1. This is an action for the recovery of certain timber or the value thereof, consisting of trees and branches of trees, which were blown down by the wind in a certain graveyard in the town of Koil on the 25th of May 1913. The plaint also claims an injunction restraining the defendants from cutting or removing any trees from the graveyard. The plaintiffs allege that they are the owners of the soil which was dedicated as a takia or graveyard and that they are entitled to any produce of the land which has been severed from it and the usufruct of which is not inconsistent with the purposes for which the land was dedicated. The defendants, who are seven members of a much more numerous Muhammadan mohalla or religious brotherhood to whom the graveyard was dedicated, and by whom it has been used, contend that the plaintiffs' claim has no justification in Muhammadan Law and is inadmissible according to the general principle that property dedicated for religious purposes is sacred for all time and cannot be the subject of private ownership. The case was argued before me as one of principle in which the timber in dispute was a minor consideration, and I, therefore, reserved judgment so that the parties might have the benefit of a considered opinion upon the points raised.
2. It is necessary to examine somewhat narrowly the way in which the case was presented to, and fought in, the Munsif's Court and the findings at which the Munsif arrived.
3. At the outset of the hearing certain admissions were made by the defendants' Pleader, the effect of which was that it was not contested that the plaintiffs' predecessor-in-title, one Imam Baksh, was originally the owner of the property. On the other hand it was not, and could not have been, disputed that the land had been used as a graveyard for many years and that a fakir had lived there. It was admitted that the defendants in the suit represented the brotherhood, that the plaintiffs' names were entered in the Revenue papers as owners and that their predecessors' names had been similarly entered, though not strictly in accordance with the ordinary devolution of Muhammadan property. The learned Munsif found as a fact that the plaintiffs had been in proprietary possession of the ground, that it had been dedicated many years ago as a graveyard for the use of this particular brotherhood, that it had been so used by them, that the plaintiffs and their predecessors had been recorded in the Revenue papers as owners, and that the plaintiffs and their predecessors had all along had the usufruct of the land. The latter finding appears to mean that in respect of a small number of fruit-bearing trees (the graveyard itself contained a large number of trees) the plaintiffs or their relations had taken the fruit although the fakir had from time to time received some of the fruit. Over this peaceful and hallowed spot there burst in the month of May 1913 a violent wind storm which uprooted a tree, and severed the timber in question from the land. This unfortunate disturbance of nature was followed by an even more unfortunate upheaval of this religious community and by the present litigation.
4. After the storm the principal plaintiff removed and appropriated to his own use twelve maunds of the timber. While he was attempting to remove in a cart a further twelve maunds, the defendants or some of them took forcible possession of them and subsequently removed the remainder of the timber from the graveyard to a mosque where it now lies. In my opinion the forcible seizure of the twelve maunds cannot be justified under any circumstances. Whatever the respective rights of the plaintiffs and the members of this religious community may be, these defendants had no personal right to it, and as to these twelve maunds the plaintiffs are entitled to a decree. This, however, is an unimportant and subsidiary question which does not determine the rights of the parties. The learned Munsif found in favour of the plaintiff's and decreed the whole of their claim.
5. On an appeal being made to the District Judge this decision was reversed and the plaintiffs' suit was dismissed. The learned District Judge has not specifically overruled any of the findings of fact arrived at in the judgment of the first Court and the facts must, therefore, be taken to be as found by the Munsif.
6. It is true that the District Judge held that the land was not the property of the plaintiffs. But this is not a finding of fact. He bases his decision upon two grounds, namely, the history of the Revenue papers and the fact that the ground was used as a burial ground without the plaintiffs' permission. The plaintiffs had, by one of their witnesses, sought to establish that burial had taken place only with their permission.
7. This must be taken to have been finally found against them. But the District Judge has allowed himself to be diverted by that topic from the main issue and has held that the burial ground is a public one, which is more than even the defendants contended for. Further, he has drawn an inference from the Revenue papers which is not justified. The fact that the members of the plaintiffs' family who are recorded do not follow the strict succession according to the Muhammadan Law does not seem to me, in the case, of land admittedly dedicated to religious purposes generations ago, to be of much significance. It is, moreover, notorious that the recorded names in Revenue papers do not always correspond with the actual title. The view taken by the District Judge on this matter was also strongly pressed upon me in argument by the respondents' Counsel. But having regard to the conduct of the case in the first Court, the original title to the land was not in dispute; and it must be taken to have been established in fact that the plaintiffs are the successors of the original dedicator. The finding, therefore, that it is not their property is really a finding of law and merely raises the question which is the substantial question in this appeal namely, what interest if any have the plaintiffs in the dedicated site.
8. Now in the first place, dedication involves original proprietorship. The proprietor of land may dedicate in one of two ways. He may do it by express grant. In such a case the law requires a donee. If the property is transferred it must vest in some living agent, that is to say, either in a trustee or a body of trustees, who represent the beneficial interest, hold the property for the uses specified and execute the trust. The Civil Courts will in case of need administer or control the administration of the trust provided the trust is valid by the general law. But a man cannot, as it seems to me, divest himself wholly of all interest and title in immoveable property without vesting it in some legal person. He may, however, and this is the second method, dedicate his land without any formal transfer or specific act of dedication. The common example is that of the dedication of a public way. There are countless public roads as to which the date and manner of dedication are left in obscurity. The fact of dedication is proved by long user, while the date and often even the person of the actual dedicator are presumed. Inasmuch, as the subsequent user constitutes the proof of the prior act of dedication to which such user is referable, it is only from the user that the extent of the dedication can be presumed. Limited user is evidence of a limited dedication. Mr. Ameer Ali in his work on Muhammadan Law, Volume I, 3rd Edition, at page 374, states as follows:
9. 'A wakf, says the Raddul Muhtar, may be established without any evidence of the waqif's declaration. This is the doctrine laid down by Abu Yusuf and the Jurists of Balkh such as Abu Jaafar and others follow this view: Khassaf also has adopted it' and later on, 'so also in the Kazikhan a waqf may, according to the Jurists of Balkh, be validly established by evidence of reputation. If the dedication is one within the knowledge of the general public as a matter of notoriety like the waqf of Amr-ibnal-Aas (the Amru of European history) it can be established by the evidence of user for the purposes of the dedication.' In this particular case it must be taken to have been found as a fact that there was an implied dedication of the graveyard with a reservation of the produce of the land in favour of the dedicator as evidenced by the user.
10. It, therefore, follows that the dedicator had no intention of parting with the proprietorship in the soil, that he did not intend to divest himself of the produce of the soil such as the fruit from the trees or fallen timber and that he intended the ground itself to be used by this particular Muhammadan mohalla or brotherhood for the burial of their dead. The presence of a fakir on the spot is not inconsistent with this limited dedication and the fact that he received fruit from time to time is not inconsistent with the finding that the plaintiffs always took the produce. There is no evidence of any endowment for the maintenance of a fakir and such persons are usually supported by the casual donations of the charitable largely inspired and excited by their own efforts.
11. Now apart from any question of the general Muhammadan Law, I can see nothing in such a dedication repugnant to the general law or to justice, equity and good conscience. In substance I can see no difference between an express dedication limited to special uses for secular purposes and one similarly limited for religious purposes. What may be limited by express grant may be equally limited under an implied grant.
12. I was, however, pressed very strongly by the respondents' Counsel that such a dedication would be contrary to Muhammadan Law and an offence to the Muhammadan community and my attention was not unnaturally drawn to Section 37 of the Bengal, North-Western Provinces and Assam Civil Courts Act of 1887. That section strictly limits my power and compels me to apply the Muhammadan Law to this case so far as it is applicable. All the parties in this dispute are Muhammadans and, therefore, the mischief aimed at by the Act does not arise. It is not a case of applying Hindu usage or English usage to Muhammadans.
13. Now property dedicated to religious purposes or to the service of the Almighty is called 'waqf' which really means 'tied,' there being frequently a person called waqif (?) who is the person to whom the property is tied and who is a sort of trustee of it. It is quite clear from the teachings of the highest authorities from early ages that a partial dedication to God was regarded as an abomination (see quotation from Abu Yusuf in Hedaya, page 233, given in Wilson's Digest of the Anglo-Muhammadan Law, page 363). That is to say, to adopt one of the illustrations given, there could not be a good dedication of land to be consecrated to the worship of God and to be used in alternate years of tillage. It would be an abomination. That is the Muhammadan view and it is in consonance with the principles of most other religions. There is no difficulty in applying that view to land dedicated for a mosque. It is difficult to conceive how such land can be used as a mosque without the proprietor being divested of all actual use and enjoyment in it. It is clear, however, that under the Muhammadan Law there may be limited dedications. I need not enumerate examples. It was admitted at the Bar that it might be so.
14. The contention of the respondents is that in two special instances, namely, of a mosque and of a graveyard, there can be no limited dedication. To my mind this means the same thing in the case of a graveyard as in the case of a mosque. A graveyard once dedicated and adopted cannot be used for any secular purpose or any purposes inconsistent with the purpose for which it is dedicated. But here again, except in the case of grass and other products of nature which perennially come into being if the roots are there in a graveyard, it is impossible to conceive any use which the dedicator could reserve to himself. To my mind the question in each case is one of degree and one of fact, and there is nothing in the Muhammadan Law to prevent the reservation of natural products, the appropriation of which to other uses is not inconsistent with the use of the soil as a graveyard.
15. The precise point is not anywhere decided. Reliance was placed, however, upon an illustration to paragraph 479 on page 392 of Mr. Justice Tyabji's book on 'Muhammadan Law,' where it is stated that a wakf which purports to have been made of land on which there are trees, while excepting the trees, is invalid according to Hanafi Law, as being uncertain. This only means that such an attempted wakf being uncertain and, therefore, imperfect, cannot be enforced. I do not think it means that the Civil Courts in administering Muhammadan Law are bound to hold as a matter of law that a man has dedicated something more than the evidence shows that he intended to dedicate. The validity of a wakf is no doubt an important consideration when the Court is asked to sanction or administer a trust arising out of it or where a claim of dedication is set up and disputed. But in this case the dedication and user are established facts. The parties are all Muhammadans and no one has hitherto questioned the secular appropriation of the fruits. In any view of the case the defendants are in a considerable difficulty. They undoubtedly took the law into their own hands and if the main contention made on their behalf were sound, it is possible they might have justified their act by showing their representative capacity. But when the case came into Court they apparently made no effort to establish their representative capacity or to show what authority they had. Assuming in their favour that they acted on behalf of the brother hood the fact still remains that they themselves removed the timber from the graveyard to a mosque. What possible right they had to do this upon their own showing I am unable to see. The argument presented on their behalf was that the plaintiffs' case involved an attempt to share the user of the land with the Almighty. But even if it were contrary to law to appropriate or reserve for secular purposes the produce of dedicated land, under what law do the defendants claim to appropriate it to some other purpose which, although religious and connected with the brotherhood in whose favour the dedication was made, is admittedly quite other than the object of the dedication? Where is the line to be drawn and who is to decide the ultimate use and destination of the timber? If they want the timber for any of their mosques they must get some one to dedicate it or provide it for them. They appear to justify its removal to one of their own mosques by a sort of appeal to the doctrine of cy pres; but as I have pointed out there is no trust or endowment proved and the onus is on the defendants. The defendant No. 1 has been and may still be a 'chowdhri' or headman. I do not see how this fact affects the case, except that he possibly may have been a party to the removal of the fruit which was proved to have gone to the plaintiffs' relatives. I mention the fact merely because the defendants sought to establish that the principal plaintiff had himself been a 'chowdhri'. This was a part of their case that he had no proprietary interest. I do not think it would matter if he had been but the fact was negatived by the learned Munsif.
16. I may add that the point in this case did not arise for decision in the case of Salig Ram v. Amjad Khan 3 A.L.J. 546 : A.W.N. (1906) 159. The case of Ismail Ariff v. Mahomed Ghous 20 C. 834 (P.C.) : 20 I.A. 99 decided by the Privy Council would tend to show that as to the portion of timber seized from the plaintiffs by the defendants, the defendants had no defence unless they showed representative capacity; but for the purpose of this decision I have assumed that in their favour, it having been stated that in the proceedings below they were setting up the claim on behalf of the whole body. The view I have taken appears to be in consonance with the decision of two Calcutta Judges in the case of Jaggamoni Dasi v. Nilmoni Ghosal 9 C. 75 : 11 C.L.R. 502 : 7 Ind. Jur. 252. I, therefore, reverse the decision of the District Court and restore the decree of the first Court with costs here and below.