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Hakimuddin v. Shabbir - SECOND APPEAL No. 1446 of 1984  RD-AH 11581 (10 July 2007)
Second Appeal No.1446 of 1984
Hakimuddin and others vs. Shabbir and another.
Hon'ble Tarun Agarwala, J.
Heard Shri A.K. Tripathi, the learned counsel holding the brief of Sri A.D. Prabhakar, the learned counsel for the plaintiffs/appellants and Sri M.A. Zaidi, the learned counsel for the defendants/respondents.
The plaintiffs instituted a suit for a permanent injunction against the defendants from cutting the trees which were located in the graveyard. The suit was filed in a representative capacity. The plaintiffs contended that they are the residents of village Nasirpur which is adjoining to the village of the defendants, known as, Sherpur in district Bijnor and that there was a common graveyard for the residents of both the villages. The plaintiffs alleged that there are a large number of trees existing on the graveyard and that the defendants were illegally cutting the trees for monetary gains and that they had no right to cut the trees.
The defendants resisted the suit and submitted that the plaintiffs had no locus standi to file the suit. The graveyard was located in village Sherpur and that the plaintiffs, who belonged to village Nasirpur, had no concern with the said village or its graveyard. The defendants further submitted that they did not cut any tree and that a branch of a tree had fallen down on account of high winds which the committee had disposed it off and that the money was utilised for the maintenance of the graveyard. The defendants further alleged that there is a committee which was looking after the graveyard and that an application had been forwarded to the relevant authorities for its registration. The defendants further contended that the suit was also barred by the principles of res judicata, inasmuch as, the plaintiffs had earlier filed original suit No.49 of 1981 which was dismissed and consequently the second suit could not be filed without seeking previous permission.
The trial court, after framing the issues, and after considering the evidence brought on the record, decreed the suit holding that the graveyard was located in village Sherpur and was situated between the two villages, Nasirpur and Sherpur and that the residents of both the villages were utilising it from time immemorial to bury their dead. The trial court further found that the defendants had illegally cut the trees which was worth Rs.100/-, and therefore, decreed the suit restraining the defendants from cutting the trees located in the graveyard and also awarded cost of Rs.100/- to the plaintiffs. The trial court further found that the suit was not barred by the principle of
res judicata since liberty was granted to the plaintiffs to file the suit afresh.
Aggrieved, the defendants filed an appeal which was allowed and the decree of the trial court was set aside and the suit was dismissed. The lower appellate court held that the suit was barred by the principles of res judicata, since cost imposed by the trial court in the earlier suit was not paid by the plaintiffs. The lower appellate court further found that the plaintiff had no right to maintain the suit since the graveyard was located in village Sherpur and that the plaintiffs were not the residents of that village. The lower appellate court further found that the residents of both the villages, namely, Nasirpur and Sherpur were utilising the graveyard for the burial of their dead, and therefore, held that the graveyard was a public graveyard in character and that the residents of village Nasirpur were only given permission to bury their dead, and had no right of ownership of the graveyard nor had any right on the trees standing on the graveyard, and therefore, the defendants had a right to manage and dispose of the trees.
Aggrieved by the judgment of the lower appellate court, the plaintiffs filed the present second appeal which was admitted on the following substantial question of law.
"Whether on the findings recorded by the lower appellate court with regard to the nature of the grave-yard on the land in dispute, the plaintiffs-appellants were entitled to a decree restraining the respondents from cutting away any of the green trees standing on the aforesaid land.
The learned counsel for the appellants submitted that a categorical finding has been given that the graveyard was utilised by both the residents of village Nasirpur and Sherpur, and therefore, the graveyard partakes the character of a public graveyard. Consequently the graveyard could not become the personal property of the residents of the village Sherpur,ie., the defendants. The plaintiff had a right on the said graveyard as their near and dear ones were buried in the graveyard. The learned counsel for the appellant further submitted that once a finding had been given by the lower appellate court that the graveyard was a public graveyard, the lower appellate court was not justified in holding that the plaintiffs had no locus standi to file the suit since the defendants themselves were not the owners of the graveyard.
On the other hand, the learned counsel for the defendants submitted that since the graveyard was located in their village Sherpur, the residents of village Sherpur alone had a right to maintain and manage the graveyard and, in this regard, the residents of village Sherpur had formed a committee and had applied for its registration, and therefore, were competent to manage the graveyard and dispose of the existing trees. The learned counsel further submitted that since the cost of the earlier suit had not been paid by the plaintiffs which was a condition precedent, consequently the plaintiffs were not entitled to institute the present suit and therefore the suit was liable to be dismissed, being barred by the principles of res judicata, and was also liable to be dismissed under Order 23 Rule 1 (3) of the C.P.C.
Having given my considerable thought in the matter and after hearing the learned counsels for the parties at length, in my view, the judgment of the lower appellate court cannot be sustained.
In Syed Mohd. Salie Labbai ( Dead) by L. Rs and others vs. Mohd. Hanifa ( Dead) by L. Rs. and others AIR 1976 SC 1569, the Supreme Court explained in detail, as to what would constitute a public graveyard and what would constitute a private graveyard. The Supreme Court held that a private graveyard is confined only to the burial of corpses of the founder, his relations or his descendants and, in such a burial ground, no person other than his family members were permitted to bury their dead. On the other hand, if any member of the public was permitted to be buried in such a graveyard and that this practice grew, the said graveyard would partake the character of a public graveyard and the Muslim public would have right to bury their dead. The Supreme Court held-
" Under the Mohammedan Law the grave-yards may be of two kinds- a family or private grave-yard and a public grave-yard. A grave-yard is a private one which is confined only to the burial of corpses of the founder, his relations or his descendants. In such a burial ground no person who does not belong to the family of the founder is permitted to bury his dead. On the other hand, 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 graveyard has become a public grave-yard where the Mohammedan public will have the right to bury their dead."
From the evidence brought on record, the revenue record indicates that Khasra Nos. 653 and 666 is a graveyard. Even though the revenue record does not indicate it as a public graveyard, nonetheless, there is direct evidence of dedication of the graveyard to the public. It has come on record that from time immemorial, the corpses of both the villages are buried in the said graveyard, and therefore, it can safely be presumed it to be a public graveyard by immemorial user, i.e., where corpse of the members of the Mohammedan community are buried in a particular graveyard for a large number of years without any objection either from the residents of the village Sherpur. The mere fact that permission was required by the residents of village Nasirpur to use the graveyard would not make any difference to the character of the graveyard as a public graveyard.
Once the graveyard is held to be a public graveyard it then vests in the public and constitute a Waqf and could not be divested by non user and would always be so whether it is used or not. Since it is a public graveyard, the graveyard vests in the public, and therefore, no one has a right to cut the trees existing in the graveyard. The defendants alone have no right to manage the property. Nothing has been shown that the defendants committee has been registered with the Waqf Board or they have an indefeasible right to manage the graveyard. In the absence of any evidence, the finding of the lower appellate court that the defendants had a right to manage the graveyard and had a right to cut the existing trees located in the graveyard could not be sustained. The finding of the lower appellate court that since the graveyard was located within the limits of village Sherpur, only the defendants had a right to manage the graveyard and to dispose of the fallen trees or to cut the branches is patently erroneous.
As stated above, once the graveyard vests in the public , it is outside the domain of a particular village. It has come on record that the graveyard is being utilised by the residents of village Nasirpur and Sherpur. Consequently, in the absence of a Waqf Board, the management of the graveyard could not be done by the residents of village Sherpur alone or by the defendants alone. The plaintiffs has a right to object to the cutting and disposal of the trees by the defendants.
The submission of the learned counsel for the appellants that the suit was barred by the principles of res judicata and being barred under Order 23 Rule 1(3) of the Court of Civil Procedure is patently erroneous. The plaintiff had earlier filed suit No.49 of 1981 and had thereafter moved an application No.29 Ga for the withdrawal of the suit with a liberty to file afresh. This application was not opposed by the defendants, and eventually the court allowed the application with costs to the defendants. The submission of the learned counsel for the defendant that since the cost was not paid, the plaintiffs were precluded from instituting the present suit is patently erroneous. The submission that payment of cost was a condition precedent for instituting a second suit is also erroneous. The payment of cost was not a condition precedent for the plaintiff to institute a fresh suit. Further, the cost has not been quantified, and therefore, in the opinion of the court, if for some reason, cost had not been paid by the plaintiffs, it was a mere irregularity and it would not debar the plaintiffs from instituting a second suit. In the present case, even though, cost was imposed, no time limit was framed by the court for the deposit of the cost. Consequently, it cannot be construed that the payment of cost was a condition predecent for filing a fresh suit.
In view of the aforesaid, the question of law as framed by this Court has to be answered in the affirmative. This court holds that once a finding has been given, namely, that the graveyard is a public graveyard, it vests in the public. The plaintiff/appellants were entitled to a decree restraining the defendants from cutting away any of the green trees standing in the graveyard. Consequently, the judgment of the lower appellate court cannot be sustained and is quashed. The appeal is allowed.
Before parting, it is made clear that the decreeing of the suit will not entitle the plaintiff to cut the trees existing in the graveyard or from disposing the fallen trees and branches. It is further directed that till such time a committee is not registered with the Waqf Board, the graveyard would be managed jointly by the residents of village Nasirpur and Sherpur.
In the circumstances of the case, parties will bear their own cost.
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