R. Dayal, Actg. C.J.
1. This is a special appeal against the order of a learned single Judge and arises out of a suit for partition of a grove.
2. The plaintiff claimed one-fourth share in this grove. He impleaded 31 defendants. Out of these defendants three contested the suit on the grounds that the plaintiff's share was less than one-fourth and that the grove in suit was waqf property, it being dedicated for the purpose of a family graveyard. Two other defendants just wanted their share also to be partitioned. The remaining defendants did not put in appearance.
3. The trial court decreed the suit for partition and also decreed the claim for partition bydefendant No. 1. 23 of the other defendants appealed against this order. On appeal, the learned Civil Judge dismissed the appeal and confirmed the judgment and decree of the trial court. The same 23 defendants filed a second appeal in this Court. It was also dismissed by the learned single judge and it is against that order that the present appeal is filed.
4. The learned counsel for the appellants tried to urge the point about the share of the plaintiff in the land in suit. He was not allowed to raise this point as the learned single Judge had not allowed it to be raised in view of the consideration that the point had not been urged in the first appellate court. The point was taken in the memorandum of appeal, but there was not a word about it in the judgment indicating that the point was not raised before the court.
5. The only other point which has been contended before us for the appellants is that the land in suit must be held to be a graveyard in view of the fact that a portion of the main plot including the land in suit contained a large number of graves and there were some graves in the land in suit as well. According to the commissioner's report, the number of graves in the land in suit is even, four pucca graves practically in the centre and three others in different places of the land in suit whose area is about five bighas.
Considering the area of the land in suit, the number of graves is very inadequate to hold that the entire area is a graveyard. It is also urged that because there is no demarcation between that portion of the plot which does contain a large number of graves and the land in suit, it must be held that the entire plot is a graveyard. We do not see any justification for this.
6. It is not the case of the parties that this plot including the land in suit had been dedicated for the purpose of a public graveyard. The defence raised by the three contesting defendants was that the grove in suit had continued to be a graveyard of the families of the parties from the time of their ancestors and that the Idgah and the pucca well in it were also constructed for the same purpose.
It may be mentioned that the Idgah and the pucca well are not situate on the land in suit but are situate on the other portion of the plot which is not in suit and on which there exist a large number of graves. That portion of the plot is nine biswas in area. When the graveyard is not a public graveyard and consists of the graves of the members of the family alone, it is not to be presumed that the entire plot had been dedicated for the purpose of a graveyard. The persons in possession of the plot just used a portion of it for the purpose of burying the dead in the family.
There was no allegation in the written statement that any permission of the proprietor had been taken to use the land as a graveyard. There could not have therefore been any dedication of the entire plot including the land in suit for the purposes of a graveyard.
7. It has also been contended that the site of the various graves in the land in suit must at least be held to be dedicated land and reliance is placed on the case of Nazira v. Sukhdarshan Lal, 1936 All LJ 651 (A). The case supports the contention. For the purposes of this case we accept what had been held there though with great hesitation. It was observed at page 654 :
'The burial of a dead body in a place necessarily involves the inference that the corpse is not to be dug out in future and the place is to remain consecrated so long at least as the tomb stands thereon. The presumption, therefore, is that thatpart of the site in which the dead body is buried is dedicated with the consent of the owners of the land and becomes sacred and ceases to be the private property of the former owners.'
The observation is based on : several presumtions. It is not unknown that graves are dug on land even without the permission of the proprietor. It may be that subsequently the proprietor does not take steps to have the dead bodies exhumed as in law he could have done. The mere fact that a certain piece of land is deemed to be sacred need not lead to the conclusion that the land had been dedicated.
It is pertinent to enquire for what purpose the land is dedicated. Nor further fresh use is to be made of that land. The consecration, according to this observation, continues so long at least as the tomb stands on that land. It is not laid down that the consecration is for ever. However, as we are accepting the view expressed in the said case for the purposes of the present case, we need not pursue this matter further.
8. The land in suit has been actually partitioned according to the preliminary decree and a final decree has also been prepared. The parties filed no objection to the proposed qurus. In the circumstances, it appears to us that no particular purpose would be served by reopening the quras and directing that fresh quras be prepared with respect to the land in suit minus the actual sites of the graves which exit on it.
It would be sufficient to provide in the decreethat the sites of the existing graves will be deemedconsecrated as long as the graves are there on them. No further fresh use would be made of that land.Parties have already agreed that they would notinterfere with the graves which exist in the sharesallotted to them.
9. We, therefore, dismiss the appeal with costs throughout and confirm the decree of the court below with this modification that the sites of the existing graves to be included in the quras allotted to the parties will be considered consecrated as long as the graves stand thereon and will not be used in any other way and that the parties, as undertaken by them, would not interfere with the graves which happen to fall in the quras allotted to them.