JUDGMENT
K.P. Sivasubramaniam, J.
1. This second appeal is directed against the judgment of the learned Subordinate Judge, Cuddalore in A.S.No. 132 of 1983 in partly reversing the judgment of the learned District Munsif, Cuddalore, in O.S.No. 547 of 1979. The plaintiffs 2 and 3 and the legal representatives of the first plaintiff are the appellants in the above second appeal.
2. The plaintiffs filed the suit for declaration of their title to the suit property and for a permanent injunction restraining the defendants from interfering with the plaintiff’s possession and enjoyment of the suit property. According to the plaintiffs, the suit properties situate in Kurinjipadi village, originally belonged to the joint family of one Arumugha Asari and his sons who were in enjoyment of the same till they sold it to the father of the plaintiffs and the senior paternal uncle of plaintiffs under sale deed dated 5.5.1922. But due to clerical mistake the property was wrongly given in the description of the property in the sale deed and instead of mentioning Survey numbers as 83/1, Order 83, Survey Numbers 88 and 75 are given. The plaintiffs also pleaded that their father and uncle were put in possession of the property and they were in enjoyment of the same. The vendors under the sale deed had directed the purchasers to discharge the mortgage dated 17.3.1919 executed by some of the vendors. The plaintiffs paternal uncle Rahiman Sahib died about 40 years back prior to the suit and his wife also died subsequently. Therefore, the father of the plaintiffs became solely entitled to the property and patta was also transferred in his name and he was paying the land revenue and after his death about 25 years ago the plaintiffs became exclusively entitled to the suit property and since then they have continued to be in possession. Patta has also been transferred in the name of the plaintiffs and they have been paying the land revenue therefor.
3. While they were in possession and enjoyment of the property, one Vijayraghavalu Naidu taking advantage of the mistake in the sale deed dated 5.5.1922, took a sale from one Vridambal, who was a member of the family of the original owners, as though the said Vridambal had title to the suit property, and subsequently Vijayaraghavalu Naidu appears to have settled the property in favour of Jayalakshmi ammal. Later claiming to be the owner of the Western 411/2 cents in the suit property, she has filed O.S.No. 978 of 1974 on the file of the court of the District Munsif, Vridhachalam against the first plaintiff and the first plaintiff contested the suit claiming that the description of the property in the earlier sale deed was due to clerical mistake and that what was purchased by his father was only the suit property. Though the suit was decided against him, the first plaintiff preferred an appeal in A.S.No. 9 of 1977 on the file of Sub Court, Chidambaram and the appeal was allowed in his favour by judgment dated 14.3.1978. Therefore, according to the plaintiffs, it was finally decided that what was really purchased under the Sale deed of the year 1922 was only the suit property. While so, the defendants had claimed that the property belonged to the Muslim community, questioned the right of the plaintiff and hence the present suit. According to the plaintiffs, it was not correct that the third defendant had been elected as Nattanmaikkar of the Muslim Community and the fourth defendant was elected as Muthawallli of the Muslim Community. Even if they had been elected as such that will not give them any right over the property which exclusively belongs to the plaintiffs. According to the plaintiffs, there were 10 Samadhis on the western portion of the suit property and on the eastern portion of the property there were thatched huts and the plaintiffs have rented out the sheds. The plaintiffs have given permission to some of the Muslim public to bury their dead. But what was given was only a licence and as such the members of the Muslim community had no exclusive right to bury their dead in the suit property. However, on 28.2.1979 the defendants and their henchmen have entered the property and cut and removed about 20 trees in the suit property. Hence, the suit.
4. The suit claims were resisted by the first defendant and in his written statement, it was contended that the claim of the plaintiffs that there was a mistake in the description of the property in the original title deed, was not correct, The claim of the plaintiffs as owners of the property was also denied. According to the first defendant, the western half of the property was called as Kabarstn and there was a burial ground. Several bodies of Muslims have been buried and the said western half was being used as Kabarstan. The very admission and conduct of the first plaintiff will prove that the western half was burial ground. Therefore, the plaintiffs were estopped from claiming title to the western half. With reference to the eastern half also the first defendant contended that the suit property was used as Idh Gahana for Muslims for about 50 years and it was not the private property of the plaintiffs. According to the defendants, the first plaintiff was a Nattanmaikar of the Muslim Community and only in such a capacity he was looking after the property. The hotel and huts were leased out by the plaintiffs only in the said capacity and not in his individual capacity. It is also stated that the first plaintiff was not managing the property properly and amounts were collected from the public and it was spent for the expenses with regard to the litigations. The allegation regarding cutting and removal of the trees was also denied by the first defendant.
5. The fourth defendant filed a separate written statement and he also contended that the suit property was not the private property of the plaintiffs. According to him, the entire suit property belonged to the Muslim community of Kurinjipadi.
6. Subsequently, additional written Statement was also filed by the defendants reiterating that western half of the suit property was used by the members of the Muslim community as a matter of right as a burial ground of their community.
7. In the reply statement filed by the plaintiffs, the claim that the western portion of the property was used as Kabarsthan was denied. The plaintiffs also denied the allegation that eastern side of the suit property was used as a place of worship.
8. On the basis of the said pleadings and evidence both oral and documentary, the trial court upheld the claim of the plaintiffs and held that there was evidence to show that the plaintiffs were the absolute owners of the entire extent of the property. With the result, the suit was decreed as prayed for. However, on appeal, the learned appellate judge while confirming the findings of the trial court, with reference to the title of the plaintiffs, but with reference to the eastern portion of the property, however, held that the western portion of the property was being used as a common burial ground for Muslim community and that as such the plaintiffs were not entitled for a declaration of their title with reference to the western portion of the suit property. With the result, the appeal was partly allowed and as against the disallowed portion the present second appeal has been filed by the plaintiffs.
9. A memorandum of cross-appeal has been filed by the defendants with reference to the eastern portion of the property which has been declared by the courts below in favour of the plaintiffs.
10. Learned Counsel for the appellants mainly contends that there has been no dedication of the property namely, the western half of the property specifically in favour of the Muslim community and that it was only bodies of dead persons belonging to the families of the plaintiffs which were being buried and that other Muslims were burying the dead bodies only on their express permission and that as such the conclusions of the appellate court that the property had become a wakf property cannot be accepted. In this context learned Counsel for the appellant relies on a judgment of the learned Single Judge of this Court reported in A. Rahiman Sahib Chondry v. Murugappa Naicker A.I.R. 1924 Mad. 577. In that judgment the learned single Judge has held that the mere fact that a Muhammadan chooses to bury a body of another Muhammadan would not make that property wakf property and that there must be some public user or public dedication. Learned Counsel would also refer to the decision of the Privy Council reported in Lakshmidhar Misra v. Rangalal, A.I.R. 1950 P.C. 56, in support of his proposition that the existence of a custom was mixed question of law and fact. Therefore, the said issue liable to be agitated in the second appeal under Section 100,C.P.C.
11. It is true that a dispute over the customary right would be a mixed question of law and fact and can be agitated in a second appeal under Section 100, C.P.C. But the requirement that there should be a dedication in favour of the community in general in order to establish a customary right in favour of the Muslim public in order to create a wakf, has been subsequently considered by the Privy Council as well as other courts which have positively held that specific dedication is not necessary and that long user of a property for a considerable number of years was sufficient to justify as a presumption of dedication in favour of the community. In this context learned Counsel for the respondents has relied on judgment of a Division Bench of Oudh Court reported in Gadir Sakhsh v. Saddullah A.I.R. 1938 Oudh 77. In that case, the Division Bench has held that the question whether a plot of land was a grave-yard or not was primarily a question of fact. But in cases where a grave yard had existed from time immoral or for a very long time, there can be a presumption that the land was used as grave yard even though number of specific dedication or that it has not been entered as a grave yard in any of the village papers.
12. Even subsequent to the decision of the learned single judge reported in Rahiman Sahib Chowdary v. Marudappa Naicker A.I.R. 1924 Mad. 577 cited above, many judgments have been rendered by the Privy Council as well as other High Courts holding the contra view, In the very judgment relied on by the learned Counsel for the appellants for the proposition that the question of custom would be a mixed question of law and fact and namely, Lakshimidhar Misra v. Ratanlal A.I.R. 1950 P.C. 56, the Privy Council has positively held that dedication was known only to English Law as something equivalent to an irrevocable licence granted by the owner for the use of the public. But a customary right can always be established by proper evidence to the effect that the said lands were used for generation as cremation or burial ground. A Division Bench of Andhra Pradesh Court in its judgment reported in Gulam Mohideen v. Abdul Majid A.I.R. 1957 A.P. 941, has held that though there may be no specific or public dedication, the user of the land as a Muhammadan burial ground for a long time would by itself make the land a wakf land. In the absence of direct evidence of dedication it was open to the parties to establish the right by long user, If dedication was proved or admitted, then mere non-user for some years may not detract from the character of the grave yard as a wakf. But when the evidence of user assumes importance and the continued user for a long time was sufficient to interfere in favour of a Wakf. Therefore, there is overwhelming authority to support the proposition that there need not be specific dedication in favour of the Muslim community in general in order to prove as to whether the property is a wakf property or not.
13. In the present case, the appellate court has a question of fact, has come to the conclusion that there was overwhelming evidence to show that the western portion of the property had been treated as a common property of the Muslim Community and there is no reason to disagree with the said finding of fact. In fact a perusal of the evidence on the side of the plaintiffs itself would show that even strangers apart from the family of the plaintiffs, were burying the dead bodies. Even though it is claimed that it was only by permission, it is admitted by P. W. 1 that there was nothing in writing to show that such burials were effected only by permission. Therefore, there is absolutely no grounds to interfere with the findings of facts recorded by the appellate court to the effect that the western portion of the suit property was a wakf property and that therefore, the appellants were not entitled to a declaration with reference to the said portion of the property. Therefore, there is no ground to interfere with the judgment of the appellate court in the said context.
14. Learned Counsel for the respondents in order to sustain the cross-objections filed by the respondents, contended that the provision of Order 1, Rule 8, C.P.C. has not been followed and that only certain named individuals were being impleaded as defendants and that the entire community ought to have been impleaded as defendants in the suit. In the present case, the allegations having been made by the plaintiffs with reference to certain named individuals there was no obligation on the part of the plaintiffs to have resorted to Order 1, Rule 8. Hence, this objection on behalf of the respondents cannot be sustained.
15. It is also contended that Section 87 of the Wakf Act, 1995 would be a bar for the continuance of the present second appeal. Section 87 of the Wakf Act, 1995 stipulates that notwithstanding anything contained in any other law, no suit, appeal or other legal proceedings for the enforcement of any right on behalf of any wakf which has not been registered in accordance with the provisions of the Act, shall be instituted or commenced or heard, tried or decided by any court after the commencement of the said Act. Therefore, on the strength of the said provisions, it is contended that the wakf as claimed by the defendants, not having been registered, according to the learned Counsel for the appellants would be a bar for the defendants to resist the suit as filed by the plaintiffs. I am afraid that this objection cannot be sustained. The said bar is directed only against the suit being instituted by wakf which is unregistered. The said provision cannot be a bar for a group of individuals to resist any suit by persons claiming rights over wakf property. In other words, the said provision cannot be a bar for a member of the Muslim community or a representative of the Muslim community or of a wakf to defend the rights on behalf of the wakf when a suit is filed against the property belonging to the wakf. If the contention of the learned Counsel for the appellants has to be accepted, then it would lend to the interpretation that for the mere filing of a suit by any party as against an unregistered wakf, the wakf would be disentitled to defend the suit claims. Such a construction is not called for. The Parliament would not have intended to create such an unfair situation as against public properties. Therefore, 1 am unable to sustain the objections so raised.
16. However, it is rightly pointed out by learned Counsel for the appellants that the lower appellate court has merely stated that the western portion of the property was treated as wakf property and with the result the claim of the plaintiff has been rejected without any proper identification of the actual extent of the portion of the property which was being actually utilised as burial ground. In this context, it is seen that both the courts below have not discussed and both sides have also not attempted to adduce any proper evidence to exactly localise the extent of the property, held as burial ground. The decree as granted by the appellate court stating that the western portion of the suit property was wakf property is very vague and cannot be sustained in the absence of specification of the exact extent and the location of the property. Therefore, in this context in the interest of justice, it is necessary to remand the appeal for re-consideration for deciding the said issue alone. It is not necessary that the consideration of the issue should be remitted to the trial court and in order to avoid further delay, it will be sufficient to remit the matter to the lower appellate court and the lower appellate court may also direct the appointment of a Commissioner in this context and also permit both the parties to adduce evidence only in the context of locating the exact extent of the property treated as burial ground. After taking such evidence, the lower appellate court may give a definite finding as regards the exact extent which is to be excluded from the decree granted in favour of the plaintiffs.
17. With the result, the above second appeal is allowed and remanded to the lower appellate court. The lower appellate court is directed to take up the appeal on its file and to dispose of the appeal as indicated above within three months from the date of receipt of a copy of the judgment along with the records. No costs.