs. On appeal the Chief Court granted the relief asked for by the plaintiffs, but without costs. From this order of the Chief Court the Court of Wards has appealed to His Majesty in Council.

9. The only substantial ground of appeal urged before the Board was that area known as the Pak Daman graveyard was not one continuous burial ground, but merely an area of uncultivated ground in which here and there there were to be found graves or clusters or graves, and the defence set up was that vacant ground unoccupied by graves remained the private property of Makhdum Hassan , and that the Court of Wards was bound or entitled to deal with it for the benefit of his estate without regard to the claim advanced by or on behalf of the Mahommadan community in Multan.

10. The Punjab Land Revenue Act, 1887, Act XVII of 1887, Section 44, enacts that ' an entry made in a Record of Rights in accordance with the law for the time being in force ...shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted there for.'

11. Their Lordships agree with the Chief Court in thinking that the land in suit forms part of a graveyard set apart for the Mussulman community, and that by user, if not by dedication, the land is wakf. The entry in the Record of Rights seems conclusive on the point. It is obvious that if it were held that within the area of the graveyard land unoccupied or apparently unoccupied by graves was private property and at the disposal of the recorded owner, it would lead to endless disputes, and the whole purpose of the Government in setting aside land as an open graveyard for the Mahommadan community in Multan would be frustrated.

12. Their Lordships will therefore humbly advise His Majesty that the appeal should be dismissed.

13. The appellant will pay the costs of the appeal.


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