Mushtaq Ahmad, J.
1. This is an appeal against a judgment of Mr. Shri Nath, the learned Civil Judge of Bijnor, which I have found to be a model of a laboured, evasive and rambling document To give a picture of the judgment in a single sentence, it is based on a distortion of the most vital document on the record, on documents that had no bearing on the point in issue, on a certain former deposition of one of the defendants-appellants which really was not admissible and on a complete disregard of the entire body of the oral evidence, which, in fact, contained clear admissions of the truth of the case of the party against which the learned Judge decided the case by the witnesses of the opposite party in whose favour he decided it.
2. The appellants before me are the six defendants against whom the respondent brought the suit leading to this appeal for possession over plot 05, measuring 11, and plot 98, measuring 7 biswas, total 18 biswas, in village Sarakthal Madhoo, Pargana Dhampur, District Bijnor. These plots together with plot 97 represent the former plot 205. The area of plot 97 is three biswas which the plaintiff did not include in her Claim, that is to say, she claimed possession only over 18 out of the aggregate 21 biswas of the said former plot 205. The plaintiff admitted that those three biswas were the graveyard of the Mohammedan community, represented in this suit by the defendants-appellants, but she denied that the remaining 18 biswas, which she claimed in the suit, formed part of that graveyard. The defendants-appellants' case was that the entire biswas constituted a Mohammedan graveyard, that the same had been so from time immemorial and that, therefore, the plaintiff respondent was not entitled to a decree in respect of the land in suit. The simple question in the case was, which of these was the correct version, a question of fact so far as it stood.
3. It would be interesting to indicate the plaintiff's case as put in the plaint. I say so, because the version given in that document seems to me of a most amazing nature, which, in its implications, would do violence to the general experience, habits, mode of life and the settled practice followed by a particular community in this country. That averment is contained in para. 2 of the plaint which reads as follows:
Before 1926 there was no graveyard in the village but Mohammedans used to bury their dead in vacant fields, and tenants in disregard of those graves used to plough and cultivate their fields.
4. Remembering that the defendants' community has been living in this village admittedly from time immemorial, the above statement is bound to appear rather amusing, inasmuch as it reveals an intolerable degree of disrespect for the dead, not only by the one but also by the other community, and it is difficult for an inhabitant of this country to reconcile himself to such a startling assertion. The plaintiff further alleged that in 1926 Dhan Singh zamindar had allowed a three biswa area out of the former plot 205 to be used as a graveyard and later he had allowed:. six biswas of plots 203 and 204 also to be used for that purpose. It may be noted that these six biswas are outside the subject-matter of the dispute. It may further be noted that these plots 203 and 204 adjoin plot 205 on its northern boundary.
5. The defendants' case, on the other hand, was that the entire 21 biswa area of the former plot 205 now constituted by plots 96, 97 and formed formed a Mohammedan graveyard and had been used as such from ancient times and that th]e plaintiff had, therefore, no right to claim any portion of the same.
6. The parties adduced evidence, both oral and documentary, in the case. The trial Court, on a discussion of all that evidence and relying in corroboration of the defendants' case on a number of clear and positive admissions of its truth by the plaintiff's own witnesses, found the issue in the defendants' favour and held that the entire 21 biswas of the former plot 205, including the 18 biswas in suit, constituted a graveyard and on this finding it dismissed the suit. The lower appellate Court, as I have already indicated and as I shall show in detail hereafter, I regret to say, not only took a distorted view of the documents proving the defendants' case, although, in my opinion, those documents pointed only to a contrary conclusion, but also, relying upon the former deposition of one of the defendants and leaving the entire body of the oral evidence severely untouched, reversed the judgment of the trial Court and decreed the suit.
7. As, on a careful study of the entire evidence on the record, I have found the judgment of the lower appellate Court as a positively impossible judgment for the reasons I shall set forth shortly, I have decided to go into the entire question myself, as allowed by the provisions of Section 103, Civil P.C., consider it desirable to examine the documentary evidence first, and then, in the light of this examination, I would proceed to judge its criticism or rather its treatment by Mr. Srinath, the learned Civil Judge.
8. The earliest document on the record is a khasra (Ex. 7) of the 11th settlement which was made in 1894, and which shows that the entire plot 205 was entered as a khudkasht of one Bhup Singh Jat. The khasra itself does not mention the year although it purports to have been drawn up in the 11th settlement which was made in 1894, as shown by the Gazetteer of district Bijnor. It may be noted that the trial Court wrongly mentioned the year as 1868, the actual year being 1894. All that can be said on the basis of this document is that until the year 1894, no graveyard appears to have been entered in the village records. The absence of an entry of particular nature may or may not accord with actual facts, but, if a certain position is found to be established from the surrounding circumstances of the case, a mere non-mention of it in the village records would not carry much effect. If the burying of the dead was an absolute necessity and the community concerned had been living in the village since ancient times, one would rather presume that it must have had some place within the village area set apart as a graveyard than to conclude from the mere absence of an entry in the records that there was no land used as such in the village at all. The learned Judge himself remarked that:
No doubt Muslims need a graveyard or some plots for burying their dead.... Any way it may be that upto the year 1894 the Muslims of the village were burying their dead at some place in the village, but the place was not such as to be designated as a graveyard, and consequently no entry was made upto the year 1894. Any way, after 1894 some place was getting prominence as a graveyard.
If 'some place' had been used as a graveyard even before 1894, though it was not 'designated' as such, the place was a graveyard and nothing but a graveyard, no matter if the entry in the record did not show it. From the year 1926 up to the year 1346 fasli (1939) a number of documents appear to have come into existence which throw a considerable light on the issue in hand. In that year, 1926, defendant 2 and certain other Mohammedans applied (Ex. 18) for the correction of entries and demarcation of their graveyard, claiming that plots 203, 204,205, 206 and 207 constituted their burial ground. This-application was obviously necessitated by the fact that the khasras had not recorded any graveyard in the village up to that year. The order (Ex. 10) on this application mentions that on enquiry, while no graves were found to have existed on plots 203 and 204 the remaining plots, that is, plots 205, 206 and 207 were a graveyard, although there was no entry to that effect. The order, no doubt, further said that an entry in accordance with the result of the enquiry should be made, if the zamindar gave his consent. The document, ex. 14, which is the report of the enquiring officer, mentions that such consent was given only in respect of three biswas which alone the plaintiff now admits to have been the defendants' graveyard. We know that as a final result-of those proceedings, only these three biswas, and no more, were entered as a graveyard. It would be significant to quote what the learned Civil Judge himself observed in regard to those-proceedings:
All these papers showed that in the year 1926 graves were not found in plots 203 and 204, but were found in plots 205, 206 and 207 by the Kanungo.
9. It is admitted, as already mentioned, that plots 203 and 204 also have been, at least since 1926, a part of the defendants' graveyard. Ac-cording to the plaintiff, they became a graveyard under a grant by Dhan Singh, and according to the defendants, they or their predecessors had received those plots from Dhan Singh in lieu of their relinquishing their right of burial in a grove belonging to the zamindar. It is not necessary to go into this question in the present case.
10. In 1930, there were two compromises each in a proceeding under Section 107, Criminal P.C., which the police had taken as against either party. The compromises say nothing about the disputed plot 205, as noted by the learned Civil Judge himself, and it was wholly irrelevant for him to encumber his judgment with a discussion of those compromises.
11. In the khasra of 1337.1348 (Ex. 1) the, entire plot 205 was entered as a graveyard, specifically in respect of the years 1339 to 1345 Fasli, although, as against the year 1337 Pasli, the names of Khem Chand and Imam Bakhsh, defendant 2, were entered as tenants and as against 1346 to 1348 Fasli, 11 out of the entire 21 biswaa were entered as banjar. I shall discuss the effect of these entries later. Separate copies of the entries of the khasras' of 1339 Fasli (Ex. A-2) and 1343 Pasli (Ex. A-1) also show the entire plot as a graveyard.
12. The most material of the above documents are the order of the Revenue Officer dated 14th July 1926 (Ex. 10) and the 12 years' khasra of 1337-1348 (Ex. 1). The compromises Exs. 11 and 12 of the year 1930, as I have already said, do not throw any light on the question in issue, as they made no reference to the disputed plot 305 at all.
13. As regards the first of these two documents, it would appear that the result of the enquiry made by the Revenue Officer was distinctly in favour of the defendants, as it was found that the entire plot 205, besides the plots 206 and 207, was a graveyard. It is true that only 3 biswas out of the entire area of this plot was ordered to be entered as a graveyard, but that was because the zamindar had not agreed to any larger area being so entered. Of course, the mere fact that the zamindar had given only a modified consent would not affect the value of the enquiry itself. As regards the second document, a number of questions arise. In the first place, the entry in the year 1337 Fasli in that document was of the names of Khem Chand and Imam Bakhsh, defendant 2, as tenants in respect of the entire plot 205. Obviously, this entry, at least in so far as it referred to three biswas, was wrong, as the zamindar himself, four years earlier in 1926, had consented at least to that much area being entered as a greveyard, apart from the question that the entire plot had been found to be a graveyard as a result of the enquiry made by the Revenue Officer in that year. In the second place, the entry of 'banjar' as against 11 biswas out of plot 205 in 1346 to 1348 Fasli was of no consequence for the obvious reason 'that the entire plot 205 having been recorded in the khasra from 1339 up to 1345 Fasli as a grave. yard there would be a presumption that this entire plot was a graveyard, and the entry of the word 'banjar' as against 11 biswas out of its total area only showed that till the year 1348 Fasli dead bodies had not been buried in those 11 biswas. Their Lordships of the Judicial Committee in Court of Wards v. Ilahi Bakhsh 11 A.L.J. 265 at p. 269 observed as follows:
The Punjab Land Revenue Act 1887, Act XVII of 1887, Section 44, enacts that 'an entry made in the Record of Rights in accordance with the law, for the time being in force, shall be presumed to be true, unless the contrary is proved or a new entry is lawfully substituted therefor'.
Their Lordships agree with the Chief Court in thinking that the land in suit forms part of a graveyard, set apart for the Musalman community, and that by user, if not by dedication, the land is waqf. 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 dispute, and the whole purpose of the Government in setting aside land as an open graveyard for the Musalman community in Multan would be frustrated.
To the same effect are the provisions of Section 44, U.P. Land Revenue Act, and they must consequently be given the same meaning.
14. The entry of the word 'banjar,' therefore, was of no avail, and it only showed that 11 biswas out of the total area of the plot had not by that time been covered with graves, although the site was a part of a larger graveyard area.
15. Learned Counsel for the plaintiff-respondent contended that it was not open to this Court in second appeal to assign a different interpretation to a document which was not a document of title, but only one of a historical record. In cases in which the only document of title is the khasra, recording the incidents of a tenure, it is the khasra which would serve the purpose of a deed of title and the interpretation of which would necessarily be a question of law. On this point, I may refer to the dictum of the Judicial Committee in Ballabhdas v. Noor Mohammad , to the following effect:
Where the khasra itself is the instrument which confers or embodies the rights and there is no other document which creates title, the khasra and the map are not merely 'historical materials' but are instruments of title or otherwise the direct foundation of rights.
It would be interesting to note what the learned Civil Judge said in his judgment about this 12 years' khasra:
In the year 1937 in the 12 years' Khasra Ex. 1 the entire plot No. 205 of one bigha, one biswa area is entered as under cultivation of Khem Chand and Imam Bakhsh.
16. In the first place, the khasra, Ex. 1, relates to 12 years, 1337-1348 Fasli (1930-1942). In the second place, while the learned Judge emphasised the entry as he found in 'l937, by which he must have meant 1337P, he turned away from the entries of the succeeding years in the same document, apart from the fact that the entry of the names of Khem Chand and Imam Bakhsh as tenants over the entire area of the plot even in 1337 Fasli must be taken as admittedly wrong, at least so far as 3 biswas out of the 21 biswas of plot 205 was concerned. This would be because the zamindar had admitted earlier in 1926 that that area at least was a graveyard and should be entered as such. If, however, we go by the result of the enquiry made by the Revenue Officer in that year, the entry of the names of these persons as cultivators of any portion of the total area would be wrong and contrary to the actual -facts. The learned Judge has not considered the effect of the continued entry of a graveyard against the entire plot right from 1339 up to 1345 Fasli. His treatment of this particular document was highly perfunctory and showed a tendency to use only a minor portion of the document and leave the rest of it which supported the decision of the trial Court. This is nothing short of distorting an important piece of documentary evidence which far from supporting the plaintiff, as imagined by the lower appellate Court, almost concluded the case in favour of the defendants.
17. While relying on the entry in the 12 years' khasra for 1337 to 1348 Fasli in regard to the first year as showing the names of Khem Chand and Imam Bakhash and relying on the entry of the word 'banjar' in respect of a portion of the total area of the plot in the years 1346-1348 Fasli and ignoring altogether the entries in the defendants' favour in that document, the learned Civil Judge eventually remarked that : 'This shows how in a slipshod way the officials have made entries in the village papers.' I have already shown that if the form of the entries at all reflected against the efficiency or integrity of the officials concerned, it only encouraged a suspicion about the truth of the plaintiff's case. If, as I have already pointed out, 3 biswas out of the 21 biswas of plot 205 had been admitted as a graveyard in 1926, the entry of the total area as under somebody's cultivation in 1337 Fasli was, on the face of it, wrong. Again, if the total area had been a graveyard, as shown by the successive entries in the years 1339 to 1345 Fasli, the entry of the word 'banjar' in regard to a portion of that area in 1316-48 Fasli was also equally wrong. It is not possible to suggest a similar criticism of the entries, so far as they stand in favour of the plaintiff. Bat paying no attention to them in so far as they established the defendants' case, the learned Judge eventually characterised the entries as a whole as a 'slipshod' proceeding.
18. The only other document on the record, besides the khasras and the orders of the revenue Court, as above mentioned, was a copy of a deposition dated 2nd April 1937 (Ex. 6) of Rahmat Ullah, defendant 3, in the course of an enquiry in the revenue Court. He' there stated that only three biswas of plot 205 formed the graveyard. The trial Court did not rely on this statement, as it found to have been made under the influence of Umrao Singh, the father-in-law of the plaintiff-respondent. That Court did not consider the question whether the statement was at all admissible in evidence. The lower appellate Court without considering the said ground for rejecting Rahmat Ullah's statement and without, like the trial Court, considering the question of its admissibility, strongly relied upon it and, treating it as an admission of the plaintiff's case, held that it completely destroyed the case of the defendants. Learned Counsel for the appellant in his arguments before me attacked Rahmat Ullah's deposition as legally inadmissible. He urged that in the absence of any proof that when he made the statement, Rahmat Ullah occupied a representative capacity, as he no doubt does in the present suit, his statement would not be binding on the remaining defendants or, for the matter of that, on the other members of his community. Now Para. 2 of Section 18, Evidence Act, provides that:
Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made while the party making them held that character.
Rahmat Ullah as a member of his community was entitled in his own right to an interest in' the disputed graveyard, and if be disowned the land as such to the extent of 18 biswas in his statement of 1937, he did it to the prejudice of his own right, and it could not affect the interests of the other members of his community. In support of his contention the learned Counsel further relied on Mt. Bibi Kaniz Ayesha v. Mojibul Hassan Khan A.I.R. (29) 1942 Pat. 230 and Kishan Singh v. Lachman Das A.I.R. (17) 1930 Lah. 238.
19. I entirely agree with this argument and hold that the deposition of Rahmat Ullah, defendant 3, relied upon by the learned Civil Judge was inadmissible in evidence, and the judgment is vitiated as being mostly based thereon. I say that the judgment is mostly based on this deposition as the learned Judge himself eventually, though in my opinion quite wrongly, characterised the entries in the khasras as merely 'slipshod' and, so far as the oral evidence was concerned, he never turned his attention to it in the least, as I would show now.
20. Coming to the oral evidence, I am surprised to find that the learned Civil Judge showed extreme carelessness and a palpable lack of duty in not turning his mind to it at all. There were six witnesses examined, three by the plaintiff and three by the defendant, whose evidence had been discussed by the learn, ed Munaif in great detail, The only re-action of the learned Judge to all that evidence was expressed in the following brief words:
I believe the plaintiff's evidence which is consistent with the documentary evidence and other circumstances. I disbelieve the defendants' evidence.
The learned Munsif had relied on the statements of the defendants' witnesses not only on their face value, but also as corroborated by clear and convincing admissions made by the plaintiff's witnesses. If the learned Judge had dealt with all that evidence and criticised the learned Munsif's reasoning in relying on those admissions either as admissions by witnesses hostile to the plaintiff or as admissions of no practical value, it would not have been open to me in second appeal to differ from him in his estimate of the oral evidence, As it is, he simply said that he 'believed plaintiff's evidence' without in the least indicating that the same evidence which he 'believed' also proved by admission the defendants' case. A fortiori, if he 'believed' the whole of the plaintiff's evidence he also believed the admission part of it, and if so, then, instead of decreeing the suit, he should have only dismissed it, I now indicate these admissions-
(1) Umrao Singh P. W.1: He admitted that plots 203 and 204 formed a graveyard, that they were on the north of plot 205, which had no demarcation lines, that the three biswas land of the admitted graveyard was in the southern portion of this plot 205 and that the whole of this plot was covered with graves.
(2) khem P.W. 2: He admitted that the defendants had been burying their dead in the disputed land for the last 12 or 13 years. This negatived the plaint allegation that graves had been made there for the first time only in 1911.
(3) Bansi P.W. 3: He admitted that graves had been made in the disputed area for the last 6 or 6 years. This again was contrary to the plaint allegation.
21. From the judgment of the lower appellate Court we know nothing about these wit-nesses, nothing about their evidence and surely nothing about their admissions. I put it to the learned Counsel who appeared in support of that judgment, and the only dignified response possible was what he gave. It was one of honest silence. All this furnishes an eloquent commentary on the much too brief and shabby reference not to the features of the evidence on the record but only to what the learned Judge said he thought of it. The learned Counsel no doubt suggested in this situation that I might remand the case for a fresh decision of the appeal by the learned Civil Judge. I refused to accede to the request, and having gone into the record with the assistance of the parties' counsel in Court myself, I decided to record my own finding under the provisions of Section 108, Civil P.C. This section allows this Court even in a second appeal to determine any issue of fact which
has been wrongly determined by such Court by reason of any irregularity, omission, error or defect such as is referred to in Sub-section (1) of Section 100.
Apart from any other 'error or defect' learned Judge's reliance on the deposition of Rahmat Ullah was an 'irregularity', and his failure to apply his mind to any part of the oral evidence containing, as it did, vital admissions of the truth of the defendants' case, was an 'omission' affecting the correctness of his determination of the issue in question. These defects in the judgment of the lower appellate Court raise questions of law, and they flow from his wrong and irregular approach to a question of fact arising between the parties.
22. On a consideration, therefore, of the entire materials on the record, I have come to the definite conclusion that the only finding which. was judicially possible on those materials was as arrived at by the learned Munsif, namely, that the entire plot 205, now constituted of plots 96, 97 and 98 formed a Mahomedan graveyard and that the plaintiff had no right to claim the disputed area of 18 biswas forming part of the same. I hold accordingly.
23. Having given my careful thought to the judgment of the lower appellate Court in the light of these materials, I find myself wholly unable to affirm it. I, therefore, allow this appeal set aside the decree of the lower appellate Court restore the decree of the trial Court and dismiss the suit with costs throughout.
24. Leave to appeal under the Letters Patent is refused.