1. The suit out of which this appeal has arisen was brought by one Raghunandan Khattri to recover a sum of Rs. 100 from the defendants as damages on account of the price of wood of a pipul tree which, it was alleged, defendants had wrongly cut and appropriated from a Plot No. 493, said to be situated in the plaintiff's zamindari. There ware three sets of defendants in the case. In the plaint it was said that the first and third Set of defendants had colluded and cut the pipul tree without any right and had sold the: timber to the second set of defendants.
2. The main defence to the suit was that Plot No. 493 on which this pipul tree was situated was wakf property, being a piece of land dedicated as a graveyard and which was used by the bhatiyara residents of the town of Atrauli for burying their dead.
3. The Court of first instance dismissed the plaintiff's suit. The Munsif was of opinion that there was evidence that the property had been dedicated for the purposes of a cemetery and that the plaintiff had lost all right to his land and was, therefore, not in a position to assert that he had any title to the pipul tree. In appeal this judgment has been reversed and the plaintiff's claim has been decreed for a portion of the sum claimed. The defendants have now come here in second appeal, and it is argued that the decision of the Court below is wrong because a certain document of agreement of the year 1867 has been wrongly construed by the learned Additional Judge of Aligarh.
4. When arguments were opened here a preliminary objection was raised on behalf of the plaintiff-respondent to the effect that no second appeal lay by reason of the provisions of Section 102 of the Code of Civil Procedure. The plea was that the suit as framed was a suit of a Small Cause Court nature. I am of opinion that this preliminary objection was not well taken for it seems to me that on the case, disclosed in the plaint the plaintiff was asserting that these defendants had done acts which would amount to an offence punishable under Ch. XVII of the Indian Penal Code.
5. In this connexion Article 35(ii) of Sch II to the Provincial Small Cause Court Act has to be referred to. There was a good deal of argument as to the applicability of this Article, but I am satisfied that the Article does apply and that, therefore, it is not possible to maintain that the suit was a suit of a Small Cause Court nature. It seems to me that having regard to what is set out in the Article just referred to, the suit was one which could not have been tried by a Small Cause Court. I may mention here that the judgment of a Bench of this Court in Raghubar Dayal v. Mulwa : AIR1927All288 was cited on behalf of the respondents. I find there the principle laid down in the following terms-:
We have already decided to-day, agreeing with Mr. Justice Daniels' and dismissing an appeal from him, that where the plaint discloses no allegation of a crime, this Article, i, e., 85 (ii) did not apply.
6. Having regard to the allegations in the plaint here I am satisfied that they amounted to an assertion that the defendants had committed acts which, if proved against them in a criminal Court, would have rendered them liable to conviction on a charge of mischief.
7. Passing on to the merits of the case I have, after some consideration, come to the conclusion that the judgment of the first Court is to be preferred and that the judgment of the lower appellate Court should be set aside.
8. It is not to be denied that this plot in suit has been used as a graveyard for a very long time. In the khasra prepared In the year 1871 A.D. this field is described as No. 447. It is stated there that the name of the field is 'kabristan wali,' that is to say, the field used as a burying ground. It is described as being situated in the Patti of Kishan Lal who was the owner, and the occupiers and khashtkars are described as 'being all the bhatiyaras residing in town of Atrauli who are muafidars.' In the remarks column it is said that this plot contains a pakka well, two trees and a make an idgah, that is to say, a place used for purposes of prayer.
9. In the intikhab jamabandi of the same year we find the plot described in similar terms. It is there repeated that all the bhatiyaras in the town of Atrauli are muafidars holding from the zamindars; and in the remarks column it is stated that this plot waste kabristan muaf hai. The plaintiff, however, laid great stress upon a document executed in the year 1867. It appears that this plot is situated in a patti known as Patti Sher Singh, Kasba Atrauli. In some way or other, which is not clear, this patti came to be auctioned after the mutiny and was purchased by the predecessor-in-title of the present plaintiff who is a khattri by caste. In the year 1867, a document was executed as between the plaintiff's predecessor and a number of the bhatiyaras in the town of Atrauli. This document began by stating that in the frown of Atrauli in Patti Sher Singh there was situated a poor man's cemetery (gor gariban) close to the Shah Wilayet. The Shah Wilayet obviously means the tomb of some saint. The document went on to recite that before this Patti Sher Singh had come to be purchased by auction, the former zamindars, and after them the succeeding zamindars, had appointed, or set apart, this land for the purpose of a poor mail's cemetery muqurrar kar rakhi hai),
10. The document went on to state that the ancestors of the bhatiyaras also had their cemetery in the land in question. The document then went on to provide for an agreement between the zamindars and the bhatiyaras. The latter were anxious to plant trees for the purpose of giving shade over the graves and it was agreed that they should be allowed to plant trees but they should not be allowed to sell them. Provision was made for cases in which the trees fell down in which event, the timber was to be shared between the zemindar and the bhatiyaras. The Court of first instance took this document to be evidence that this land had for a very long time been dedicated as graveyard, and it was held, therefore, that having been so dedicated the plaintiff had no right to claim any proprietary interest in it. The view taken by the lower appellant Court was that the document was not evidence of a complete dedication. The learned Judge seems to have been of opinion that the persons who handed over this plot for the purposes of graveyard reserved some rights in themselves and he treated the document, therefore, as showing only that the bhatiyaras in the town of Atrauli had a right to bury their dead in the land in question by permission of the zemindars but had no higher rights.
11. I do not think that this is a reasonable construction of the evidence in the case. The document of 1867 does not show that the burials in this plot were made by permission of the zamindars. What was stated was that the old zemindars that is to say the zemindars before the time of the auction-sale and those who had acquired title afterwards, had recognised this plot as a place set apart for a poor man's burying ground. The words, as I have said, are muqarrar kar rakhi hai.' These words to my mind indicate complete dedication of the property not only for the benefit of the bhatiyaras but also for the benefit of the poor of Atrauli. It is distinctly stated in the deed that any poor man who is to be buried in Atrauli is buried in this burying ground. Again I do not agree with the learned Judge of the Court below who seems to think that the words zemindaran sabiq must necessarily mean the immediate predecessors-in-title of the persons who purchased Patti Sher Singh after the Mutiny. The words are perfectly general and may refer to the zemindars of seven generations back.
12. I think it reasonable to presume that where land is given for a cemetery there would be no reservation by the grantor. There is just another point which may be mentioned, and that is this. It is proved from a reference to the Gazetteer of the Aligarh District that Atrauli has had a large Muhammadan population for a very long time. The history of the town goes back for a great many years, and it is stated, in the Gazette, that this town contains a number of what are called Rajput Muhammadan inhabitants. It is well known that in Aligarh there are a great many Rajput converts to Muhammadanism, It seems likely, therefore, from the history of the town that there must have been a cemetery for the Muhammadan poor for a very long time. Moreover, it need not necessarily be assumed that because this property is situate in Patti Sher Singh that Sher Singh was necessarily a Hindu. He may for all we know, have been one of these Rajput Mahammadans. I have come to the conclusion, therefore, that the rights of this case are with the defendants and that the Court of first instance was right in holding that there had been a complete dedication of this plot for the purposes of a cemetery.
13. It only remains to mention that there was a previous suit between this plaintiff and some of these defendants, in which the plaintiff recovered damages for the cutting and removal of one of the branches of the pipul tree now in dispute. An attempt was made in the Court below to hold this previous judgment as res judicata, but as the decree in the earlier suit was only given against three of the defendants in the present suit, obviously the question of the title is not res judicata under the earlier judgment. I, therefore, allow this appeal set aside the decree of the lower appellate Court and restore the decree of the Court of first instance. The defendants will be entitled to their costs both in the lower appellate Court and in this Court, in this Court the costs will include fees on the higher scale.