Subba Rao, J.
1. This second appeal arises out of O. S. No. 446 Of 1947 on the file of the District Munsif of Gobicbettipalayam, a suit filed by the first respondent for a declaration of his title and for a permanent injunction restraining the defendants from interfering with his possession. The facts found or admitted may briefly be stated: The plaint schedule property is the northern portion of S. No. 152-B. This is on a higher level than the rest of the survey field. It has never been under cultivation. In the year 1899 under Ex. A.I, the entire item fell to the share of one Peerkhan Sahib in a partition that was effected between him, hie brothers and father. Under Ex. A. 2 dated 9-12-1918 Peerkhan Sahib usufructuarily mortgaged the same to the plaintiff. On 4-3-1918 he executed a simple mortgage Ex. A. 3 of the same property in favour of one Aminabi. Ex. A. 4 dated 1-8-1924 is another registered usufructuary mortgage deed executed by Peerkhan Sahib is favour of the plaintiff. In none of the mortgage deeds it was mentioned that the plaint schedule property was used as a burial ground. Exs. A. 7 to A. 9 and A. 11 lo A. 23 are leases executed by the mortgagor in favour of the mortgagee in respect of the said site. They range between the year 1933 and 1943. Even in these documents the north western part of it was neither excluded nor described as a burial ground. Ex. A. 6 of the year 1930 and Ex. A. 10 of the year 1937 are leases executed by third parties. The entire S. No. 152-B was leased out to them. From 1918 onwards several deceased members of Peerkhan Sahib's family were buried in the said site. The defendants are the sister's sons of Peerkhan Sahib. In 1930 Peerkhan Sahib was buried. The defendants' grand-daughter, the defendants' sister, the defendants' uncle Usmankhan, the third defendant's grandmother and the defendant's father were buried in the suit site in 1928, 1934, 1945, 1945 and 1947 respectively. Even before 1928, there is evidence to establish that from 1918 onwards there were other burials of the dead bodies of Peerkhan Sahib's mother, his brothers and the first defendant's father.
After Peerkhan Sahib's death, his sons became insolvents and the suit land along with other properties of Peerkhan Sahib was sold in auction by the Official Receiver and the plaintiff purchased the same in that auction. After the purchase he enclosed the land by means of a fence and was in enjoyment thereof. In the year 1947 the defendants destroyed 12 feet of the east to west fence in the northern boundary of the suit land and buried the dead body of one Rahiman Khan Sahib. The plaintiff therefore filed the aforesaid suit for declaration of title and injunction. The defendants claimed that, the north west portion of S. No. 152-B was dedicated for burying the deceased members of the defendants' family and that they also acquired a right by adverse possession. The learned District Munsif held that the dedication pleaded was true and that the plaintiff failed to establish that he was in possession of the suit site within 12 years prior to suit. In the appeal, the learned Subordinate Judge held that the defendants failed to establish that there was dedication or that they had acquired a right by adverse possession. He also rejected the plea for the first time raised before him that the defendants were licensees coupled with a grant. In the result, he decreed the suit. The first defendant has preferred the above second appeal.
2. The learned counsel for the appellant contended that the lower appellate court should have inferred from the facts found that the defendants were licensees coupled with a grant. He has also pressed on me to hold that the judgment of the Judicial Committee relied on by the lower appellate court does not prevent a court from drawing an inference of the existence of a licence coupled with a grant. Before noticing the judgment of the Judicial Committee, it will be convenient to refer to the earlier decisions to ascertain how far and to what extent the Judicial Committee overruled or disproved the previous existing law on the subject.
3. In -- 'Sheo Raj Chamar v. Mudeer Khan' : AIR1934All866 a Bench of the Allahabad. High Court had to deal with the nature of a right to bury dead bodies and the manner in which that right could legally be conferred. There, a certain Muhammadan family had more than 30 years been using a plot of land belonging to another person as a graveyard for burying their dead in it, but the origin or source of this right or practice was not known. The learned Judges held that the long user gave rise to a presumption of a dedication of the graveyard or of a licence coupled with a grant and irrevocable in the past on the part of the then owners of the land. Sulaiman C. J. made the following remarks at page 871 which the learned counsel for the appellant strongly relied upon in support of his contention. The learned Chief Justice said:
'If the right is not an easement, then it can be a licence coupled with a grant. The right to bury the dead cannot be a mere license; for, from its very nature the permission is irrevocable. An owner of land cannot permit a corpse to be buried and then later on ask that the grave should be excavated and the corpse removed. If the permission from the very beginning is irrevocable, it cannot be a mere licence. It must necessarily be a licence coupled with a transfer, that is to say, a grant. If the right implies that the space should not be used by the , original owner for any purposes whatsoever, then the spot must be taken to be gifted or granted or, at any rate, dedicated or consecrated for burial purposes.'
4. A similar question arose in the Calcutta High Court. In -- 'Jogesh Chandra v. Niranjan De' : AIR1935Cal357 the learned Judges accepted the principle that land for use as cremation ground could be acquired by dedication or by prescription. The Nagpur High Court in -- 'Ganpatrao Madharao v. Badar Farid' AIR 1939 Nag 193 (C) inferred from the fact that the Mahammadans were using a ground as a burial ground for 45 years, that at some time in the past there was granted to this Muhammadan Community a right to bury their dead in the suit land. They applied the principle of lost grant. But the Judicial Committee in -- 'Lakshmidhar Misra v. Rangalal', (D), gave a new orientation to the principles so long accepted and adopted by the courts in India in regard to the right to bury in sites belonging to others. In that case the disputed area was used as a cremation ground by the villagers for a long time and their Lordships had to consider the legal basis on which the appellants could claim the said site as a burial ground. They noticed one after another the various legal conceptions invoked by the High Court in that case. Dealing with the dedication they observed (at page 58):
'But dedication is only known to English law as something equivalent to an irrevocable licence granted by the owner of soil to the use of the public. Dedication of a piece of land to a limited section of the public such as the inhabitants of a village, is a claim unknown in law.'
The case of charitable trust was ignored as that ease was not set up and that no evidence was available in support of that case. They brushed aside the doctrine of lost grant with the following observations at page 59:
'But such a right, just as much as an easement, had to be attached to and to descend with an estate; moreover, since it originated in grant, its owners whether original or by devolution had to be- such persons as were capable of being the recipients of a grant under English law. A right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant. There are no admissible grantees.'
But their Lordships on the facts of that case remarked as follows:
'The appellants have made out their case that the disputed area is bound by custom to be reserved as village cremation ground.'
5. The view adumbrated by the Judicial Committee was accepted and followed by the Supreme Court in -- 'Braja Sundar Deb v. Moni Behara' : 2SCR431 . Mahajan J. made the following observations in regard to the aforesaid judgment of the Judicial Committee Cat page 251),
'As pointed out by Lord Radcliffs in -- ' (D)', the doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and that since it originated in grant, its owners, whether original or by devolution, had to be such persons as Were capable of being the recipients of a grant and that a right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant there being no admissible grantees.'
6. In view of the clear enunciation of the rules of law by the Judicial Committee and the Supreme Court it is not open to the learned Advocate for the appellant to contend that the right to bury the dead in the plaintiff's land can be sustained by invoking the doctrine of lost grant. Nor can he rely upon the doctrine of dedication for the said doctrine of dedication according to the Judicial committee could not be invoked as the dedication was not claimed for the benefit of the entire public. The learned counsel admitted that his clients could not rely upon customary right to bury the dead. But he pressed on me to hold that notwithstanding the decision of the Judicial Committee the observation of Suiaiman C. J. in : AIR1934All868 , was still good law and, therefore, on the facts it should be inferred that the defendants were licensees coupled with a grant. Whether it is an absolute grant or a licence coupled with a grant, in either case the same objections would apply. In either case the grant is invalid because the grantees are not capable of being the recipients of a grant. Who was the grantee in this case and who was the grantor? If it was Peerkhan Sahib or even his predecessor-in-interest, could either of them have made a gift to himself or to the members of the family the members whereof would vary from time to time? Unlike Hindu law, the Muhammadan family is not a legal entity and therefore, any such grant would be bad. Further, there is no scope for the application of the principle of lost grant in this case as from the aforesaid statement of facts it is manifest' Peerkhan Sahib got the property in the partition and subsequent documents clearly show that he was dealing with the entire property as his own. It is then contended for the first time before me that Peer-khan Sahib gave a licence to the members of the family and that licence had become irrevocable under Section 60, Easements Act, as pursuant to the licence given substantial structures were put up by the defendants. That is no evidence to establish that licence was given or that any substantial structures were put up. This is an argument which cannot be disposed of without elucidating further facts and therefore cannot be allowed to be raised for the first time before me.
7. For the aforesaid reasons, I hold that thejudgment of the lower appellate court is correctand the appeal fails and is dismissed with costs.(No leave).