ORDER D.P. Uniyal, J. - This is a Plaintiffs appeal arising out of a suit for a declaration that the graveyard in suit is a public waqf of which the Plaintiff is the mutwalli. 2. There is a graveyard situate in settlement plot No. 1047 in Mohalla Jagjiwanpur in the city of Varanasi. Adjoining the graveyard is a mosque which stands on plot No. 1046 and part of plot No. 1047. Admittedly the mosque is waqf property of which the Plaintiff is the mutwalli. 3. It appears that on the 22nd November, 1879 there was an auction sale in respect of plot No. 101-7 in execution of a decree against some members of the Defendant's family and the plot was purchased by Ahmad son of Nazar Mohammad, one of the ancestors of the Plaintiff. The sale of the plot in suit in favour of Ahmad son of Nazar Mohammad is proved by a copy of the sale certificate produced in the case. There is, however, no documentary evidence to show that dakhaldehani was obtained by the auction purchaser. But it is not in controversy that the said plot was converted into a graveyard and was used as such by the ancestors of the Defendant whose family members after their death continue to be burried in the said graveyard. 4. The main dispute between the parties is as to the public or private nature of the graveyard. While the Plaintiff claims it to be a dedication for purposes of burying the dead of the public in general, the Defendant asserts that it is a private family graveyard. 5. There is no evidence of express dedication of the land as a public graveyard. In the plaint the Plaintiff asserted that it was a public waqf and he was its mutwalli. It was not the Plaintiff's case in the courts below that the graveyard in question was registered as a public waqf under the Muslim Waqfs Act. In the course of his arguments the learned Counsel for the Appellant asserted that it was a registered waqf. He was given time to produce the certificate of registration but was unable to do so. He conceded that there was no express dedication of the graveyard as a public waqf and that there was no written waqfnama to prove such dedication. The Plaintiff alternatively based his claim to the graveyard as a waqf user. He was given time to produce the certificate of registration but was unable to do so. He conceded that there was no express dedication of the graveyard as a public waqf and that there was no written waqfnama to prove such dedication. The Plaintiff alternatively based his claim to the graveyard as a waqf user. According to him the land in question had, for over 70 years, been used as a public graveyard, but neither the Plaintiff nor his witnesses could give a single instance of the burial of any member of the public in the graveyard. On the contrary, there was considerable documentary evidence on the record to show that the members of the Defendant's family after death were buried in this graveyard. The Defendant produced entries from the Death Register of the Municipal Board showing that a large number of his family members were buried in this graveyard after death. Exs. A-2 to A-5 and A 12 to A-16 are death certificates which establish the Defendant's case that the graveyard in suit has been used as his family graveyard. The Plaintiff and his witnesses also admitted that the dead bodies of the Defendant's family are buried in the graveyard. 6. The lower appellate court held that the oral and documentary evidence fully proved that the graveyard in suit was the private family graveyard of the Defendant and it was not a public graveyard. The court further found that there was no~ reliable evidence to show that the Plaintiff was the mutwalli of the graveyard. On these findings the learned Civil Judge dismissed the Plaintiff's suit. 7. The learned Counsel for the Appellant made two contentions before me; first, that since the Plaintiff claimed that the graveyard in question was a public waqf and the suit related to title to waqf property, the court could not proceed to try the suit without first giving notice to the Central Board of Waqf u/s 52 of the U. P. Muslim Waqfs Act, 1936; and secondly that in view of the admission of the Defendant that the land in suit was used as a graveyard, the lower appellate court erred in not presuming that the graveyard was a public waqf by user. 8. 8. It has already been noticed that there was no allegation in the plaint that the graveyard was registered as a public weqf under the Muslim Waqfs Act, Section 52 runs thus: When any suit relating to title to any waqf property, or to the rights of a mutwalli, is instituted in any civil court, such court shall give notice of such suit to the Central Board at the cost of the Plaintiff.'' 'Waqf' has been defined in Section 3 as a permanent dedication or grant of any property for any purpose recognised by the Mohammedan Law or usage as religious, pious or charitable, and where no deed of waqf is traceable, includes waqf by user. 9. Section 2(2) (ii) states that the U.P. Muslim Waqfs Act shall not apply to a waqf created solely for either of the following purposes. Clause (c) of that Sub-section excludes the operation of the act to waqfs created solely for the maintenance of private in ambaras, tombs and graveyards. It follows that if the graveyard in suit is proved to be a private graveyard the provisions of Section 52 will not be applicable to it. 10. The important question, therefore, that arises for consideration is whether the graveyard is a public graveyard or a private graveyard. The learned Civil Judge, alter giving due consideration to the oral and documentary evidence adduced by the parties, came to the conclusion that the graveyard had been used exclusively for burying the dead of the Defendant's family and that the Plaintiff had failed to prove that the Muslim public had ever used it for burying its dead. The court below came to a categorical finding that the graveyard-was a private graveyard of the Defendant. The above finding clearly excludes the operation of the Act to the suit land which has been held to be a private graveyard. 11. The learned Counsel laid great stress on the observations of the Calcutta High Court in Benoy Kumar Acharjee Choudhury and Others Vs. Ahammad Ali and Others, AIR 1942 Cal 467 . In that case the learned Judges observed that- If in a suit a claim is made that certain property is waqf, the Commissioner of Waqfs as protector of all waqfs is obviously interested to see that the suit is properly conducted so that no waqf estate is destroyed or adversely affected. Section 70 enables him to do this. In that case the learned Judges observed that- If in a suit a claim is made that certain property is waqf, the Commissioner of Waqfs as protector of all waqfs is obviously interested to see that the suit is properly conducted so that no waqf estate is destroyed or adversely affected. Section 70 enables him to do this. The learned Judges, therefore, held that a notice u/s 70 was necessary even if the claim that the property is waqf was contested. 12. The above decision of the Calcutta High Court is based on the provisions of the Bengal Waqfs Act, XII of 1934. It is noteworthy that the Bengal Act applies equally to all waqfs, public or private. No exception is made in favour of private waqfs. Section 44 of the Bengal Act lays down that "all waqfs existing at or created after the commencement of this Act shall be enrolled at the office of the Commissioner. Section 52 imposes a duty on every mutwalli of a waqf al aula to prepare and furnish to the Commissioner a true statement in respect of the gross income of the waqf property, the expenses and other particulars. Under the U.P. Act, however, such waqfs are excluded from the operation of the Act. There is thus no analogy between the Bengal Waqfs Act and the U.P. Muslim Waqfs Act; the provisions of the two Acts are not the same in material particulars. I, therefore, overrule the contention of the learned Counsel regarding the maintainability of the suit on the ground of noncompliance of Section 52. 13. The second objection of the learned Counsel is equally unfounded. While it is true that a cemetry or graveyard is consecrated ground and cannot be sold or partitioned even though there is no express dedication in respect of it, it cannot be argued as a proposition of law that once the existence of a graveyard is established it must be presumed to be a public graveyard and a public waqf. A private graveyard no doubt partakes of the nature of a waqf in that the land is used for burying the dead of a particular family or clan, but it cannot for that reason be considered as a public waqf. It is always a question of fact whether a cemetry or graveyard has been used as a public graveyard or a private family graveyard. It is always a question of fact whether a cemetry or graveyard has been used as a public graveyard or a private family graveyard. The user of the land for burying the dead of the members of a particular family to the complete exclusion of strangers is thus an important factor in determining the nature of the waqf property. The fact that for over 50 years the land in suit was used only by the Defendant's family for burying their dead is, in my opinion, a conclusive circumstance against the land being a public waqf. I have, therefore, no hesitation in endorsing the finding of the court below that the graveyard in suit is not a public waqf, nor is the Plaintiff its mutwalli. 14. This appeal must, therefore, fail and is hereby dismissed with costs.