JUDGMENT : BANERJI, J.:— The suit which has given rise to this appeal was brought by the respondents for a declaration that a plot of land No. 48 was a public burial ground, and was not the property of the defendants, the zamindars of the village. The plaintiffs also asked for an injunction restraining the defendants from making encroachments on the land and interfering with the trees standing thereon. It appears that the village originally belonged to certain Mnhammadan zamindars. Their rights were confiscated by Government on account of their rebellion during the mutiny of 1857 and were sold to the defendants. The defendants are thus the proprietors of the village. The plaintiffs allege that the original owners made a dedication of this plot for purposes of a cemetery, that the land has always been used as a cemetery, and that the defendants have no proprietary rights in it. The court of first instance dismissed the suit holding that an actual dedication of the land had not been proved. The lower appellate court has come to an opposite finding and has held the land to be wakf property. It has found that the land is a cemetery, and Las been used as a cemetery for upwards of a hundred years. It has also found, and this is a fact admitted in the fourth paragraph of the defendant's written statement, that all the Musalmans in the village use the land as a graveyard. From the fact that the land has been used as a cemetery by the Musalman public for a great many years the presumption would be that a dedication of the land was made for the purpose of a cemetery. A dedication of this kind may be made either by an actual declaration of the wakf or by delivery, in other words, by the use of the place for the purpose for which the dedication was made. In Mr. Amir Ali's Muhammadan Law, vol. A dedication of this kind may be made either by an actual declaration of the wakf or by delivery, in other words, by the use of the place for the purpose for which the dedication was made. In Mr. Amir Ali's Muhammadan Law, vol. 1, 3rd edition, page 315, it is stated that “when a person erects an aqueduct for Musalmans or an ‘inn for the occupation of travellers or a caravan-sarai’ or constitutes his land into a cemetery, the right of property according to Muhammad, abates when people have used the aqueduct, or have occupied the inn or caravan-sarai or buried in the cemetery.” In this case, as I have stated above, it has been found that the land in suit has for a number of years been used as a cemetery, so that there has been a delivery of the property for the purpose of a cemetery and thus a complete wakf was effected. The courts below were therefore right in holding that the defendants had no longer any proprietary right in the land in suit. By the confiscation which took place after the mutiny only such rights were confiscated as existed in the rebels at the date of the confiscation, and it is those rights only which have been acquired by the defendants. If a valid wakf had been created in regard to the land in question before the confiscation, the original owners had ceased to have any right to the said land. Therefore the defendants by acquiring the rights which had been confiscated, could not acquire the owner-ship of the land. As regards the plea that the defendants have a right of easement to irrigate their fields and that this right ought to have been declared in the decree, all that need be said is that the decree as framed does not militate against such rights. I accordingly dismiss this appeal with costs including in this court fees on the higher scale.