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Khuda Baksh Vs. Jai Shankar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All386
AppellantKhuda Baksh
RespondentJai Shankar and ors.
Excerpt:
- - this plea is obviously bad......to the defendant's father, and that in any case the zamindars had acquiesced in the making of the grave and the burial, their present suit being dictated by some disagreement which had subsequently arisen. both the courts have found that the land was vacant land and not subject to any title of the defendant. they have also found that there was no acquiescence on the part of the zamindars even if their servants stood by and allowed the grave to be made.2. various pleas are taken in the memorandum of appeal. it is urged that demolition of a tomb two or three months after the burial of a person in it, should in no way be allowed. this plea is obviously bad. if the zamindars, who are paramount owners of a village, cannot interfere to get rid of a grave made without their knowledge as soon.....
Judgment:

Ashworth, J.

1. This second appeal arises out of a suit brought by the plaintiff-respondents as zamindars of a village for the removal of a dead body from certain land against the defendant-appellant. It appears that the father of the appellant had a house in the village and used to sit on a bit of vacant land in front of it. He expressed a desire to his son that he should be buried there, and the son did bury him there during the absence from the village of the zamindars. This suit was resisted on the ground that the place where the grave was made was within the area of the site granted in the abadi to the defendant's father, and that in any case the zamindars had acquiesced in the making of the grave and the burial, their present suit being dictated by some disagreement which had subsequently arisen. Both the Courts have found that the land was vacant land and not subject to any title of the defendant. They have also found that there was no acquiescence on the part of the Zamindars even if their servants stood by and allowed the grave to be made.

2. Various pleas are taken in the memorandum of appeal. It is urged that demolition of a tomb two or three months after the burial of a person in it, should in no way be allowed. This plea is obviously bad. If the zamindars, who are paramount owners of a village, cannot interfere to get rid of a grave made without their knowledge as soon as they come to know of it, village sites might be converted into grave-yards with great injury to the residents.

3. A second plea is that the fact of two servants, of the zamindars not having interfered and indeed, it is said, having supplied bricks amounted to acquiescence by the zamindars. It is sufficient to say that the defendant could not have believed these servants to be acting within the scope of their duties in standing by and not objecting. An agent's acquiescence cannot be pleaded when the other party knows that he has no authority to acquiesce. In any case it is clear that the making of a grave would be such an unusual incident that it would not fall within the apparent scope of a servant's duties to express acquiescence or the reverse.

4. Another point taken is that the appellant's family being Faqirs it would be quite proper for them to use their courtyard or land adjoining their house for the burial of the members of their family. This plea apparently means that if a house is given to a Faqir to live in, the grant must be presumed to extend to granting the land for use for burial. This is untenable on the face of it, and in this case it was not even proved that the land was granted to the defendant for any purpose.

5. Another plea taken is that certain questions were wrongly disallowed. The questions were designed to prove a wrong motive on the part of the plaintiffs in bringing the suit. The motive which induces a man to insist on his rights is immaterial. For the above reasons there is no force in this appeal and is dismissed.


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