Banwari & Others vs Ahmad Syed & Others

Sudhir Agarwal, J.—Heard Sri Paras Nath Singh, Advocate, for appellants and Sri Lalit Kumar, Advocate, for respondents.

Appellants'' suit for injunction against the defendantrespondents, whereby they had sought permanent injunction retraining the defendantrespondents from interfering in their peaceful possession and enjoyment of the property in dispute, was dismissed by Civil Judge (Senior Division), Khurja, Bulandshahar vide his judgment dated 2.12.2003 on the ground that the property In dispute is a Muslim graveyard, and, being a waqf, it could not have been a subject matter of transfer by sale, hence, the saledeed dated 25.7.1969, whereupon the plaintiffappellants founded their claim, was void abinitio.

The Trial Court recorded a finding of fact that property in dispute was part of a Muslim graveyard and it was also registered in the Abadi Khasra land No. 724 as Kabristan. The Kabristan is a waqf and it could not have been transferred by a saledeed, and, therefore, the alleged saledeed, whereby the property in dispute was purchased by the plaintiffappellants, was void abinitio. The judgment of Trial Court has been confirmed by the lower Appellate Court dismissing Civil Appeal No. 136 of 2009 vide judgment dated 7.10.2010.

Lower Appellate Court has also confirmed the finding of fact that the property in dispute form part of Muslim Graveyard which is a waqf, hence, could not be subject matter of transfer by sale and the saledeed, whereupon plaintiffappellants founded their case, is, therefore, nullity.

Learned counsel for appellant contended that it was not a public Kabristan, hence not a waqf, and hence the judgments under appeal are wholly illegal.

The question as to whether a land belong to a part of Kabristan is a question of fact as held by this Court in Sheoraj Chamar Vs. Mudeer Khan AIR 1934 All. 868 followed in QuadirBakhsh Vs. Saddullah and others A.I.R. 1938 Oudh. 77.

Since a finding of fact has been recorded by both the Courts below relying on evidence, in absence of anything to show that any admissible evidence has not been considered by Courts below, or, finding is perverse, I do not find that any substantial question of law is involved in this case. The appeal, therefore, is liable to be dismissed and is, accordingly, dismissed.