A.M. Ahmadi, J.
1. There is a plot of land bearing old survey No. 6 and new survey no. 3141 in ward no. 3 of Surat city admeasuring about 2518 sq. yds. The appellant no. 1 had made an application dt. June 1, 1962 under Section 18 of the Bombay Public Trusts Act, 1950, (hereinafter referred to as 'the Act') to the Assistant Charity Commissioner, Surat, for registration of public trust, namely, 'Sarvajanik Jmumasha Kabrasian'. In the said application, appellants nos. 2 and 3 were shown to be the trustees of the said trust and the mode of succession to trusteeship was by appointment from the residents of three localities of Surat, namely, Ambawadi Kalipul Ambawadi Ghadewan's Takra and Ambawadi Saiyed Badarmiya's Moholla. The aforesaid plot of land bearing old s. no. 6 and new s. no. 3141 admeasuring about 2518 sq. yds. had been shown to be the property of the said public trust. It was averred in the application that the said property was being used as a burial ground by the Musalmans residing in the aforesaid three localities since time immemorial. The extract from the property card was produced along with the application wherein the name of the owner was shown to be the Surat Municipal Corporation. Another extract from the Sud-register ex. 3 was produced along with the application wherein it was mentioned that the said land was 'sarvajanik' land used as a 'Kabrastan'. In that document the land was described as 'Sarkari'. Notices were issued amongst others on the Municipal Commissioner, Surat Municipal Corporation as well as the Collector of Surat and the inquiry was registered at no. 54 of 1968 on December 24, 1968.
2. The Collector of Surat by his reply ex. 7 stated that the land originally belonged to the Government and it was shown at the time of the original survey in 1871 in the sud-register as 'Sarkari' land and on May 2, 1874 an entry was made to the effect that it was reserved for 'Sarvajanik purposes' and was the land of 'Kabrastan'. He stated that thereafter in the revision survey undertaken in 1925 the said land was given a new survey no. 3141 and was shown as the Government unoccupied land. Subsequently on April 3, 1943 this land was given to the Surat Borough Municipality under a Government Resolution on concessional rates for construction of Harijan Quarters. He therefore, submitted that this land originally belonged to the Government and stands in the name of the Municipal Corporation since April 1943. He, therefore, resisted the application for registering this land as the property of a public trust. A similar written statement was filed on behalf of the Municipal Corpo ration wherein it was contended that the application was not bona fide and no public trust existed as alleged and the said land was not the property of the public trust but it belonged to the Municipal Corporation of Surat as having been acquired from the Government in the year 1943 for the construction of Harijan quarters. It, was, therefore, contended on behalf of the Municipal Corporation that the inquiry in regard to this property instituted on the application of the appellant no. 1 should be dropped.
3. The broad facts which emerge from the evidence and which have not been disputed before me are that the said open land is being used as the 'Kabrastan' by the residents of the aforesaid three localities of Surat since before 1871. It is clear from the evidence that there are a' number of graves in the said land, some of them parent it structure and there is also one tomb bearing the inscription of Hijri year 1272: The property was shown in the Revenue Settlement Register (Sud Register) of 1871 as 'Sarvajanik Kabrastan land'. The character of the property is described as 'Sarkari'. This entry seems to have been nude on May 2, 1874 as is clear from a perusal of ex 3. The Assistant Charity Commissioner Surat, had visited the site and had found that the statements of fact made by the three witnesses examined on behalf of the appellants, were correct. From their evidence it becomes clear that the disputed property was being used as a 'Kabrastan' by the Musalmans of the aforesaid three localities for the last over 100 years. The existence of the tomb bearing the inscription Hijri year 1272 (equivalent to 1853 A.D. according to the judgment of the learned Assistant Judge) indicates that even in that year the land was being used as a grave yard. There are several graves in this lard and it is difficult to say how many of them date back to 1853 A.D. It is sufficient to say that over a number of years at least from 1874 this land is being used by the Musalmans of the aforesaid three localities as grave yard. It is true that in the revision survey of 1925 this land was described as Government unoccupied land but this statement does not seem to be factually correct because it is clear from the evidence that throughout the land was being used as a grave yard. The evidence shows that even after 1943 the land is being used as a grave yard by the Musalman residents of the aforesaid three localities. In support the appellants have produced the receipts of fees collected by the grave digger Mohmad Ibrahim. It was not suggested by Mr. Sethna. The learned Counsel for the Municipal Corporation, that after the Government resolution of 1943, the Municipal Corporation had assumed possession of the grave yard and had closed the cemetery. Therefore, even after the Resolution of 1943 it becomes clear from the evidence that the land was used as grave yard and the Municipal Corporation had not obtained actual possession (hereof from those in management of the grave yard. It is, therefore, abundantly clear from the aforesaid evidence that this plot of land is being used as grave yard since before 1871 i.e. for the last over 100 years.
4. The Assistant Charity Commissioner, Surat, came to the conclusion that the said open piece of land originally belonged to the Government and it was set apart by the Government for being used as a grave yard in the year 1874 and that the said setting apart of government land for public purposes cannot amount to dedication by the Government and, therefore, a Wakf did not come into existence. For the same reason, he came to the conclusion that Wakf by long user cannot be inferred. He held that the property was transferred by the Government in the year 1943 to Surat Borough Municipality and hence the Municipal Corporation of Surat was the owner of that property and it could not be registered as the property of a public trust. Taking this view, he ordered that the inquiry papers be filed. The first appellant preferred an appeal No. 12/69 to the Charity Commissioner, Gujarat State, Ahmedabad. The appeal was heard by the Joint Charity Commissioner, who by his order dt. August 19, 1969 dismissed the appeal with costs confirming the view taken by the Assistant Charity Commissioner, Surat. The appellants moved the District Court, Surat under Section 72 of the Act. The application was transferred to the learned Assistant Judge for disposal. Two contentions were raised before the learned Assistant Judge, namely, (1) that the said piece of land was used as a grave yard by the Muslim residents of the aforesaid three localities of Surat since time immemorial and hence a Wakf by user should be inferred, and (2) that even if it is presumed that the said piece of land was government property in the year 1871 the fact that prior to 1871 and thereafter the land had been used as a burial ground indicates that the government had lost its ownership over the land and the land vested in the 'Kabrastan'. These contentions were rejected by the learned Assistant Judge, Surat. His line of reasoning is found in para 11 of the judgment. Some observations are as under:
The very fact that the government assigned the disputed land for Kabrastan purpose will itself lead to the irresistible inference that the government was its owner and kept its ownership Even during revision survey in the year 1924-25 this assignment disappeared and the disputed land was shown in the City Survey Record merely as Government unoccupied land. So in view of these established facts, it cannot be held that mere user of this Government land as Kabrastan since the year 1874 makes this land a Wakf by long user and I n fact, there is no evidence on record to establish that even prior to 1874, this land was a Wakf by long user
Taking the above view, the learned Assistant Judge dismissed the application filed under Section 72 of the Act. The appellants being dissatisfied with the said decision, have come in appeal to this Court.
5. Section 2(13) of the Act defines a 'public trust' as an express or Constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a Wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable parapets or for bath and registered under the Societies Registration Act, 1893. It is char from this definition that a Wakf is a public trust within the meaning of this Act. The expression 'Wakf has been defined in Section 2(19) to mean a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Islamic Law as pious, religious or charitable and includes a wakf by user. The first part of this definition would require proof of permanent dedication by a person professing Islam for a pious, religious or charitable purpose. The second part of this definition speaks about the wakf by user. It necessarily follows that if it is proved that the property is being used for a pious, religious or charitable purpose over a number of years, wakf by user can rightly be inferred. In other words, in order to prove that a wakf by user has come into existence it must be shown by instances adequate in character, number and extent that the property is used for a purpose recognised by Islamic law as pious, religious or charitable. It is true that before the Act was brought on the statute book existence of Wakf by immemorial user was recognised as giving rise to a presumption of dedication. After the introduction of the definition of Wakf in Section 2(19) of the Act, Wakf by user is recognised and it would be sufficient to prove that the property is being used as a burial ground for a number of years to constitute 'Wakf. In this connection, it would be apposite to refer to the case of Alimiya Mahmadmiya and ors. v. Sayed Mohomed Baquir El-Edroos Valde Sayed Jaffer El-Edroos and am. (1968) 9 G.L.R 1002. In that case, Shelat, J. as he then was, sitting singly observed that after the introduction of the definition of 'wakf in Section 2(19) of the Act, proceedings can be initiated under the Act on such material which would show that the property is being used for a number of years as a Wakf. It was stated that it is not necessary for a person alleging that a Wakf by user has come into existence of getting material in proof of permanent dedication of any such property and it may well be enough to show public user of that property for sufficiently long period for establishing a Wakf.
6. It seems to me fairly well settled that under the Mohmedan Law if i parcel of land is described in the revenue records as Kabrastan land it is prima facie evidence of a public grave yard and proof of long user by members of public professing Islam for burning their dead would constitute conclusive evidence of a. Wakf by user. In other words, if a site is used as a grave yard for over a number of years and such use is amply supported by documentary evidence, such as entries from revenue records, a Wakf by user can be inferred. Once it is established by cogent and reliable evidence that the land is used as a public grave yard by the Musalmans residing in the vicinity thereof, it becomes Kabrastan land and vests in the public constituting a Wakf. In Chhutkao v. Gambhir Mai A.I.R. 1931 Oudh 45, it was observed that where a plot of land is described as a 'takia' and has been used for many years as a place for burial by Mahomedans whether they are members of one family or not, a presumption arises that there is a wakf by user. The burial of the dead in a plot of land for a long period of years proves Wakf by user. The observations of Pullan, J. to the following effect were quoted with approval:
A cemetery or grave-yard is consecrated ground and cannot be sold or partitioned. Even lands which are not expressly dedicated but are covered by graves are regarded as consecrated and consequently inalienable and non-transferable.
Again in Noor Mohammed and Anr. v. Ballahh Das and Ors. A.I.R. 1931 Oudh 293, it was held that if one portion of a continuous plot of land, where the entire plot is shown in the settlement Khasra as Kabrastan, is covered with graves the entire plot must be deemed to bear the same character and the use thereof as a grave yard would render it Wakf property. This case was carried to the Privy Council and the decision of the Privy Council is reported in . It appears from the facts that in the survey Khasra of 1868 the plot was described as a grave yard and in sub-head 5 and 6 there were entries indicating that the land was forfeited or had lapsed to the Government. There was a map annexed to that document which showed that there were scattered graves all over the plot in question. The Privy Council observed that the entry 'Kabrastan' in the Khasra of 1868 has to be read along with the map which shows whole of the plot to be a grave yard. It was observed that when in the Khasra of 1868 one comes across a description of certain land by the word 'qabristan' or graveyard, this prima facie at all events means that the land is a grave yard in the sense known to the Mohammedan Law. The Supreme Court in Mohammed Shah v. Fasihuddin Ansari and Ors. : AIR1956SC713 observed that as a matter of law a wakf normally requires express dedication but if land has been used from time immemorial for a religious purpose then the land is by user wakf although there is no evidence of an express dedication. In a recent decision in Syed Mohd. Salie Labbai v. Mohd. Hanifa A.I.R. 1976 S.C. 1869, the Supreme Court has observed as under in paragraph 28 of the judgment:. if any member of the public is permitted to be buried in a grave-yard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the grave-yard has become a public garve-yard where the Mohammedan public will have the right to bury their dead.
In the same paragraph, it has been further observed as under:
It is also well settled that a conclusive proof of the public grave-yard is the description of the burial ground in the revenue record as a public grave-yard.
In reaching this conclusion, the Supreme Court relied on the Privy Council decision in Ballabh Das v. Nur Mohammad . Again in paragraph 32 of the judgment, the Supreme Court has observed as under:
That where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard. (underline supplied).
7. Applying the aforesaid principles to the facts of the present case, we find from the evidence on record that the land in question is being used as a Kabrastan since before 1874. A tomb bearing the inscription of Hijri year 1272 (corresponding roughly to 1853 AD.) was noticed by the Assistant Charity Commissioner at the time of local inspection. We also find from the evidence on record that several graves were in existence at the time when the Assistant Charity Commissioner visited the site. The Assistant Charity Commissioner on local inspection found that the evidence given by the three witnesses was factually correct. The entry in the Sud-register ex. 3 made on May 2, 1874 goes to show that this land was reserved for public purpose (Sarvajanik mate raakhi chhe) and was used as a Kabrastan (Kabrastan-ni-Jamin chhe). It becomes clear from this entry made in the Government Record, the genuineness whereof cannot be doubted, that this land was being used as a grave yard even before May 2, 1874. The authorities below were in error in concluding that the land was given for a grave yard by this entry made in Sud-Register in 1874. This entry merely shows that on the date when the survey was undertaken in 1874 the land was already being used as a Kabrastan. This would go to show that the land was put to use for burying the dead even before this entry came to be made in the year 1874. We find from the evidence on record that there is a tomb of Hijri year 1272 on the site. The fact that this plot of land is being used as a grave yard for over a century is clearly established. It is not possible to say with certainty at what point of time such user commenced and the grant r clearly lost in antiquity. In the revision survey of 1924-25 the land came to be described as Government unoccupied land, as statement which was factually inaccurate. It is nobody's case that before this revision survey was undertaken in the year 1924-25 the cemetery was closed. On the contrary, it was in evidence that atleast from 1871 and onwards the land was being used as a grave yard. Even after the land was transferred to the Surat Municipality by the 1943 Government resolution admittedly the possession of the land was not taken by the Municipality, and the land was allowed to be used as a burial ground. It was not contended before me by Mr. Sethna, the learned Counsel for the Surat Municipality, that the cemetery has been closed by the Municipality. Therefore upto date this land is being used for the purpose of burying the dead of the residents of the aforesaid three localities. There is, therefore, considerable evidence on record to come to the conclusion that the land is being used as a graveyard for over a number of years and, therefore, a Walk by user has come into existence.
8. Mr. Christie, the learned Asstt. G.P. relied on Zafar Hussain v. Mian Mohammad Ghias-ud-Din and Anr. A.I.R. 1937 Lahore 552. He relied on the following passage appearing at page 557 of the judgment:
Under Mahomedan Law followed by the Hanafi sect to which the parties belong, even if no particular formality need be observed to make a Wakf complete, there must be unmistakable proof available that the owner made a clear declaration dedicating the property definitely and permanently to God. Even an owner's unexpressed intention to dedicate property cannot have the effect of a formal dedication. In the absence of any such intention or declaration, no Wakf can be said to have been created. It is true that a Walk can be created by user but that user too must be preceded by an intention on the part of the owner to create a Walk. If no such intention is established, user alone will not be sufficient to divest the property of its private character.
Relying on these observations made by the Lahore High Court, Mr. Christie submitted that in the instant case, the entry ex. 3 goes to show that this land was government land. He submitted that the Government had set apart this land for the purposes of Kabrastan but it cannot be said that the Government intended to dedicate the land to God and thereby create a walk. His contention, therefore, is that in the case of Government land a walk by user cannot come into existence unless there is positive evidence to suggest that the intention of the Government while setting apart the land was to create a walk. Now this decision of the Lahore High Court was cited before the Supreme Court in the case of Syed Mohd Sail Labbai, (supra) and the relevant discussion is to be found in para 58 at page 1597. The Supreme Court distinguished the Lahore judgment in the following words:
Mr. Iyer relied on a decision in Zafer Hussain v. Mohd Ghias ud-din A.I.R. 1937 Lahore 552. This case is, however, clearly distinguishable because it was not a case of a mosque which is governed by special rules for dedication. In that case the property used was a Haveli or a house and on the facts of that case the Court held that there was no validly constituted Wakf.
Therefore, the decision of the Lahore High Court on which Mr. Christie relies, is of no assistance to the respondents.
9. Mr. Christie then invited my attention to Section 38 of the Bombay Land Revenue Code, 1879, which provides that subject to the general orders of the State Government, it shall be lawful for survey officers whilst survey operations are proceeding under Chapter VIII and at any other time for the Collector to set apart lands the property of the State Government and not in the lawful occupation of any person or aggregate of persons, for free pasturage for the village cattle, for forest reserves, or for any other public or Municipal purpose. It further provides that the lands assigned specially for any such purpose shall not be otherwise used without the sanction of the Collector and in the disposal of land under Section 37 due regard shall be had to all such special assignments. Mr. Christie submitted that the present land was kept apart by the Government for the purposes of a grave yard and, therefore, it remained to be government land not withstanding the fact that it is used as a grave-yard for over a century. Now in making this submission Mr. Christie assumes that this land was given under Section 38 of the Code. This assumption is not well founded. We find from the record that the land is being used as a grave-yard since before 1871. This Code was enacted long thereafter and, therefore, the assumption that the land was set apart under Section 38 of the Code, does not appear to be correct. In any case, there is no evidence on record to suggest that this land was set apart under any provision similar to Section 38 of the Code. The land is being used as a grave yard since before 1871. It is true that in the entry ex. 3 in column 4 which deals with the character of the land, the word 'Sarkari' appears. This would go to show that in the year 1874 this land was described as Government land. At the same time in column 6 where the name of the person in whose name the land stands is to be mentioned, it is stated that it is Sarvajanik land belonging to a Kabrastan. Therefore, even though the character of the land is shown to be 'Sarkari' it is clear from the entry in column 6 that it was used for a public purpose, namely, a grave yard. If government land is used for over a century as a grave yard and the grant is lost in antiquity that land would be wakf by immemorial or long user. Section 2(19) of the Act nowhere provides that Government land cannot become wakf property by long user. The observations of Shelat, J. in Alimyd's case (supra) clearly show that after the introduction of the definition of wakf in Section 2(19) of the Act proof of dedication is no more necessary and sufficiently long user would establish a wakf. That is why the decision of the Lahore High Court in Zafer Hussein's case on which Mr. Christie relied, is not helpful. It is clear from the case law, particularly the decision of the Supreme Court that the entry ex. 3 in sud-register together with long user of the land as a grave yard for over a number of years, conclusively proves that this land is wakf property.
10. Mr. Sethna raised one technical contention, namely, that the appeal to this Court under Sub-section (4) of Section 72 of the Act is in the nature of a Second Appeal and, therefore, this Court cannot go into questions of fact and reverse the decision of the courts below. In this connection, he invited my attention to Section 100 of the Code of Civil Procedure, which provides that a Second Appeal can lie to this Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
11. Relying on this provision, he submitted that an application to the District 'Court under Section 72 of the Act being in the nature of an Appeal, the further appeal provided to this Court under Sub-section (4) of Section 72 of the Act must be treated as a Second Appeal for all purposes and hence in view of the provisions contained in Section 100 of the Civil Procedure Code this Court cannot go into questions of fact and reverse the decision rendered by the authorities below. Mr. Patel, the learned Asstt. G.P. appearing on behalf of the Charity Commissioner, supported this contention urged by Mr. Sethna. To my mind this contention is clearly misconceived. Under Section 72(4) of the Act, an Appeal is provided to the High Court against the decision of the court (court under Section 2(4) means a District Court), as if such decision was a decree from which an Appeal ordinarily lies. There is nothing in Sub-section (4) of Section 72 to conclude that no appeal can He on questions of fact against the decision of the District Court. It merely provides that an appeal shall lie to the High Court as if the decision of the District Court is a decree from which an appeal ordinarily lies. That cannot mean that the limitations provided by Section 100 of the Code on the jurisdiction of the court must be read in Sub-section (4) of Section 72 of the Act. In support of his contention Mr. Sethna invited my attention to a decision of this High Court in Hiragar Dayagar and anr. v. Ratanlal Chunital and ors. (1972) 13 G.L.R. 121. In that case the division bench came to the conclusion that an application under Section 72 of the Act to the District Court is in the nature of an appeal as the District Court is conferred with the jurisdiction to revoke or modify the decision of the Charity Commissioner. Taking that view, the court observed that there can be no doubt that though the word 'Appeal' is not used by the Legislature and the proceeding under Section 72 is designated an application, the jurisdiction conferred on the District Court while dealing with such proceedings is appellate jurisdiction. It was, therefore, held that when the District court deals with an application under Section 72, it exercises its appellate jurisdiction and the order made by District Judge, which came to be confirmed by the Single Judge of the High Court, was clearly an order made in exercise of appellate jurisdiction and no Letters Patent Appeal (L.P.A.) can lie against that decision of the Single Judge. It will appear from these observations that the question before the Division Bench was whether a L.P.A. can lie against the decision of a Single judge rendered under Sub-section (4) of Section 72 of the Act. This decision is not an authority for the proposition that the appeal under Section (4) of Section 72 of the Act would be governed by Section 103 of the C.P. Code. 1, therefore, do not understand how this decision can be of any assistance to Mr. Sethna in the view canvassed by him on the scope of the appeal before this Court under Section 72(4) of the Act. Even otherwise, there is no merit in the contention as I have proceeded to dispose of this appeal on the admitted facts without questioning the findings to fact recorded by the learned Assistant Judge. On the facts found by him I have come to the conclusion that a wakf by user is established. Hence this contention must fail.
12. In the result, therefore, this appeal is allowed. The decision of the Assistant Charity Commissioner in Inquiry No. 54/68 to file the papers, which has been confirmed by the Joint Charity Commissioner in appeal and by the learned Assistant Judge, Surat in application under Section 72 of the Act, is set aside. The proceedings shall be remanded to the Assistant Charity Commissioner for disposal of other issues which arise in the inquiry under Section 18 of the Act, which have not been answered in the view taken by him. In the circumstances of this case, there shall be no order as to costs thoughout.