RSA No.3031 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3031 of 1987 Date of Decision: 23.07.2010. Mohd. Din .……Appellant Versus Hazi Suleman and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Amarjit Markan, Advocate for the appellant. Mr. G. N. Malik, Advocate for the respondent No.1 to 8. L. N. MITTAL, J (ORAL) Plaintiff-Mohd. Din, who was successful in the trial Court, but has been non-suited by the lower appellate Court, has filed the instant second appeal. Plaintiff-appellant alleged that he is owner to the extent of half share and proforma-defendant Nos.9 to 12 are owners to the extent of other half share in the suit land measuring 1 kanal 14 marlas and the suit land is their private personal grave yard, but defendant Nos.1 to 8 intended to occupy the suit land and to raise construction thereon forcibly, without any right to do so. Plaintiff accordingly claimed permanent injunction restraining defendant Nos.1 to 8 from taking possession of the suit land. Defendant Nos.1 to 8 contested the suit and inter alia pleaded that suit land is Gair Mumkin Kabrishtan being used by Muslims as such. It is owned and possessed by God. Plaintiff and proforma-defendant Nos.9 to 12 are not owners thereof. Learned Sub-Judge Ist Class, Malerkotla vide judgment RSA No.3031 of 1987 -2- and decree dated 09.02.1984 decreed the plaintiff's suit. However, first appeal preferred by defendant Nos.1 to 8 has been allowed by learned Additional District Judge, Sangrur vide judgment and decree dated 31.08.1987 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has preferred the instant second appeal. Substantial questions of law allegedly arising in the instant second appeal, filed today in Court by counsel for the appellant, are taken on record, subject to all just exceptions. Copy supplied to the opposite counsel. I have heard learned counsel for the parties and perused the case file. According to the appellant, following substantial questions of law arise for determination in the instant second appeal:- “ (i) Whether the findings contained in the impugned judgment are perverse, by holding that the land owned by plaintiff/performa defendants, is being used as Public Grave Yard? (ii) Whether the suit land owned by the plaintiff and performa defendants in the revenue records, can be held as public grave yard on the basis of alleged entries as G.M. Kabristhan?” Learned counsel for the appellant contended that the suit is owned by plaintiff and proforma-defendant Nos.9 to 12 and it is their private grave yard and, therefore, defendant Nos.1 to 8 have no right, title or interest therein. On the other hand, learned counsel for respondent Nos.1 to 8 contended that suit land is being used as public grave yard by all the Muslims and it is not a private grave yard RSA No.3031 of 1987 -3- of plaintiff and proforma-defendant Nos.9 to 12. I have carefully considered the rival contentions. Perusal of the trial Court record reveals that in various jamabandis, plaintiff is recorded to be owner of half share of the suit land whereas Abdula and Ramzan predecessors of proforma-defendant Nos.9 to 12 are recorded to be owners of the remaining half share of the suit land. In the column of occupation, the suit land is recorded to be in possession of Ahal-e-Islam i.e God. In column Nos.7 regarding nature of land, it is recorded to be Gair Mumkin Kabristhan. Witnesses of defendants have stated that the suit land is used as public grave yard by all the Muslims. Even plaintiff's witnesses i.e Ali Mohd. PW-1, Ramzan PW-2 and Babu PW-5 have stated that dead bodies of other Muslims, besides the dead bodies of families of plaintiff and proforma-defendant Nos.9 to 12, are also being buried in the suit land. From the oral and documentary evidence on record, it is established that plaintiff and proforma-defendant Nos.9 to 12 are owners of the suit land as pleaded by the plaintiff. However, the suit land is not being used as their private grave yard, but is being used as public grave yard for burying the dead bodies of other Muslims as well. Consequently, defendant Nos.1 to 8 have no right to take possession of the suit land. However, the suit land is being used as public grave yard and is not in exclusive possession of plaintiff and proforma-defendant Nos.9 to 12. Substantial questions of law arising in the instant second appeal are answered accordingly. Consequently, judgments and decrees of the Courts below are modified to the extent that defendant Nos.1 to 8 are restrained from RSA No.3031 of 1987 -4- taking possession of the suit land, but the same is being used as public grave yard by the Muslims including defendant Nos.1 to 8. The appeal stands disposed of accordingly. ( L. N. MITTAL ) JUDGE 23.07.2010. A. Kaundal