Syed Mohd. Salie Labbai & Ors Vs. Mohd. Hanifs & Ors [1976] INSC 66 (22 March 1976)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA GOSWAMI, P.K.
CITATION: 1976 AIR 1569 1976 SCR (3) 721 1976 SCC (4) 780
ACT:
Mahommadan Law-Mosque its adjuncts and graveyard, what constitutes dedication to public-Right to officiate as Imam, when recognised.
Muslim Wakfs Act, 1954, s. 55(2), Scope of-Code of Civil Procedure (Act 5 of 1908) s. 11-Res judicata, scope of.
HEADNOTE:
The land in dispute was originally acquired by a Muslim saint, about two hundred years ago. Some years later the predecessors of the respondents, who formed the major section of the Muslims of the village, approached his successor, the ancestor of the appellants and the then owner of the land, and sought his permission for building a mosque on the land as there was no mosque at all in the village.
The predecessors of the respondents executed an agreement in favour of the owner. It recited that, (1) the predecessors of the respondents were constructing a prayer hall on the raised platform belonging to the ancestor of the appellants, with his permission; (2) after completion of the mosque, the predecessors of the respondents will have no claim or right, except the right to worship therein; (3) the only right which they would claim would be the right to worship and to light lamps, while they will be responsible for the maintenance of the mosque; (4) the construction was purely for the purpose of worship; and (5) there shall be a doorway and windows on one side so as to serve as a separate entrance to the mosque in order to constitute it as a separate entity. The mosque was built by the ancestors of the respondents; and thereafter, in course of time, additional constructions which form adjuncts to the mosque, were added. All the adjuncts were built for the purpose of offering prayers in the mosque and by way of a gift to the mosque. The adjacent vacant land was used as a graveyard for the Muslims of the village. Subsequently, the appellants constructed shops on a part of the graveyard, and the respondents, who regarded the constructions desecration of the graveyard, filed a number of suits for the demolition of the shops. The appellants, however, claimed the properties as their private properties, excepting the prayer hall used as a mosque, and even there, they claimed that they had a right to manage it and lead the congregation at prayers. The result of the suits was inconclusive, and as a result of an observation in one of the suits, that the only remedy for the constant quarrels between the two sections of the Muhammadan community is a suit under s. 92, Civil Procedure Code, the respondents filed a suit under the section, in a representative capacity. after obtaining the sanction of the Advocate General. They alleged that the 3 items of property, namely, (1) the burial ground which consisted of two parts, (2) the Dargah over the tomb of the saint who first acquired the property, and (3) the mosque and its adjuncts were all wakf properties of a public and charitable nature dedicated by the predecessor of the appellants, that they were public trusts dedicated to God, and that the appellants, who were de facto managers, were guilty of acts of mismanagement and misfeasance. The respondents prayed for the removal of the appellants and for framing a scheme for administering the trust properties. The trial court dismissed the suit but on appeal. the Court, while dismissing the suit with respect to the Dargah on the ground, that it was the private property of the appellants, decreed it with respect to the mosque and its adjuncts, and the graveyard, and remanded the matter to the trial court for framing a scheme for the administration of those two trust properties.
In appeal to this Court, the appellants contended that.
(1) in the previous judgments between the parties the public character of the properties was negatived and they operated as res judicata; (2) There was no public wakf of the 722 mosque which was only a private or family mosque; that there was no declalration of dedication for the purpose of a mosque, and that the prayers offered in the mosque by the respondents were only by leave and licence of the founder;
(3) the graveyard was also not a public wakf but the family grayeyard of the appellants wherein corpses of other Muslims were allowed to be buried on payment of pit fees and other charges. (4) even if the mosque was a wakf of a public character the appellants had the hereditary right to administer and govern it and so the respondents had no right to dislodge them and ask for the framing of a scheme; (5) the suit was barred by s. 55(2), Muslim Wakfs Act, 1954; and (6) section 92, Civil Procedure Code; has no application as the appellants were not trustees.
Dismissing the appeal,
HELD: (1) The judgments relied upon by the appellants do not operate as res judicata, because, the public character of the wakfs was not in issue in those cases.
[738D] (a) Before a plea of res judicata can be given effect to, the following conditions must be proved:- (i) that the litigating parties are the same;
(ii) that the subject-matter of the suits is identical;
(iii)that the matter was finally decided between the parties; and (iv) that the earlier suit was decided by a court of competent jurisdiction. [732A-733 B] (b) In the present case, the 2nd condition is not satisfied, because, the public character of the mosque was never raised in any of the earlier suits, and consequently, there was no decision or finding upon the public character of the mosque. The only questions that were raised were the questions regard ing the performance of certain religious ceremonies, the question of the right to appoint the Imam, and as to who was to manage the affairs of the mosque. In one suit, the appellants had put forward the claim of being hereditary owners of the mosque, but that was only in a limited sense namely, for the purpose of its management. In another suit, there was a finding that the respondents were debarred from disputing the ownership of the appellants of the mosque, and from asserting that the respondents were anything more than licensees in respect of the mosque. But this observation has to be understood in the light of the pleadings which show that the suit related not to the public nature of the mosque but only to the management thereof.
[733B-C, E-F, 734D-E, 736G 737A, 738D-E] (c) In two suits there was in fact a finding against the appellants, that the mosque was public property and not descendible to the appellants. In one suit, there were observations that the burial ground and other places were the exclusive properties of the appellants but by 'exclusive property' it was never meant that it was the private property of the appellants, but only that the respondents had no interest in it. Even otherwise, as the suit was not for any declaration that the mosque was a public one the observations would only be obiter. [734G, 735F-G, 738B-C] (d) In a criminal revision case before the High Court, the respondents admitted that they would not interfere with the rights of the appellants and the respondents were acquitted thereupon. A perusal of the order shows that the admission was not unqualified but only amounted to this that the respondents would not take the law into their hands, but would take recourse to legal remedies. Even if it is construed as an admission, it was in a criminal case made in terrorem and loses much of its significance. Further since the respondents filed the suit under s. 92, they had not acted against the admission but have availed themselves of a remedy which was open to them under the law. [738G-739B] (e) The earlier judgments between the parties show that it was never disputed even by the appellants that the mosque was a public mosque where prayers were offered by the Mahomedan public. [737A] 723 (2) Since the public character of the mosque was never raised in any suit, the judgments relied upon by the appellants do not establish that the mosque and its adjuncts were not wakfs of a public nature. A consideration of the facts, circumstances and the evidence in the present case, shows that the mosque and its adjuncts constituted wakf properties as a single unit and had been used as such for a long time so as to culminate into a valid and binding public wakf. [738D-E, 746B, 760B] (a) To create a valid dedication of a public mosque, under the Hanafi school of Mahomedan law, the following conditions must be satisfied:-[746B-C] (i) that the founder must declare his intention to dedicate a property for the purpose of a mosque. No. particular form of declaration is necessary. The declaration can be presumed from the conduct of the founder either express or implied. It may be oral or in writing. [750-B, 755A-B] (ii) that the founder must divest himself completely from the ownership of the property, the divestment can be inferred from the fact that he had delivered possession to the Mutawalli or an Imam of the mosque. Even if there is no actual delivery of possession, the mere fact that members of the Mahomedan public are permited to offer prayers with azan and ikamat, shows that the wakf is complete and irrevocable.
It is not necessary for the dedicator of a public mosque that a Muttawali or a Pesh Imam should be appointed. That could be done later by the members of Muslim Community; and (iii) the founder must make some sort of a separate entrance to the mosque which may be used by the public to enter the mosque. [747A, 750B-D] As regards the adjuncts the law is that where a mosque is built or dedicated for the public, if any additions or alterations, either structural or otherwise, are made which are incidental to the offering of prayers or for other religious purposes, these constructions would be deemed to be accretions to the mosque and the mosque and such adjuncts will form one single unit so as to be a part of the mosque.
[750D-E] Jewan Doss Sahoo v. Shah Kubeer-ood-Deen, 2 M.I.A. 390;
Adam Sheik v. Isha Sheik, I.C.W.N. 76; Saiyad Maher Husein v. Jaji Alimohomed 36 B.L.R. 526; Akbarally v. Mahomedally;
I.L.R. 57 Bom. 551; Miru v. Ramgopal; A.I.R. 1935 All. 891;
Abdul Rahim Khan v. Fakir Mohammad Shah, AIR 1946 Nag 401;
Masjid Shahid Ganj Mosque v. Shoromani Gurdwara Prabandhak Committee, Amritsar; L.R. 67 I.A. 251; Musaheb Khan v. Raj Kummar Bakshi, A.I.R. 1938 Oudh 238; Maula Baksh v.
Amiruddin; I.L.R. I Lah. 317; Mohammad Shah Shah v. Fazihuddin Ansari, A.I.R. 1956 S.C. 713 referred to.
(b) So far as the mosque and its adjuncts in the present case are concerned, they consist of, (i) the main prayer hall, (ii) a covered platform, where, according to the respondents, prayers were offered by the members of the Mahomedan public when the space in the main mosque was not sufficient to accommodate a big crowd, and (iii) a small chamber in the nature of a store room adjacent to the mosque, a thatched shed, a pond into which water is pumped by a pump set which had been installed by the Mohomedans of the village, a latrine to the south of the burial ground, and a minaret fitted with a loud speaker. On special auspicous occasions, the entire Muslim community flocks to the mosque for the purpose of prayers, because, offering prayers on such days is, according to Islamic tenets, extremely auspicious & highly efficacious. Before a Mussalman offers his prayers he has to do wazoo or wash his hands and feet in the prescribed manner and for this purpose arrangements are made in every mosque. Accordingly a tank or hauz where water is pumped for the wazoo was provided. As a large number of Muslims assembled on special occasions, the entire space-including the mosque, the raised platform and a corridor-was used for the purpose of offering prayers. The store room was used for keeping the mats which were meant to be used at the time of offering prayers and the loud speaker for reciting Azan and for delivery of Khutbas or religious sermons. Thus, the constructions were used for religious purposes incidental to the offering of prayers and have become accretions to the mosque so as to constitute one single entity. [754D-H, 758G-759C] 724 (c) In the case of a mosque, the founder's permission or the bare act of allowing the members of the Mahomedan public to offer prayers amounts to a complete delivery of possession. The agreement in favour of the ancestor of the appellants clearly shows the intention of the founder and on a proper interpretation of its terms, amounts to a permanent and irrevocable dedication to God constituting a valid public wakf. The owner of the land had given his tacit consent to all the terms of the agreement and in the eye of the law, he being a party to the agreement, he allowed the mosque to be constructed not for the private members of his family but for the worship of God by the entire Mahomedan public. The document thus unmistakably evidences the clear intention of the founder to consecrate the mosque for public worship and amounts to a declaration of a public wakf. By providing a separate entrance, the owner agreed to separate the mosque from the rest of the property namely the Dargah and the compound; and by allowing the entire Mahomedan Community of the village to worship in the mosque and to perform other ceremonies, the owner of the land gave delivery of possession to the mosque. [756B] (d) the owner, being a saint himself, unequivocally and categorically divested himself of the entire interest in the mosque and made it a public wakf. A place may be dedicated as a mosque or masjid without there being any building. But, since the building in the nature of a mosque was built, a clear case of dedication has been made out. Once the mosque was constructed it stood dedicated to God and all the right, title and interest of the owner got completely extinguished about a century and a half ago and since then, the mosque had been used constantly for the purpose of offering prayers. [756F-H] (e) Once there was a complete dedication to the mosque as a place of public worship any reservation or condition imposed by the owner would be deemed to be void and would have to be ignored. Therefore, it could not be contended by the appellants that under the agreement, the respondents had stipulated not to claim any right or interest in the mosque, and hence, cannot claim the mosque as wakf property. Reading the statements in the agreement as a whole what the respondents' ancestors meant was that the mosque would undoubtedly be a public wakf meant for the purpose of public worship and that they would not interfere with its management. But that did not mean that if the appellants, who are the founder's descendants, indulged in mismanagement of the mosque, the respondents, as members of the Mahomedan Community, could not take suitable action under law against them. [757A-D] (f) Further, under the Muslim law once the dedication was complete, the property passed from the owner to God and it never returns to the owner and therefore, the question of the mosque being private can never arise. The very concept of a private mosque is wholly foreign to the dedication of a mosque for a public purpose under Muslim Law. Under that system of law, once the founder dedicates a particular property for the purpose of a public mosque, no Muslim can be denied the right to offer prayers in the mosque to whatever section or creed he may belong, and that is why the law is so strict that the moment even a single person is allowed to offer his prayers in a mosque it becomes dedicated to the public, Also, any adjuncts to a mosque, which are also used for religious purposes, become as much a part of the mosque as the mosque itself. [734E-F; 735C-D;
736A-B; 746H] (g) There is not an iota of evidence to prove the case of the appellants that the adjuncts were their private property. Where any construction is made for the purpose of the mosque or for its benefit or by way of gift to the mosque, that also becomes a public wakf. The question of who made the construction is wholly irrelevant, because, all constructions made by any person, used for religious purposes incidental to offering of prayers in the mosque, would be deemed to be accretions to the mosque itself. Even the appellants' witnesses admitted the nature and character of the various adjuncts to the mosque. [757H; 758F; 759B-D] (h) The argument that there was no formal dedication is unsound. The document recites that the property being built on the land of the founder was a public mosque to be used for the public purpose of offering prayers. Even otherwise, the act of permitting the Mahomedans of the village to build a mosque, itself amounts to a complee dedication or a declaration that the mosque is a 725 public property. Further, by giving delivery of possession of the site for the purpose of building a mosque and by allowing prayers to be offered in the mosque, the founder made a complete public wakf in the shape of a mosque. [759D- F] Zafer Hussain v. Mohd. Ghias-ud-din, A.I.R. 1937 Lah.
552; Nawab Zain Yar Jung v. The Director of Endowments [1963] 1 S.C.R. 469 and Jawaharbeg v. Abdul Aziz A.I.R. 1956 Nag. 257 distinguished.
(3) (a) Under Mahomedan law graveyards may be of two kinds, namely, family or private graveyards and public graveyards. The rules for determining whether a graveyard is a public or private one are. [742E] (i) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user, that is, where corpses of the members of the Mahomadan community have been buried in a particular graveyard for a large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all; [744B-C] (ii) that if the graveyard is a private or family graveyard, then, it should contain only the graves of the founder, of the members of his family or of his descendants and of no others. Once even in a family graveyard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public graveyard; [744C-D] (iii) that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan community, had buried their corpses from time to time in the graveyard.
Once this is proved, the Court will presume that the graveyard is a public one; and once it is held to be a public graveyard it vests in the public and constitutes a wakf and it cannot be divested by non user; and [744A, E] (iv) that where a burial ground is mentioned as a public graveyard either in revenue or historical papers, that would be conclusive proof to show the public character of the graveyard. [744F] Ballabh Das v. Nur Mohammad, A.I.R. 1936 P.C. 83, Imam Baksh v. Mander Narsingh Puri, A.I.R. 1938 Lah. 246, Sheorai Chamar v. Mudeer Khan, (1934) A.L.J. 809, Qadir Baksh v.
Saddullah, A.I.R. 1938 Oudh 77, and Mohammad Kassam v. Abdul Gafoor, A.I.R. 1964 M.P. 227 referred to.
(b) The position regarding the graveyard, in the present case, is that even some of the judgments relied upon by the appellants have affirmed its public character.
Further, the judgments relied upon by the respondents show that the property had been dedicated as a public burial ground. These judgments operate as res-judicata against the appellants so far as the graveyard is Concerned. All the attempts by the appellans to get a declaration from the courts that the graveyard was a private one failed and all the courts have consistently held that both parts of the burial ground were a public graveyard where corpses of the Mahomadan community of the village were buried. The appellants, however, being the descendants of the founder, had established a right by usage to charge pit fees and other charges. But the mere fact that the appellants used to realise pit fees or other incidental charges would not detact from the nature of the dedication. The appellants themselves had filed an application before the Municipal Council for registering the burial ground as a graveyard, showing that the appellants themselves treated the burial ground as a public graveyard and had it so registered with the Municipal Council. [738D; 739C-D; 742B-C; 744F-745B] (c) Even assuming that the judgments do not operate as res judicata, there is overwhelming oral and documentary evidence to prove that it is a public graveyard. [745F-G] (d) There is no legal evidence to prove that the western part, adjacent to the Dargah, should be held to be a private burial ground belonging to the family 726 of the appellants. Both parts constitute one single burial ground and there is nothing to show that in burying the dead any distinction had been made between the two parts. [745H] (4) There is overwhelming evidence on record to show that the appellants were guilty of grave mismanagement, and therfore a clear case for formulating a scheme under s. 92, C.P.C., has been made out by the respondents. Even the trial court found acts of mismanagement but explained away the acts of misfeasance on the ground that the respondents undertook not to interfere with the management or ask for accounts and held the appellants' negligence was not actionable. But in view of the finding that the mosque and its adjuncts and the burial ground are public wakfs, the question of negligence assumes a new complexion. Apart from acts of mismanagement, the graveyard was not properly managed or maintained, the boundary wall was broken allowing cattle to enter and desecrate the graveyard, even the mosque was in a state of disrepair, and the appellants had constructed shops on a part of the graveyard and in spite of several decrees directing their demolition, the appellants had disobeyed the orders of the Courts. [761G-762B] (5) Section 55(2) of the Wakfs Act provides that the suit for the reliefs in s. 55(1) shall not be instituted without the consent of the Board. But no Board had been constituted at the time the suit was filed. Therefore, the provisions of s. 55(2) are not at all attracted and were not capable of being acted upon. Hence, the non-compliance with its requirements would not bar the maintainability of the suit. [760E] (6) Section 92, C.P.C., is clearly applicable to the case.
Section 92 applies only when there is any alleged breach of any express or constructive trust created for a public charitable, or religious, purpose. It also applies where the directions of the Court are necessary for the administration of such public trust. In the instant case the appellants have been looking after the properties as de- facto managers, either as Pesh Imams or otherwise, and have been enjoying the usufruct thereof. Therefore, they are trustees de son tort and the mere fact that they put forward their own title to the properties would not make them trespassers. [760G-H] Mahomed Shirazi v. Province of Bengal, I.L.R. [1942] 1 Cal. 211, Ramdas Bhagat v. Krishna Prasad, A.I.R. 1940 Pat.
425 approved.
But the scheme to be framed will be confined to the mosque and its adjuncts and to the burial ground and not to the Dargah, which has been held to be private property of the appellants. [762B-C] The evidence also shows that the appellants were acting as Imams, although not for a continuous period. There is no clear evidence of any usage or custom by which the right to act as Imam is hereditary. The question of the right to officiate in a public mosque, has to be decided according to the principles of Muslim Law and usage. Once a mosque is held to be a public mosque Muslim Law does not favour the right of a person to officiate as Imam to be hereditary in the absence of a custom or usage to the contrary. An Imam must possess certain essential virtues before he can claim to lead the congregations at prayers. The property having been dedicated to God, it is not open to the founder or his descendants to interfere with the performance of public prayers. But, since the appellants were the descendants of the founder and under the agreement the respondents undertook not to claim any right in the mosque, although it would not act as an estoppel, the court may, at the time of framing the scheme, consider the desirability of associating some of the appellants with the framing of the scheme or even appoint one of them, if suitable, on terms, to look after the properties subject to the primary consideration of the welfare of the wakf properties. In case none of the appellants is suitable, the Court may withhold the right from the appellants and act as it deems fit in the interests of the Wakf properties. [736C; 737B-C; 762C-F]
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1223- 1224 and 2026 of 1968.
From the Judgment and Decree dated 28-10-66 of the Madras High Court in Appeal Nos. 227/60, 427/61 and 227/60 respectively.
727 T. S. Krishnamurthy yer, K. Jayaram and R. Chandrasekar for Appellants in C.A. Nos. 1223-1224/68 and for Respondents in C.A. 2026/68. A. K. Sen, A. V. Rangam and A. Subhashini for Respondents in CAs. 1223-1224/68 and for Appellants in C.A. 2026/68.
The Judgment of the Court was delivered by FAZAL ALI, J.-These appeals, by certificate granted by the High Court, arise out of a common judgment and will be dealt with by one judgment. The appeals have had a chequered career resulting from a highly contested litigation spreading over a century and a half. A review of the historical background of the case reveals a rather sad story and an unfortunate saga of a perpetual strife and struggle, disputes and differences between the two sections of the Muslim community of village Vijayapuram (situated in Tiruvarur District in the State of Madras) setting up diverse rights and rival claims over the property which was essentially a religious property originating from a fountain of purity flowing from the life and teachings of a celebrated saint who was the original founder of the property. Property essentially directed to God appears to have been used for mundane purposes which evoked loud protests from another section of the Mahomedan community who wanted to protect the public character of the trust property and this has led to several suits in various courts.
The most unfortunate part of the drama long in process is that the Courts before whom the disputes came up for decision handed down judgments which were not strictly in accorance with the shariat and the essential tenets of the Mahommadan Law which encouraged the parties to plunge themselves into a long drawn and unnecessary litigation, until the High Court of Madras in one of the litigations had to point out that the only remedy to put an end to the disputes was to invoke the provisions of s. 92 of the Code of Civil Procedure and this is what appears to have been done in the action out of which these appeals arise.
With this pragmatic preface we now proceed to consider the facts of the case which are by no means short and simple, but present highly complicated and complex features.
It appears that some time towards the beginning of the 18th Century Syed Sultan Makhdoom Sahib a Sufi saint was residing at Vijayapuram who by his pious and saintly life attracted disciples not only belonging to he Mahomedan community but also some non-Muslims of that village. The saint was held in great respect and reveronce by the Hindus and Muslims alike which is evidenced by the fact of a sale deed Ext. B-1 dated May 12, 1730 which forms the starting point of the existence of the properties in suit which have been the subject-matter of such a long drawn litigation. Exhibit B-1 shows that a part of the site where the properties in dispute are situated and which was a punja land was sold to the saint Syed Sultan Magdoom Sahib by Thirmalai Kolandai Pillai who was a resident of village Vijayapuram. The sale deed conferred absolute rights on the saint with powers to alienate by way of gift, exchange and sale etc. The sale deed also mentioned that there were no encumbrances in respect of the land, and if any were found, the vendor would discharge the 728 same. The saint died and about sixty years later another sale deed was executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who appears to be a descendant of the saint and an ancestor of the Labbais who are the defendants in the present suit. This sale deed also appears to be in respect of the land which forms part of the disputed properties. The sale deed was executed on May 22, 1797. This sale deed (Ext.
B-2) gives an indication that it consisted of lands and gardens and could be used a grave-yard also. Thus the properties in dispute are situated on the lands sold to the ancestors of the Labbais by the two sale deeds referred to above. It may be pertinent to note here that in the second sale deed Rowther Syed Uddin who is ancestor of one of the plaintiffs was a witness. In course of time the saint and the descendants were buried on the lands in dispute and a Dargah was set up which was managed by the descendants of the saint. Several years later, the Mahomedans of the village realised the necessity of having a mosque as no mosque existed in the village and inspired by this laudable objective, the Rowthers approached Masthan Ali Khader Sahib for permission to build a mosque on a part of the land in dispute. The permission having been granted, an agreement was excuted in favour of Masthan Ali Khader Sahib which is Ext. B. 4 and forms the sheet-anchor of the dedication said to have been made by Masthan Ali Khader Sahib for the purpose of a mosque. Thereafter in course of time certain additional constructions in the shape of a platform, few rooms, a water tank, which form adjuncts to the mosque, were added obviously without any objection from the Labbais. The vacant land appears to have been used as a grave-yard where members of the Muslim community buried their dead as a matter of right on payment of certain fees or charges to the defendants or their ancestors. Subsequently the defendants constructed a few shops on a part of the grave-yard which alienated the sympathies of the Muslims particularly the Rowther community who regarded the construction of the shops as desecration of the grave-yard and accordingly a number of suits were filed for demolition of the shops. The defendants, however, claimed the entire properties as their private properties excepting the prayer hall which was admittedly used as a mosque. There also the defendants claimed that they had a right to manage the same and to lead the congregation at prayers. The present suit has been filed by the Rowthers who were the other section of the Muslim community and whose ancestors are alleged to have built the mosque and other constructions with the previous permission of the ancestors of the defendants. This suit was brought in a representative capacity under O.1 r. 8 Code of Civil Procedure after obtaining the sanction of the Advocate General under s. 92 of the Code of Civil Procedure .
According to the allegations made by the plaintiffs, there were three types of properties which were wakf properties of a public and charitable nature dedicated by the ancestors of the defendants. These properties consisted of :
(1) a huge vacant piece of land consisting of two parts which is popularly known as burial-ground.
On the western part of the gurial-ground some shops had been constructed by the defendants and all attempts made by the plaintiffs or their ancestors to get the 729 the plaintiffs or their ancestors to get the shops demolished had so far failed;
(2) towards the western portion of the grave-yard there is a tomb of the saint Syed Sultan Makhdoom Sahib over which a Dargah has been built;
(3) a prayer hall adjacent to the Dargah which is known as the mosque or Pallivasal. There is also a covered platform, a pond and a thatched shed which appear to be adjuncts to the mosque.
According to the plaintiffs all the three properties were public trusts dedicated to God and the defendants could not claim any right of ownership over them. The plaintiffs alleged that these properties were dedicated for public worship and were used for offering prayers since a very long time and had become wakfs by immemorial user. It was further alleged that property No. (1) was a public grave-yard and the defendants wrongly claimed it to be their private grave- yard by refusing permission to the plaintiffs to bury their dead. It was also alleged that the defendants had been mismanaging the wakf properties as a result of which the mosque had fallen in to a state of disrepair and the grave- yard was being converted into shops and other places so as to lose its origin. Lastly the plaintiffs also contended that the Dargah was also a public property dedicated to God and the defendants had no individual or personal interest in the Dargah. The plaintiffs, therefore, filed the present suit for removing the defendants who were de facto managers and had been guilty of acts of mismanagement and misfeasance and for framing a scheme to administer the trust properties.
The suit was contested by defendants 1, 2, 4 and 6 who contended, inter alia, that the entire property was acquired by their ancestor Syed Sultan Makhdoom Sahib who died four years after the purchase and was buried on a part of the land along with the members of his family. The defendants admitted that members of the Rowther community were allowed to offer their prayers in a raised platform in front of the Dargah over which a prayer hall was built by them. The defendants, however, claimed that as the Rowthers were allowed to offer the prayers by leave and licence of the founder, the prayer hall was not a public mosque but a private property of the defendants. Even if the mosque was a public property the adjuncts thereto were the personal property of the defendants and were not used for any religious purpose. Similarly with respect to the grave-yard it was alleged that this was a private grave-yard and the defendants were entitled to charge pit fees and other charges from those Muslims who wanted to bury their dead.
They further contended that the shops had been built by the ancestors of the defendants in order to increase the revenue of the Dargah and for the proper administration thereof.
Lastly the defendants pleaded that the present suit by the plaintiffs was clearly barred by res judicata in view of the previous judgments of the Courts pronouncing upon the rights of the parties against the plaintiffs.
730 These were the facts pleaded by the parties in original suits Nos. 9 of 1956 and 71 of 1957 heard by the Court of Sub-Judge Mayuram. It appears that one suit being O.S. No. 9 of 1956 was filed in the Court of the Sub-Judge Mayuram, whereas suit No. 71 of 1957 was originally filed in the Court of the District Munsiff. Tiruvarur as O.S. No. 16 of 1957 but the same was transferred by the District Munsiff to the District Munsif's Court at Nagapattinam and was later transferred to the Sub-Judge, Mayuram to be tried along with O.S. No. 9 of 1956. The Trial Court conslidated the two suits and decided them by one common judgment. It might also be mentioned that the present action was preceded by proceedings under s. 145 of the Code of Criminal Procedure wherein the possession of the properties in dispute was found to be with the defendants. In Suit No. 9 of 1956 which was filed in the Court of Sub-Judge, Mayuram, the Court framed the following issues :
"1. Are the Pallivasal, Durgah, the burial grounds, prayer hall etc. set out in Schedule `A' public trusts or are they private trusts belonging to the Labbais ?
2. Is the suit for framing a scheme not competent ? 2(a). If not, is it necessary or desirable to frame a scheme and if so to what trusts ? 3. Is this suit barred by the decision in O.S.
No. 304 of 1898; District Munsif's Court, Tiruvarur, and O.S. No. 8 of 1937. Sub Court, Tiruvarur ?
4. Is this suit barred under Section 55 of the Muslim Wakf Act of 1954 ?
5. Is the Imamship and Muthavalli hereditary in the family of Labbais and the defendants ?
6. Is the 2nd defendant a Imam and Muthavalli ?
7. To what reliefs, if any, are the parties entitled ?" In suit No. 71 of 1957 where substantially the same pleas were raised, the following issues were struck by the Court :
"1. Whether suit, as framed, prayed for declaration that the order in M.C. 9 of 1955 and Cr. R.P. Nos. 784/55 are void, is sustainable in law ?
2. Whether the suit properties are properties of public trust as claimed by the plaintiffs ?
3. Whether the Rowther community of Vijayapurarm are entitled to be in management and possession of the suit properties as claimed in the plaint ?
4. Whether the pleas, covered by Issues 2 and 3 above are not barred by Res Judicata by the findings in the suits and appeals in O.S. No.
167 of 1893, O.S. No. 304 of 1898 and O.S.
No. 8 of 1937 referred to in the written statement ? 731 "5. Whether it is open to the plaintiffs to plead that they are in possession and management in spite of orders in M.C. No. 9 of 1955 and Cr.
R.P. No. 784 of 1955 and C.C. No. 120 of 1955, Sub Division Magistrate, Nagapattinam?
6. Whether the suit for declaration is maintainable ?
7. Whether the suit is not properly valued for the purposes of court fees and jurisdiction ?
8. To what relief are the plaintiffs entitled ?" The Trial Court dismissed the plaintiffs' suits deciding the main issues against the plaintiffs. Thereafter the plaintiffs of both the suits filed appeals before the High Court of Madras and the High Court reversed the decision of the Trial Court in many respects and accepted the plaintiffs' case with respect to the mosque, its adjuncts and the graveyard but found that so far as the Dargah was concerned it was the private property of the defendants and the plaintiffs had no cause of action with respect to the same. The High Court accordingly decreed the plaintiffs' suits with respect to the mosque, its adjuncts and the grave-yard and remanded the case to the Trial Court for framing a scheme for administration of the trust properties.
The suit regarding the Dargah was, however, dismissed. Both the plaintiffs and the defendants have filed appeals by certificate to this Court. Appeal No. 2026 of 1968 is by the plaintiffs regarding the adverse decision given by the High Court in respect of the Dargah, while appeal No. 1223 of 1968 which is the main appeal is by the defendants 1, 2, 4 & 6 against whom the High Court decreed the suits with respect to the mosque, its adjuncts and the grave-yard. Civil Appeal No. 1224 of 1968 has been filed against the decision of the Madras High Court which arises out of original suit No. 71 of 1957.
We have heard the learned counsel for the parties. Mr. Krishnamoorthy Iyer appearing for the appellants has raised the following points before us:
(1) that the history of the litigation would clearly show that the previous judgments between the parties operated as res judicata and the High Court was wrong in not giving effect to the plea of res judicata which would have put a final seal to the disputes between the parties (2) that there is clear evidence of the manner in which the properties appear to have been dedicated and there is no clear declaration of dedication for the purpose of the mosque and the prayers offered in the mosque were only by leave and licence of the founder, and there was no public wakf of the mosque at all which was only a private mosque or a family mosque of the defendants. The learned counsel submitted that the High Court has completely overlooked this legal aspect of the matter;
732 (3) that even if the mosque was wakf of a public character the defendants possessed the hereditary right to administer and govern the same and in these circumstances the plaintiffs had no right to dislodge them by asking the Court to frame a scheme. On a parity of reasoning it was contended that the graveyard was also not a public wakf but the family grave-yard of the defendants;
(4) that the suit was clearly barred by s. 55(2) of the Muslim Wakfs Act, 1954; and (5) that s. 92 of the Code of Civil Procedure had no application to the present case inasmuch as the defendants were not trustees within the meaning of s. 92 of the Code.
Mr. Asoke Sen appearing for the plaintiffs/respondents conceded that he would not press his claim so far as the Dargah was concerned which has rightly been held as the private property of the defendants. On the other points, Mr. Sen repelled the arguments of Mr. Iyer by submitting that the plea of res judicata was totally unfounded inasmuch as the public character of the wakf never came up for decision before the Courts which decided the previous litigation, where the question was confined only to certain rights claimed by the defendants with respect to leading the congregation and administration and management of the mosque. It was further contended that there is overwhelming evidence to show that the grave-yard was a public trust by immemorial user and the defendants had no right to construct the shops thereon. On the question of the dedication it was argued that under the Mahomedan Law an oral dedication is enough to create a wakf and Ext. B-3 contains an intrinsic evidence of a clear dedication of the property for the purpose of the mosque along with its adjuncts, which were in fact used for the purposes connected with the performance of the prayers. Lastly it was submitted that s. 55 of the Muslim Wakfs Act had no application because at the time when the suit was brought no Board was constituted under the Act.
As regards s. 92 of the Code of Civil Procedure it was submitted that the defendants were undoubtedly trustees de son tort and would, therefore, fall within the ambit of s. 92 of the Code of Civil Procedure and as the Trial Court had itself held that the defendants were guilty of gross negligence, the provisions of s. 92 of the Code of Civil Procedure could be clearly invoked.
In the light of these arguments of the parties and the history of a case, we would now proceed to decide the points in controversy in this case. We would first deal with the question of res judicata. In support of this plea the defendants have relied on Exts. B-5 to B-9, B-12, B-16, B- 28, B-30, B-31 and B-73 in support of their case that these judgments constitute and operate as res judicata, and particularly judgments given in those suits which were brought in representative capacity under O. 1, r. 8 of the Code of Civil Procedure . Before we analyse these judgments, it may be necessary to mention that before a plea of res judicata can be given effect, the following conditions must be proved- 733 (1) that the litigating parties must be the same;
(2) that the subject-matter of the suit also must be; identical;
(3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction.
In the instant case according to the plaintiffs / respondents the identity of the subject-matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. Unfortunately however in this case the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment. We would also like to note what the High Court has said on the question of res judicata. The High Court found that although the litigation between the parties lasted for a pretty long time it was never decided whether all or any of the suit properties constituted a public trust. Both the parties appear to have taken extreme stands but even despite the fact that the previous judgments contained an incidental finding that the mosque was a public property and so was the burial ground, the effect of these findings was nullified in 1939 when the High Court held that even if the properties in dispute were the exclusive properties of the Labbais, this expression was not meant to indicate that they were their private properties. This, in our opinion, clearly shows that the public charcter of the wakf or of the mosque was never in issue. The High Court on this point found as follows:
"We are, therefore, of the view, that the issue as to whether the properties constituted a public trust having been never raised and decided between the parties in any of the prior suits, O.S. No. 9 of 1956 on that question was not barred by res judicata. The finding of the Court below in this regard is affirmed." The Trial Court had also negatived the plea of res judicata taken by the defendants.
With this background we would now proceed to analyse the purport and the effect of the previous judgments relied upon by the appellants. The first litigation between the parties started as far back as 1893 when the Labbais filed a suit against the defendants in the Court of the District Munsif, Tiruvarur being O. S. No. 167 of 1893. This suit was decided by the judgment Ext. B-5 dated March 26, 1895. A perusal of the judgment will clearly disclose that the suit was confined to two points. In the first place the plaintiffs claimed 734 certain rights for performance of ceremonies in the properties and to a share in the income accrued to the mosque from the disciples. Secondly, so far as the grave- yard was concerned the claim was confined to receiving pit fees for the burials. Thus the Court had decreed the plaintiffs' suit for injunction holding as follows:
"The result is that the plaintiffs will have a permanent injunction restraining the defendants from interfering with the plaintiffs' right of officiating at the Khutba, the daily prayers and the Janaza and in reciting Mowlud, Khattam, Koran, and Fathas and, in the absence of a Modin and Vangu (call for prayers) and of lighting the pallivasal and doing such other duties as pertain to the Modin (it being open to the Levvai plaintiffs to do the duties of the Moden when they please), during their turn of office of four months (5th to 8th months of the Hijiri both inclusive) subject of course to their conducting themselves agreeably to the rules regulating their conduct as Lawais. Considering all the circumstances of the case, I think it only right that the plaintiffs should have their costs from the contending Rowther defendants in proportion to their success." It is, therefore, clear that the Munsif did not at all decide either the public character of the mosque or the mode and manner or even the effect of the dedication of the site for the purpose of the mosque or the grave-yard. It is true that the plaintiffs had put forward the claim of hereditary owners of the mosque but that was only in a limited sense, nemely, for the purpose of the management of the mosque.
Once the dedication was complete, the property passed from the owner to God and it never returns to the owner and, therefore, the question of the mosque being private can never arise. In fact we might mention that the very concept of a private mosque is wholly foreign to the dedication of a mosque for public purpose under the Mahomedan Law. In these circumstances it is obvious, therefore, that as the public character of the wakf of the grave-yard was not in issue in that suit, the subject-matter of the judgment was not identical with that of the present suit. In these circumstances, therefore, this judgment cannot operate as res judicata.
Exhibit B-6 dated March 16, 1897 is the judgment in appeal from the aforesaid decision where at p. 394 of the Paper Book the Subordinate Judge held that the Pallivasal or the prayer hall is public property and not descendible to the plaintiffs of that suit. Thus if at all there was any finding regarding the mosque it was against the defendants, In these circumstances, therefore, we are satisfied that this judgment does not appear to be of any assistance to the defendants.
Exhibit B-7 dated December 21, 1899 is the judgment given by the District Munsif, Tiruvarur in O.S. No. 304 of 1898. This was a suit filed by the members of the Rowther community regarding their right to offer prayers and bury the dead in the mosque compound and for managing the affairs of the mosque. In that case also while the Dargah was found to be the private property of the Labbais i.e. the defendants, no finding was given regarding the public nature of the 735 mosque although it was held that the Rowthers had a right to make repairs and manage the mosque and to offer prayers. On the vexed question regarding the public nature of the mosque, the Court refrained from making any observation and stated as follows:
"I therefore studiously refrain from giving any decision on that vexed question about which the Lavvais appeared to be particular. If their rights, if any, in that matter is invaded by the Rowthers, their proper remedy would be to seek compensation and get their rights declared against the community once for all in a suit properly framed for that purpose." In fact it seems to us that although that judgment cannot operate as res judicata, the finding given by the learned District Munsif was wrong on a point of law. Once the founder dedicates the site for the purpose of building a mosque and prayers are offered in the mosque the site and the mosque become wakf properties and the ownership of the founder is completely extinguished. Under the Mahomedan Law no Muslim can be denied the right to offer prayers in a mosque to whatever section or creed he may belong. Thus that judgment also does not appear to be of any use to the defendants.
Exhibit B-8 is the judgment of the District Judge dated November 13, 1902 in appeal against the aforesaid judgment which was dismissed. The Appellate Court also held that the prayer hall was a public property although some of the rooms which formed adjuncts of the mosque belonged to the present plaintiffs i.e. the Rowthers. The ownership of the plaintiffs was inferred merely from the fact that they held the keys of the rooms. It is true that the grave-yard was held to belong to the defendants but there also the principles of Mahomedan Law were completely overlooked.
Exhibit B-9 is the judgment of the High Court of Madras dated July 24, 1906 in second appeals Nos. 541 & 542 of 1903. Those appeals were dismissed with the modification that whereas the plaintiffs had the right to bury the corpses of the members of their community in the burial ground they had to pay the proper burial fees. Thus to a great extent the decision of the subordinate courts was modified by the High Court and the public character of the burial ground was in a way affirmed.
Exhibit B-12 dated September 4, 1923 is the judgment of the Subordinate Judge, Nagapattinam, in appeal against the judgment of the Munsif in suit No. 579 of 1920. The suit was brought by some members of the Muslim community for an injunction restraining the defendant Labbai from reciting prayers or conducting the worship in the prayer hall. The suit was dismissed on the finding that the defendent Labbai had the right to recite prayers and lead congregation in the prayer hall. The Subordinate Judge in appeal differed from the judgment of the learned Munsif and held that while an injunction could be granted with respect to the prayer hall alone, the defendants were entitled to officiate at the prayers in the adjuncts of the mosque. The decree of the Trial Court was accordingly modified. Here we might mention that the judgment suffers from 736 a serious legal infirmity arising from a complete ignorance of the essential principles of the Mahomedan Law. Once the founder dedicates a particular property for the purpose of a public mosque, the Mahomedan Law does not permit any one from stopping the Mahomedan public from offering prayers and reciting Koran etc, Similarly the adjuncts to the mosque which are also used for religious purposes become as much a part of the mosque as the mosque itself and in these circumstances no injunction should have been granted at all by the Court. However, as here also the public character of the mosque was not at all involved either directly or indirectly this decision also cannot operate as res judigata. The question of the right to officiate in a public mosque has to be decided according to the principles of the Mahomedan Law and usage and we shall deal with this aspect when we consider the contention of the appellants regarding the public character of the mosque.
Exhibit B-16 dated September 13, 1926 is the judgment of the High Court of Madras against the aforesaid judgment of the Subordinate Judge in Second Appeal No. 1890 of 1923.
This appeal was decided on September 13, 1926 and it upheld the judgment of the learned Subordinate Judge. This judgment is also confined only to the question whether public worship was carried on in portions marked B & C in the plan. Thus the limited question which fell for consideration of the High Court was not that the portions marked B & C formed parts of public mosque but whether there was right of prayrers in those places.
Exhibit B-28 dated August 31, 1937 is a judgment of the Subordinate Judge in suit No. 8 of 1937 brought by the Rowthers against the Labbais. To begin with this suit also related not to the nature of the public mosque but only to the management thereof. The main question which arose for decision in that suit was as to who was entitled to manage the affairs of the mosque, whether the right of appointing Imam was hereditary. Learned counsel for the appellants placed great reliance on the following observations of the Subordinate Judge:
"My finding on Issue I, in so far as it relates to O.S. 304 of 1898, will be that the decision therein operates as res judicata as regards the ownership and physical control of the suit mosque, but not as regards the person who is to appoint as Imam. That is to say, the plaintiffs are debarred from disputing the Labbais ownership of the mosque and burial ground as a whole and from asserting that the plaintiffs themselves are anything more than licensee in respect of the mosque." It was submitted that the Court had clearly found that the question of the ownership and physical control of the mosque was finally adjudicated upon and operated as res judicata as held by the Court. This observation made by the High Court has to be understood in the light of the pleadings of the parties. In fact the Court was merely called upon to decide the limited question as to who was to manage the mosque.
From a review of the previous judgments 737 discussed above, it is absolutely clear that it was never disputed even by the Labbais that the mosque was a public mosque where prayers were offered by Mahomedan public. The only question which arose before the Subordinate Judge was as to who was to manage the affairs of the mosque and whether the right to appoint Imam was hereditary. The Court itself found towards the end of its judgment that the plaintiffs could appoint a Muttavali to look after the affairs in the suit mosque but they could not appoint Imam, but the right to lead prayers as Imam was a hereditary right vested exelusively in the defendant's family. We might hasten to add that once a mosque is held to be a public mosque, the Mahomedan Law does not favour the right of a person to officiate as Imam to be hereditary in the absence of a custom or usage to the contrary. An Imam must possess certain essential virtues before he can claim to lead the congregations at the prayers. The property having been dedicated to God, it is not open to the founder or his descendants to interfere with the performance of public prayers. In these circumstances, therefore, we are unable to regard this judgment as barring the suit of the plaintiffs regarding the public character of the mosque.
Exhibit B-30 dated February 26, 1941 is a judgment of the High Court in original Suit No. 112 of 1935 brought in the Court of the District Munsif against the Municipal Council, Tiruvarur praying for an injunction restraining the Municipal Commissioner from interfering with the plaintiffs right of access to the grave-yard. Here also the public character of the Wakf was taken for granted and an injunction against the Municipal Council was granted by the High Court. This judgment is of no assistance in deciding either the question of res judicata or for that matter the question of public character of the mosque.
Exhibit B-31 dated November 13, 1941 is a judgment of the High Court in Second Appeal No. 252 of 1939, and appears to have been relied upon by counsel for both the parties in support of their respective cases. In our opinion, this judgment is really important in the sense that for the first time the judgment opens up the real and the vital issue which is to be decided in this case. Here also, the appeal arose out of a suit No. 8 of 1937 brought by the Rowthers against the Labbais and the main point in dispute was the right to officiate as Imam. The suit was brought in a representative capacity and was dismissed by both the Courts holding that the right to appoint Imam lay with the defendants Labbais. The High Court held that there was overwhelming evidence in favour of the usage relied upon by the defendants to be the Pesh Imams. The Court further pointed out that the only remedy for these constant quarrels and fights between the two communities was a suit under s. 92 of the Code of Civil Procedure . In this connection Somayya, J., observed as follows:
"In this case I have found that there is overwhelming evidence in favour of the usage by which the defendants are to be the Pesh Imams. The only remedy for these constant quarrels and fights between the two communities is a suit under section 92 of the Civil Procedure Code in which the 738 Court might frame scheme having sole regard to the best interests of the institution." Learned counsel for the appellants, however, relied upon the observations of the learned Judge where he had mentioned that the burial ground and other places were the exclusive properties of the Labbais. The learned Judge, however, was careful enough to add that by exclusive property he never meant that it was the private property of the Labbais but only that the Rowthers had no interest in the same. As, however, the suit was not for any declaration that the mosque was a public one the observations made by the High Court were purely obiter dicta and cannot put the present plaintiffs out of Court.
These are the judgments of the various courts in the suits filed by one party or the other relied upon by the appellants in order to prove- (1) that the judgments operated as res judicata;
and (2) that both the burial ground and the mosque and its adjuncts were not wakfs of a public nature.
As discussed above, the judgments do not prove any of the points relied upon by the appellants. The question of the public character of the Wakfs in any suit filed by one party or the other was never raised. The only questions that were raised from time to time were the questions regarding the performance of certain religious ceremonies, the question of officiation of the Imam and so on. Even as regards the grave-yard it was never claimed by the defendants in the suits which formed the subject-matter of the aforesaid judgments that the Mahomedan community had no right at all to bury their dead in the grave-yard. All that was contended was that the grave-yard was a family grave-yard of the defendants and they allowed corpses of other Mahomedans to be buried only on charging pit fees and other amounts. As to what is the effect of this will be considered by us when we deal with the broader question as to whether or not the burial grounds shown in the sketch map could be presumed to be public grave-yards by immemorial user.
Reliance was also placed on Ext. B-73 dated April 5, 1957 an order of the High Court in Criminal Revision Petition No. 443 of 1956, where the Rowthers had admitted before the Court that they would not interfere with the rights of the defendants and on the basis of that admission they were acquitted. As perusal of the order would clearly show that the admission was not unqualified, but it amounted only to this that the Rewthers would not take the law into their own hands but would take recourse to legal remedies.
This is clear from the following observations of the High Court:
But that pretension is not persisted here by the learned Advocate and it is stated that by reason of this reconstruction they do not claim any right, title or interest which does not accrue to them from the various litigations and that this will not be a precedent and that they would not do in 739 future any such interference without obtaining the orders of the appropriate authorities." Furthermore, the admission was made in a criminal revision when the plaintiffs had been convicted and if the admission was not made their conviction would have been upheld by the High Court. The admission, therefore, being in terrorem loses much of its significance. At any rate, since the plaintiffs have filed the present suit under s. 92 of the Code of Civil Procedure for framing a scheme, they have not acted against the admission, because they have availed of a remedy which was open to them under the law. This is all the documentary evidence produced by the appellants/defendants.
As against this the plaintiffs have produced a large number of judgments in suits, particularly relating to the public nature of the grave-yard and the attempts by the plaintiffs to get an injunction from the Courts directing the defendants to demolish the shops which they had built up in some parts of the grave-yard. These judgments, in our opinion, clearly show that the burial ground was a public grave-yard and the case of the defendants that it was their family gtave-yard has been completely negatived by the judgments relied upon by the plaintiffs which extend right from 1919 to 1932. We may now proceed to discuss these judgments.
Exhibit A-4 dated May 7, 1919 is a decision of the District Munsif, Tiruvarur in O.S. 331 of 1915. This was a suit brought by the Rowthers for an injunction restraining the defendants Labbais from building shops on the burial ground in question and for a mandatory injunction directing the defendants to remove the shops erected on some parts of the burial-ground. The suit proceeded on the basis that the grave-yard was a public one and the defendants who were managing the same had no right to construct shops and thereby change the
