Jitendra Nath Addy vs Muslim Public of Mouzas

Mookekjee, J.—The Plaintiff-Appellants filed suit, out of which this appeal arises, for a declaration that the Defendants who represent the Mahomedan public of Chetla, Gopalnagore, etc.,-in the southern suburbs of Calcutta have no right or interest in the lands in dispute. The Plaintiffs and the pro forma Defendants 1 to 8, who have been transposed to the category of co-Plaintiffs claim that the property in dispute is a secular one belonging to them. It was never a wakf and had never been a graveyard of the Muslim public. The Plaintiffs and the co-Plaintiffs claim in the alternative to be in adverse possession by assertion of their title for a period long over 12 years.

The principal question in issue is whether the lands in suit formed part of a wakf and was a graveyard. If it is so found in the affirmative, can the title of the Mahomedan public be destroyed or has been destroyed?

As the Municipal premises numbers had been changed from time to time the question of identity and extent of an old Mahomedan burial ground which had been in existence in that locality also falls to be decided.

The case as made in the plaint may be shortly stated. The land now in dispute, was numbered 65/2 Tollygunge Circular Road. It was next changed to 129 Tollygunge Circular Road. Subsequently it was renumbered as 78 Alipore Road and is at present 68 Alipore Road. The Plaintiffs case is that the land had never been a part of 50 Tollygunge Circular Road which was admittedly a Mahomedan burial ground.

The Plaintiff''s case is that this property originally appertained to a niskar holding which had belonged to Mahammad Chand Mistry, Matiullah Mistry and Sonaullah Mistry. Digambar Mitra and Patit Paban Mitra in their capacity as executors put up the right title and interest of Ehsanu Bibi and others who were then in enjoyment of the property as successors in interest of the said Mistrys. One Basiruddi Sheikh purchased the same at the court sale. Basiruddi sold his interest in 1874 in favour of three persons, Erfanullah, Karfaddeja and Badarudaja and possession was delivered to them. Erfanullah obtained a moiety share and the remaining two jointly got the remaining half.

The Auddys of Chetla, who are in the present suit represented by the Receivers as Plaintiffs, brought a suit in 1905 against Karfadeja and Badarudaja and obtained a decree against them. The undivided eight-anna share of the said judgment-debtors was purchased by the decree holders in a court sale held in July 1906. After the sale had been confirmed in August 1906 the decree holders obtained the certificate of sale and took delivery of possession and the Auddys have been in possession ever since. The receivers now representing Auddys were so appointed in a Partition suit filed in 1937 in the Alipore Court.

It is further alleged that Bajli Rahaman, son of Erfanulla, the owner of the remaining half of the niskar holding sold that share to one Motilal Porel in August 1899. Motilal, who was thereafter in possession mortgaged that share in favour of the predecessors in interest of the present Auddys. The interest of Motilal was transferred and after certain successive transactions the pro forma Defendants, who have now become co-Plaintiffs purchased the same in a Court sale in July 1921. The Auddys and the pro forma Defendants claim that they ever since remained in possession of the property adversely to all others. They have thus acquired an independent and good title to the property by adverse possession besides the title acquired by purchase.

Defendants 7 and 8 and the predecessors of some other Defendants put forward a claim on behalf of themselves and on behalf of the Muslim public of the locality that the land was a burial ground being a part of a wakf property which formed part of what was 50 Tollygunge Circular Road. On attempts being made by them and on their behalf to effect forcible entry into � the land proceedings tinder Section 144 of the Code of Criminal Procedure had been started against some of the parties. Proceedings u/s 145 of the Code of Criminal Procedure were then drawn up and an order for attachment u/s 146 of the Code was passed in respect of the property in suit, viz., what is now 68 Alipur Road.

As already stated the Plaintiffs and the co-Plaintiffs claim that this land had never been a part of 50 Tollygunge Circular Road or a graveyard and had never been used by the local Muslim public as such. The local Muslim public had never possessed the disputed property in any way. The Plaintiffs accordingly filed the suit for a declaration of their title and that the Muslim public had no right or interest in the said property.

It was contended further that as the property is now under attachment by the Criminal Court the Plaintiffs being the real owners and being in possession previously simple declarations as aforesaid would be sufficient.

The original Plaintiffs had claimed a declaration of their title with regard to an eight-anna share of the property. On the transposition of the pro farma Defendants to the category of co-Plaintiffs the claim now covers the entire sixteen-anna interest of the land in suit.

Defendants 2, 3, 7, 9, 10, 11 and 13 filed a common defence.

Objection was raised about the frame of the suit. It was claimed that the lands in suit appertained to the burial ground which covered premises No. 50, Tollygunge Circular Road, maintained under the supervision of one Torab Mistry. The plot was originally included within the South Subarban Municipality. When the area came under the Calcutta Municipality and later on the Corporation of Calcutta disputes arose about the use of the plot as a burial ground. Dr. Adul Latiff and others as representatives of the Muslim public instituted a suit (T.S. 117 of 1902) against the Municipality in the court of the First Munsif of Alipore. A similar suit (T.S. 141 of 1902) was brought by one Mutwalli Dilwar Hossain. The two suits were heard as analogous ones. The property then in suit was declared to be a wakf property known originally as the Durgapur Public Burial Ground and that the Mahomedan public had the right to bury their dead therein. One of the witnesses examined on behalf of the Calcutta Municipality was Babu Amulyodhone Auddy, one of the then principal proprietors of the Addy Estate now represented by the Plaintiff Receiver. The Defendants claimed that the Plaintiffs were bound by the said decrees and the present suit was barred by res judicata.

It was further contended that the said Durgapur Public Burial Ground had been recorded in the list of graveyards maintained by the Moslem Burial Board under the direction of the Government ever since 1888. Reference was also made to various publications by the Calcutta Corporation, accepting the property now in suit to be a burial ground although the premises number had been changed from time to time. The Defendants'' case was that there had been a dedication of the property as a burial ground and that it had been used as such from time immemorial. The allegation made by the Plaintiffs about the history of title was denied. It was further claimed that there were many graves still to be found within the plot in suit. The various transactions entered into by Dilwar Hossain or his father Farak Hossain when acting as Mutwali were described to be fraudulent ones. Various interested persons were alleged to have been attempting to have the property declared as a secular one, as on its inclusion within the Calcutta Corporation the market value had risen very high. Such attempts, however, were not binding on the Moslem public. Even though burials had been stopped from 1904 under a notification issued under the authority of the Government, the identity of the property in suit as the Durgapur Burial Ground cannot be disputed. The property continues to remain as a wakf property under the Mahomedan Law.

On the pro forma Defendants being transposed to the category of co-Plaintiffs as additional written statement was filed by the Defendants. The title of the co-Plaintiffs was denied and the transactions under which the co-Plaintiffs claimed their title were alleged to be fraudulent ones which could not affect the title in and possession of the Moslem public the disputed property as a burial ground and as a wakf property.

One of the principal questions in the suit relates to the identity of the plot now in dispute with the boundaries of the old burial ground within 50 Tollygunge Circular Road and of various Municipal premises as and when the Municipal numbers were changed. A Commissioner was accordingly appointed (1) to elucidate among others the point as to whether the disputed land forms part of the former premises No. 50, Tollygunge Circular Road and (2) whether the disputed plot was the subject matter in T.S. No. 117 of 1902 of the Court of the First Munsif, Alipore.

The Commissioner was further directed to relay Smart''s Survey Plan with that of the Commissioner in T.S. No. 117 of 1902 with reference to the plan of the present disputed lands and to prepare a comparative plan.

The Commissioner was enjoined to find out what was really old premises No. 50, Tollygunge Circular Road.

The Commissioner found the lands now in dispute to be part of premises No. 65/2 of Smart''s Plan which forms part of the lands shown by the Defendants to have been the suit lands in T.S. 117 of 1902 being premises No. 50, Tollygunge Circular Road.

The learned Subordinate Judge came to the conclusion that the suit land had neither been dedicated as a wakf nor as a public burial ground. The land was the secular property of the Mistrys. Though used by such owners and probably by the Mahomedan public for burials there was no proof of immemorial user. No objection was raised by anybody to burials within the plot so long as the Mistrys were the owners. Objections to the user of the land as a burial ground, however, did not shape till more than 12 years had elapsed after the land had passed out of the possession of the Mistrys. Land which had been used as a burial ground, public or private, could not, it was held, be transferred. The Plaintiffs'' predecessors did not, therefore, acquire any title by their purchases.

It was further held that even after the closure of the Mahomedan Public Burial Ground the land must be deemed to be continuing in the constructive possession of the Moslem public unless there be evidence that such constructive possession ceased to exist. The Plaintiffs were found to have failed to establish that they possessed the land adversely to the Mahomedan public.

The decision in the 1902 suits though not res judicata in this suit was a strong piece of evidence in support of the Defendant''s case.

The Plaintiff''s suit was accordingly dismissed.

The original Plaintiffs have appealed to this Court. The Nahar added Plaintiffs have not joined as Appellants but support the latter.

Mr. Chakravarty has raised various contentions in support of the appeal.

As indicated already one of the important questions of facts which arise for decision is about the identity of the plot now in suit and whether the same formed part of premises No. 50 Tollygunge Circular Road or of what was known as the Durgapur Burial Ground and formed the subject matter of the two suits in 1902.

It is urged on behalf of the Appellant-

(1) that the Commissioner''s map prepared in the 1902 suits

could not be used for relay in the present case as the accuracy of the former had not been proved. In any view the identity of the suit lands with any burials or burial ground had not been made out.

(2) No wakf had been created and or could be presumed to

have been created.

(3) Entry in the Municipal Registers as a Moslem Burial

Ground cannot and did not give any right to the Mahomedan public as against the Plaintiffs.

(4) Burying the dead in certain portion''s of the plot fcr

over 12 years could not create any right in the land in favour of the Defendants. There had been no such case made in the pleadings.

(5) The Plaintiffs have now got a good title by adverse possession to the lands, even if the lands had been used as a burial ground. Such rights as the Mahomedan public had, that has been destroyed by adverse possession.

We shall take up the points in the order in which they have been mentioned above.

A Commissioner had been appointed for local investigation in the present case. He had been furnished with copies of the pleadings and certified copies of the plan and report prepared by Shri Harijiban Roy, the pleader Commissioner in T.S. 117 of 1902. and a copy of Smart''s Plan.

A certified copy of Commissioner Roy''s plan in the 1902 suits was in a tattered condition. It was compared with the original copy of the plan in the records of that suit. Certified copies of the judgment and decree in the suits of 1902 have been marked as exhibits in the presend suit. Copies of those pleadings are not included in the printed records of this appeal and have not been referred to. Harijiban Roy, pleader Commissioner in the''suits of 1902, has not been available for examination in the present suit. The map prepared by him is Ex. Tin the present case.

The pleader appointed as Commissioner in the present suit was examined as a witness in this case. He states that he had compared the original case map of T.S. 117 of 1902 with the certified copy which he had received with his Writ. The original case map also was found torn in places, but it could be checked.

It was not possible for the present Commissioner to be satisfied as to the accuracy of the plan as prepared by the Commissioner in the suits of 1902. He did not see the premises regarding 50 Tollygung Circular Road as shown in Smart''s Plan as the parties did not show that to him. He had relied upon a big triangular enclosure for the relayment of Roy''s Plan. Smart''s Plan was prepared in 1903 to 1907. Roy''s Plan is dated January 1902 or 1903. The Commissioner states that there appeared to be some sort of agreement between the western side of present Alipur Road and western side of Tollygunge Circular Road as shown in Smart''s plan. He could not, however, rely on the western side of Tollygunge Circular Road and it could not be cheeked. He did not test the accuracy of the 1902 relay.

The objections raised before us on behalf of the Plaintiffs about the method of relay may not be very substantial but the correctness of the Commissioner''s work of 1902-1903 could not be and has not been substantiated.

The identity of the disputed burial ground in the 1902 suits, with premises No. 50. Tollygunge Circular Road, was not denied in that earlier suit. The plan of 50 Tollygunge Circular Road as filed by the Defendant Corporation in that suit was accepted by that Court as having tallied with the plan filed by the Plaintiffs in those suits. The courts further came to the conclusion that the boundaries and areas of the Durgapur Burial Ground as given by the Plaintiffs were correct. The position is, however, different in the present case. The question of identity is not denied. Relaying as made by the Commissioner in the 1902 suits is not accepted as having been correctly made.

In the present case, the Commissioner has relaid the case map of the earlier suit with reference to certain local pecularities and to a certain extent on the boundaries. Objection has been raised on behalf of the Plaintiffs, now, as in the lower court, about the method of relay. Such objections are not very substantial ones. It must, however, be stated that the correctness of the Commissioner''s works in the previous suits could not be and has not been substantiated, whether the old case map correctly delineated premises No. 50, Tollygunge Circular Road. The Commissioner has on the present occasion found that the present suit lands fall within the area what had been found on the previous occasion to have been the old Durgapur Burial Ground.

It is contended on behalf of the Plaintiffs Appellants that u/s 83 of the Evidence Act maps or plans made for the purposes of any cause, as the Commissioner''s case map in the suit of 1902 was, must be proved to be accurate. This contention is well founded (Maharaj Kumar Ram Ranbijoy Prosad Singh v. Bahuria Musammat Bhagjogna Kuer (1937) 41 C.W.N. 577 P.C.

Correctness of the relay in the 1902 suits becomes important in the present case. That which was admitted previously is not so done now. Further the area now in suit as described by the Plaintiffs in the schedule to the plaint is 4B.7C; but the Commissioner in his report in the present case indicates that the area of the Burial Ground and of the lands in dispute vary from map to map and in the pleadings-"The area of the suit lands as "shown by Plaintiffs is found out to be 2B.13C.11Ch.38 sq. ft. "and the same for premises No. 65/2 of Smarts Plan is found "out to be 2B.6C.2Ch.23 sq. ft. as against 4B.7C more or less of "premises No. 65/2, as claimed by the Plaintiffs in the plaint. "The area of the lands as shown by the Defendants as described "above is 5B.16C.14C.8 sq. ft. as against 3B.10C. as described "in the plaint in T.S. No. 117 of 1902 and as against 5B.6C.7Ch. "as in Mr. Roy''s report. So it may be said that while the area "according to the Defendants showing very closely agreed with "that as claimed in T.S. No. 117 of 1902, the area according to the "Plaintiffs showing is most inconsistent with what has been "claimed in the present suit".

The principal defence to the palintiffs'' claim is that the lands in suit are covered by the old burial ground which had been premises No. 50, Tollygunge Circular Road. The decision in T.S. No. 117 of 1902 has been found not to be res judicata in the present suit. This is not questioned by the Defendants. The learned Subordinate Judge has treated the Commissioner''s map along with the report to be a piece of evidence in the present case, It therefore falls to be decided in the present case whether the entire area now in dispute is covered by what was the original burial ground. The area of the entire burial ground as given in Corporation records is only 3 bighas and 1 chattak only (see Ex. S) as against 4 Bighas 7 Cottas claimed in the present suit.

It is no doubt true that from Ex. M and M(1) being extracts from the Assessment Book from 1885 to 1890-it appears that 50 Tollygunge Circular Road is recorded as a burial ground and from Ex. S(1) which is a list of burial grounds maintained by the Corporation and is subsequent to 1904, the Durgapur Burial Ground is described as having been "50 now 131 Tollygunge "Circular Road" but there are no materials from which it can be ascertained how and when old premises No. 52 had at some stage or other became 131 Tollygunge Circular Road. The different areas of the premises as recorded introduce a factor which cannot be ignored.

There are also conflicting entries in the Municipal Assessment Register. In Ex. M(5) old premises No. 69 became premises No. 50 lands in the occupation of Kalidas Bose. It appears no tax was levied. By 1899 in Ex. M(6) tax was being assessed. In Ex. M(7) premises No. 50 is described as "T. land" in column 3. But under column 8 whereunder the Municipal tax per quarter in each share is to be entered, there is no entry. Premises No. 65/2 is recorded during the period of 1900-1901 (Ex. M(9) and during 1900 and 1905 in Ex. M(S)) as a piece of land of which the owner is one "Karfuddhoja and others". The amount of Municipal rate payable quarterly is Rs. 1-7-3.

The Assessment Registers therefore as maintained by the Municipality cannot be relied upon as being consistent with the story that the same plot had been entered at successive stages. If reference is made to the deposition of P.W. 8 one of the assistants of the Assessment Department of the Calcutta Corporation we find that the previous No. 65/2 could not be traced from the Corporation Register. Similar is the statement of P.W. 3 the clerk in the Assessment Department of the Corporation.

The learned Subordinate Judge thinks that the confusion is cleared by the finding of the Commissioner in the present case that premises No. 65/2 had come out of old 50 Tollygunge Circular Road. The learned Subordinate Judge has not considered the question of identity himself as he thinks that the finding of the Commissioner having been accepted by his predecessor in office the question had been set at rest.

The learned Subordinate Judge could not be prevailed upon to examine whether the finding of the Commissioner was correct. He, however, thought that it was not open to the Plaintiffs to challenge the result of the investigation of the Commissioner of the earlier suit that the suit land is part of premises No. 50, Tollygunge Circular Road which was the subject-matter of T.S. No. 117 of 1902.

Although the defence is mainly founded on the allegation that the property now in dispute was a part of the old burial ground described as 50 Tollygunge Circular Road, it is not appreciated how the learned Subordinate Judge could say that his refusal to allow the Plaintiffs to challenge the investigation of the Commissioner did not affect the question raised in the suit, whether the suit land is the secular property of the Plaintiffs and the co-Plaintiffs or whether it is a graveyard of the Muslim public.

We must therefore hold that on the materials before the Court it is not possible to state that the land in suit covers a portion of 50 Tollygunge Circular Road and as such was a part of the burial ground. Even if the present premises and 50 Tollygunge Circular Road are identified in part only a portion of the suit lands would be covered by the old burial ground. Until and unless the relay by the 1902 Commissioner is proved to be correct and accurate the conclusion reached by the present trial Judge cannot be accepted.

Although the Defendants had originally denied the correctness of the history of title of the Plaintiffs and co-Plaintiffs this had not been seriously questioned thereafter. The Defendants'' case really was that on the strength of such transactions and proceedings on which the Plaintiffse based their title they had not got any title as the property in question was wakf or in any view used as a burial ground and thus ceased to be a transferable secular property.

What the court has therefore to find out, is whether the bar relied upon by the Defendants, destroys the effect of the various transactions and court sales as the case may be.

On the conclusion reached by us that the materials in the record are not sufficient to prove that, what portion, if any, was within the old Durgapur Burial Ground, the first of the objections raised by the Defendants is avoided.

It is next contended that the property in suit was a wakf property. This property, as was known previously by the distinguishing Municipal numbers, had been included in the list of burial grounds as maintained by the Municipality. Exhibit 9 is one of those extracts from the register. Although it is stated that the lands had been in use for burial for about 40 years it was not wakf and was then covered with thick jungles. There was no mollah or any establishment maintained for use as a burial ground. The permission of the owners is necessary-but they have disallowed any burials-"people sometimes stealthily come "and bury their dead without the knqwledge of the owners". There had been 4 burials in 1887. There was only one yucca grave and some kutcha graves. Reference may in this connection be made to the successive Municipal Acts, Bengal Act v. of 1876 (Section 278), Act II of 1888 (Section 373), Act IV of 1889 and Act III of 1899 (Section 539).

In the absence of any evidence of dedication the learned Subordinate Judge held that dedication as a wakf or a public burial ground has not been proved. To this extent the finding cannot be assailed. But it is argued on behalf of the Defendants that in the absence of direct evidence of dedication, evidence of user may establish such dedication.

To prove the creation of a wakf there must be shown the intention to set apart a property for charatible purposes. But where there is neither a declaration of wakf nor delivery of possession a mere intention to set apart property for charitable purposes is not sufficient to create a wakf, even if the income of the property is applied to the intended purpose Zaffar Hussain v. Mahomed Ghiasuddin ILR (1937) Lah. 276; Rahima Bibi v. Mustafa AIR (1938) (Ran.) 264; Banubi v. Narsingrao ILR (1906) 31 Bom 250; see also Mohammad Ali v. Mt. Bismillah Begam (1931) 35 C.W.N. 324 (P.C.); AIR 1948 168 (Privy Council) .

If a wakf is not proved to have been created by a document evidence of intention is always admissible Salig Ram v. Amjad Khan (1906) W.N. (N.W.F.) 159; Zooleka Bibi v. Syed Jainul A bedin (1904) 6 B.L.R. 1058; Muhammad Imdad Ullah Vs. Mt. Bishmillah alias Haliman Bibi and Others, .

The evidence adduced in the present case that the owners were not permitting burials will be relevant evidence to prove the absence of intention to create of wakf. The question whether a wakf is proved to have been created is a question of legal inference to be drawn from the facts: Mwsaheb Khan v. Rajkumar Baksld AIR (1938) (Oudh.) 238.

The learned Subordinate Judge was therefore right in holding that the land was the secular property of the Mistrys but was used occasionally for burials either by the family or sometimes by the public. This was the position till 1873 until the property went out of the hands of that family the then owners, of which had been objecting to such use. In the registers, however, the land came to be recorded as a public burial ground.

Reference has been made to the depositicns oi a member of witnesses on behalf of the Defendants, viz., witnesses Nos. 1, 2, 3, 5, 6 and 7 and to the statements by Plaintiffs'' witnesses Nos. 1, 2 and 4 in support of the user of some portion or other for burial. Such burials continued for long over 12 years adversely.

What was the effect of such user? The learned Subordinate Judge has held that over the entire land the Plaintiffs have lost their right and the plot has become a burial ground. In this connection reliance was placed on the findings reached by the Court in T.S. Nos. 117 and 141 of 1902. As stated already the correctness of the relay of the Commissioner in 1902 has not been proved on this occasion and the learned Subordinate Judge also has rightly refused to accept the suggestions now made that the oblong marks in the 1902 map are grave marks as there was no evidence to support that. Too much weight was, however, given to the findings in the earlier suit by the learned Subordinate Judge. Only so much of the present evidence as supports the Defendants case can be taken into consideration.

The law as to conversion of private property into a burial ground is now summarised in the latest (14th) Edition of Mulla''s Mahommedan Law (1955) in Section 188. Reference may also be made to Ameer Ali''s Mahomedan Law Vol. I (4th Ed.), pp. 406 and 474 and to the decisions referred to by Mulla.

When a secular and private property is converted by user for public burials only such portions as are covered with graves are so consecrated-the rest of the area not. Such was the view expressed AIR 1931 45 (Oudh) .

When private rights are destroyed by adverse possession or the members of the public acquire rights over the personal properties of private individuals the extent and nature of public use has to be strictly scrutinised. The onus on the Defendants to prove user over the entire area as a graveyard lies heavily on them. If the Commissioner''s map of 1902 had been proved to have been accurately delineated and all the findings of the learned Subordinate Judge based on that Commissioner''s report and evidence adduced before him had been all available now as evidence-there might have been some justification for coming to the conclusion that a substantial portion of the area had been used for burying the dead. But if such materials be excluded the evidence adduced now falls far short of the minimum required to prove user of the entire area by the public.

Entries in the Municipal Registers though evidence of recognition by the public authorities as a graveyard-are not conclusive evidence of the user of the entire area. This is more so in the present case as burying of dead had been prohibited for decades by the Municipal authorities and there had been only stray and occasional clandestine burials during a period of about 40 to 50 years.

What is further the evidence of the number and position of the places where old graves were found out? They are only a few as noticed by the Commissioner for local investigation.

The Plaintiffs made an alternative case to meet the claim of the Defendants that the suit lands were a burial ground. They claimed that they had been in possession for long over 12 years and had successfully kept out the Mahomedan public from exercising any right of burial. The right which the public might have got has thus been extinguished.

This argument is to some extent a misconceived one. It is one thing to say that the right of the public as proved now is over a limited portion of the lands and quite a different thing to urge that the Moslem public has lost all rights by adverse possession. Once it is held that the Moslem public had got or acquired rights over a land or a portion thereof as public graveyard-such portion becomes a wakf property and it becomes inalienable even after the Municipality closes the graveyard Abdul Goffoor v. Rahmat Ali AIR (1936) (Oudh.) 245, see also Eshan Bag v. Rahmat Ali ILR (1934) Lah. 647.

There is evidence of occasional user on behalf of the Plaintiffs in Exs. 12 and 16 series and in the depositions of Plaintiffs'' witness referred to by the learned Subordinate Judge. Such evidence of possession, however will not be sufficient to extinguish the right of the public to use as a burial ground. How could the public exercise their rights in the face of the discontinuance of the burial ground under the Municipal Acts?

The evidence as to acts of possession by the Plaintiffs and Defendants show that both the parties were attempting to use the land in casual ways, by removing trees or bamboos or fruits and putting up fences, etc.

Such, rights us the Muslem public got could not be extinguished by such stray acts of casual possession.

The Defendants, therefore, have still got rights ov^rsuch portion of the land in suit as have got graves or indicate that there had been graves.

The materials now before us are not sufficient and clear enough to dispose of the matter finally. We indicate, below how this may be done.

This appeal is allowed in part and the judgment and decree of the Court below are set aside. This case will go back to the trial court. The learned Subordinate Judge will direct a fresh local investigation to ascertain in what portions of the land in suit there is evidence of there having been old graves. On receipt of the report of the Commissioner the learned Subordinate Judge will proceed to determine such areas as are now found to be covered by graves.

He will take into consideration the report by the Commissioner for local investigation, his deposition, if he is examined by either of the parties, and the evidence already on the record. He will exclude from his consideration the materials of and dependent on the 1902 suits.

The, Plaintiffs and the co-Plaintiffs will be entitled to a declaration of title to the suit lands only over areas which are to be found by the Subordinate Judge not to have been used for graves and that the Moslem public have no right over the same.

The Plaintiffs'' claim in respect of the remaining portion will stand dismissed. Each party will bear the respective cost in this Court. Future costs will be in the discretion of the court below.

Mitter, J.

I agree.