JUDGMENT Sulaiman C. J. and Bennet, J. - This is an appeal under the Letters Patent arising out of a suit brought by the Plaintiffs for a perpetual injunction restraining the Defendants from causing any sort of interference with the land of the platform alleged to appertain to the house of the Plaintiffs and described by the boundaries given in the plaint. In the alternative there was a prayer for possession if the Plaintiffs were found to be out of possession.. In paragraph 2 of the plaint the Plaintiffs had alleged that on this platform which was owned and possessed by the Plaintiffs and according to them formed part of their house, there was "a kuchcha 'Yadgar' (monument) on the platform aforesaid with which the Defendants" had no connection or concern. The fact that there had been a criminal litigation between the parties resulting in the conviction of the Plaintiffs was not mentioned. The Defendants on the other hand denied that the land in dispute was a part of the Plaintiffs' platform or that it appertained to their house and belonged to the Plaintiffs. Their case was that it was an "old dargah (shrine) of the Musalmans" and that there was a pucca built tomb on it with an arch over it, and that the Muhammadans of the locality had been illuminating the place on Thursday from time immemorial and had been offering faith as at the tomb and performing other ceremonies at the time of Muharram, etc. The Defendants denied the Plaintiffs' possession over this part of the land. 2. The learned Munsif dealt with the evidence at considerable length and held that the place in suit was the tomb of some Muslim saint and that the Defendants had a right to visit the grave and to repair it without the permission of the Plaintiffs and that the Plaintiffs had no concern with the grave in suit which did not belong to the Plaintiffs. The Plaintiffs' claim was accordingly dismissed. On appeal the case was first remanded for taking some fresh evidence which was done and the record re-submitted to the appellate Court. On appeal the lower appellate Court came to a different conclusion and reversing the decree of the first Court decreed the suit of the Plaintiffs in full with costs. Admittedly this tomb and even the house have existed for over 100 years. On appeal the lower appellate Court came to a different conclusion and reversing the decree of the first Court decreed the suit of the Plaintiffs in full with costs. Admittedly this tomb and even the house have existed for over 100 years. The exact origin of the tomb or the name of the person who is buried in it is not known. But the learned Judge of the appellate Court remarked: "I take it for granted that it is a tomb of a Mohammadan and probably of one of the former owners of this house who are alleged to be Mohammadans." He therefore proceeded to decide the suit on the basis of this assumption. He devoted a considerable part of his judgment to the question whether this tomb could properly speaking be called a dargah or not, and decided that it could not be called a "dargah" in the ordinary sense of that word. He referred to the two sale deeds of 1820 and 1899 and relied upon them as establishing the Plaintiffs' title to this land. It may be mentioned here that the sale deed of 1820 had been executed by a certain Hindu owner in favour of another Hindu purchaser under which the pucca house was transferred with all the rights appertaining thereto, but there was no mention in it of any chabutra appertaining to the house, nor was there any mention of a tomb on the site which was being transferred. The sale deed of 1899 was executed by Bihari Lal and Ram Prasad who transferred the pucca house together with the pucca chabutra lying in front of it. There was no mention of any tomb in the sale deed nor were the measurements of the chabutra given. It is on the strength of these two sale deeds mainly that the lower appellate Court came to the conclusion that the title of the Plaintiffs to the whole of the land including this tomb, which is to the south of the door, was established. The lower appellate Court also rejected the Defendants' oral evidence which had been accepted by the first Court that the Muhammadans were performing other religious ceremonies at this place and it was a sort of a public dargah. 3. The lower appellate Court also rejected the Defendants' oral evidence which had been accepted by the first Court that the Muhammadans were performing other religious ceremonies at this place and it was a sort of a public dargah. 3. Starting, therefore, with the hypothesis that this was a tomb of the original Muhammadan owner of the house, the lower appellate Court, after repelling the contention that every tomb of a Muhammadan can be a dargah, pointed out that there was no presumption that if a Muhammadan is buried at any place he is buried in his own land, because according to Muhammadan Law a Musalnan cannot be buried in the land belonging to another. The learned Judge rejected such a presumption on the supposition that it was arbitrary. No doubt there may not be a presumption that the place where a Muhammadan is buried belonged to the deceased himself, but there is a presumption that the burial at that place was with the consent of the original owner whoever he may have been. But in this case the question of presumption has no bearing because the learned Judge started with the hyopthesis that the tomb wasprobablyofoneof the former owners of the house himself. He then proceeded to consider the question whether "all Mohammadans can claim a right to go to every tomb of a Mohammadan wherever it might be situated and to repair the same and to perform whatever rites they want to perform" to which he gave an answer in the form of a clear note. He concluded that the tomb was within the Plaintiffs' chabutra and that the burden was on the Defendants to prove the adverse possession. He accordingly allowed the appeal and set aside the decree of the Court of first instance and decreed the claim in full. On appeal, a learned single Judge of this Court accepted the finding of the lower appellate Court that the chabutra belonged to the Plaintiffs. The learned single Judge also thought that on the findings the place could not be regarded as a "dargah". On appeal, a learned single Judge of this Court accepted the finding of the lower appellate Court that the chabutra belonged to the Plaintiffs. The learned single Judge also thought that on the findings the place could not be regarded as a "dargah". The learned single Judge also proceeded on the assumption made by the lower appellate Court that "on a part of the chabutra there is a tomb of a Muhammadan, probably of one of the former owners of this house, a Muhammadan," and the learned Judge took it that on the chabutra there is a tomb of a Muhammadan which is old. The next question that arose for consideration was whether because of the existence of this tomb the Muhammadans have a right to claim that they are "the owners" of it. Obviously the Muhammadans could not claim the ownership of the tomb or the site of the tomb as that according to their contention would be dedicated property. The learned Judge accepting the view of the lower appellate Court remarked that the Plaintiffs became the owners of the entire chabutra "including that portion on which the grave of a Muhammadan lies". This finding was based on the view that "If a piece of land on which a grave of a Muhammadan exists is sold by that Muhammadan, then it is no longer open to any member of the Muhammadan community to say that they have a right to go at any time they like to offer lights or make any other offerings at the grave. The case of a public dargah would stand on a different footing altogether." 4. It, therefore appears to have been assumed that if the descendants of a deceased owner whose tomb stands on his land transfer the land, then the ownership of the tomb also passes with it. This view is not correct. The burial of a dead body in a place necessarily involves the inference that the corpse is not to be dug out in future and the place is to remain consecrated so long at least as the tomb stands thereon. The presumption, therefore, is that that part of the site in which the dead body is buried is dedicated with the consent of the owners of the land and becomes sacred and ceases to be the private property of the former owners. The presumption, therefore, is that that part of the site in which the dead body is buried is dedicated with the consent of the owners of the land and becomes sacred and ceases to be the private property of the former owners. This should be the presumtion when it is known that a tomb with its ceremonies has stood on a land for over 100 years. There would be no presumption that the site occupied by this tomb Js the private property of any particular individual. As a matter of fact in this case there was absolutely no evidence whatsoever that the heirs of the deceased Muhammadans sold the house, much less that they sold the tomb. 5. Immediately after the filing of the suit the Plaintiffs got a commissioner, Babu Radhey Mohan, appointed to go to the place and after making an inspection make a report to the Court. This happened before the Defendants had appeared at all. This report of the Commissioner which was ex parte so far as the Defendants were concerned and the correctness of which was never challenged, has been very cursorily referred to by the lower appellate Court although it was strongly relied upon by the trial Court. According to the Commissioner there is a wall some three feet high at point E. dividing the chabutra into DE and EB. The dispute is about the portion EB. The Commissioner drew a sketch map marked as figure No. II on which was shown a diagram of the section of the chabutra measuring 9 ft. 6 in. long and 4 ft. wide at its northern end and 3 ft. 7 in. wide at its southern end, In that wall there is an archway or niche and there are also some windows or skylights overlooking the disputed portion. 6. We think that on the assumption made by the lower appellate Court that this was the tomb of the former Muhammadan owner of the house himself, the conclusion of the lower appellate Court that the tomb was the property of the Plaintiffs was legally wrong. We have not got the original sale deed executed by the Muhammadan heirs of the deceased. We have not got the original sale deed executed by the Muhammadan heirs of the deceased. All that we have are sale deeds executed by subsequent Hindu purchasers of the property, and as already remarked, there is no mention of any chabutra or tomb in the first sale deed at all, but there was some mention of a chabutra in the sale deed of 1899 and no reference to the tomb.' These documents were therefore not sufficient in themselves to show the exact measurements of the chabutra belonging to the Plaintiffs and would certainly not show that that chabutra extended to a spot which would include this tomb. Furthermore, even if that were accepted, it would not follow that the sale of the land surrounding the tomb legally involved the sale of the site of the tomb itself when that tomb must be regarded as a dedicated spot. 7. We are, therefore, of opinion that the decree of the lower appellate Court decreeing the Plaintiffs' suit in full was wrong. The Plaintiffs' claim so far as the strip of land measuring 9ft. 6in. from north to south and 4ft. wide on its northern end and 3ft. 7in. wide at its southern end separated from the main chabutra by the low wall some 3ft. high dividing it at the point E in the Commissioner's map cannot possibly succeed. The spot should be considered as waqf land in which the members of the Muhammadan community would be interested and to which they would be entitled to have access. The plaint is vague as regards the part of the land to the north of the low wall ; but we assume that the Plaintiffs sought relief in respect of the rest of the land as well to which the Defendants did not in reality object. 8. We accordingly allow this appeal and setting aside the decree of the learned single Judge of this Court and that of the lower appellate Court grant the Plaintiffs a dtcree for a declaration that the land in front of their house lying to the north of the low wall 3ft. 8. We accordingly allow this appeal and setting aside the decree of the learned single Judge of this Court and that of the lower appellate Court grant the Plaintiffs a dtcree for a declaration that the land in front of their house lying to the north of the low wall 3ft. high which divides the portion at the point E belongs to them and the Defendants should in no way interfere with their possession of that portion, but the Plaintiffs' claim as regards the land to the south of the said low wall though adjoining the Plaintiffs' western wall should be dismissed. As the plaint did not expressly allege any interference on the part of the Defendants with the Plaintiffs' possession over the northern portion of the land the Plaintiffs should pay the costs of the Defendants throughout.