JUDGMENT Bhargava, J.- 1. The appellants, with the permission of the Advocate General, instituted a suit under section 92 of the Code of Civil Procedure in respect of a property known as Chimte-Ka-Bara, situated in Ujjain, bearing plot No. 8326 old and No. 1/465 new, with the allegation that this property constituted a Qabristan for Muslims of Ujjain and has been used as such from time immemorial, so that it was subject of a public waqf. 2. In the year 1916, one Shahbaj Khan Faqir was asked by the Muslims of the locality to look after the grave-yard and he started doing so with the help of his niece Mariam Bai. Subsequently, the property was looked after by the son and grand-son of Shahbaj Khan, Faqir. Some time after the year 1916, Mariam Bai was allowed to put up a house on a part of the land for her own residence and for the residence of Shahbaj Khan because they were looking after the property as Mutawallis. On 28 January 1918, the Muslims filed a suit against one Ali Mohd. Bohora and Shahbaj Khan for removal of a flour mill which had been wrongfully put up on this Waqf land, and in this suit, on 17th May, 1918, Shahbaj Khan made a statement giving the status in which he was in possession of the land. On 21st May, 1930 an application was moved by the Muslims of that area before the Municipal Committee to allow this grave-yard to continue to be used for future burial of the dead bodies, the occassion having arisen because the Municipal Committee decided to close this grave-yard and allotted another site to be used as the grave-yard of the Muslims In 1947, Shahbaj Khan constructed a house over part of the disputed land. Thereafter, the appellants obtained the sanction of the Advocate General on 21st August, 1950 and instituted the suit under S.92 C.P.C. on 22nd November 1950 for a declaration that the entire property in dispute was a grave-yard, and for removal of the Mutawallis who had wrongfully converted the property to their own use and were claiming that it belonged to them, and for laying down a scheme for the management of the property. The suit was decreed by the District Judge on 9th May, 1949. On appeal by the present respondents, the High Court modified the order passed by the District Judge. The suit was decreed by the District Judge on 9th May, 1949. On appeal by the present respondents, the High Court modified the order passed by the District Judge. The High Court recorded the finding that, though the existence of a grave-yard was established as also the fact that it was a public grave-yard which must be deemed to be waqf property by user, the portion occupied by the buildings was not proved to be a part of the grave-yard. Consequently, the suit in respect of the portion over which the Abadi existed was dismissed. Further, the High Court took notice of the fact that this grave-yard had now been closed under the orders of the Municipal Committee so that all that was now needed was to look after the existing graves and this was not likely to yield any income and, consequently, the respondents were the best persons to look after the grave-yard. The High Court, therefore, appointed the respondents as Mutawallis to look after the waqf property, after making it clear that the respondents will be prevented from using the burial ground for an) private purpose. The decree of the District Judge, in so far as it related to the portion over which there were actual constructions in existence, was set aside and that portion of the land was allowed to remain in possession of the respondents. The appellants have now come up to this Court in this appeal by special leave against this decree of the High Court insofar as their claim was disallowed by that Court. 3. In this appeal, only two points arise for decision and they were the points which were urged by learned counsel for the appellants. The first point raised was that the High Court was wrong in coming to the finding that the land, over which the buildings existed, was not grave-yard and was not the subject of waqf. This decision of the High Court was challenged on two grounds. The first ground was that at no stage of the pleadings was it pleaded by any party that a part of the disputed land was grave-yard and waqf property, while another part was private property which was the subject-matter of the waqf. This decision of the High Court was challenged on two grounds. The first ground was that at no stage of the pleadings was it pleaded by any party that a part of the disputed land was grave-yard and waqf property, while another part was private property which was the subject-matter of the waqf. The second ground was that in respect of one single piece of land it is incorrect to hold that one portion of it is subject to waqf, while another portion is private property. 4. In dealing with these points, the first aspect that has to be kept in view is that the burden lay upon the appellants to prove that the property was subject to a waqf and that the waqf which came into existence covered the entire property which was the subject matter of the suit. The respondents challenged this plea of the appellants in toto by pleading that no part of the property was subject of waqf. In such circumstances, if on a consideration of the evidence, the Court came to the finding that part of the property was waqf and part of it was not the subject of the waqf, it cannot be said that that finding did not arise out of the pleadings of the parties. The claim of the respondents in respect of the entire disputed land would certainly cover a claim in respect of a part of it. 5. The second ground also has no force in view of the state of evidence in this case. The appellants did not rely on any document creating waqf in respect of this property. Their case was that the waqf must be inferred from long user. The High Court, in our opinion, was right in holding that, when dedication by user was pleaded, the dedication could only be inferred in respect of that property which the evidence showed had been used as such. On behalf of the appellants no doubt some oral evidence was given to show that the entire land was a grave-yard but no witness came forward to state that, in fact, bodies had been buried in the entire area of the disputed land or in graves scattered over the entire area. On behalf of the appellants no doubt some oral evidence was given to show that the entire land was a grave-yard but no witness came forward to state that, in fact, bodies had been buried in the entire area of the disputed land or in graves scattered over the entire area. No evidence at all was tendered to show that any dead bodies were even buried in the area over which those constructions stand which have been held to belong to the respondents, In fact, almost all the witnesses examined on behalf of the appellants admitted that they did not know the area of the land which was grave-yard and that they also did not know its boundaries. It is clear that in these circumstances these witnesses could not possibly be in a position to state that the constructions made by the respondents stood on waqf land. Reliance was, however, placed on the admissions made by Shahbaj Khan in his statement dated 17th May, 1918, referred to above, and in the statement of D.W.1, Abdul Gani, who is one of the respondents. It appears that D.W. 1 made a statement in line with the claim put forward on behalf of the respondents that no part of this disputed land was public waqf and that whole of its was the private property of the respondents. The respondents admitted that a part of it was Qabristan, but claimed that it was their private Qabristan and not a public one, In view of this position taken by the respondents. D.W. 1 in giving his statement, described the entire disputed property as Qabristan and even stated that the disputed houses stood on the land of the Qabristan. Clearly, D.W.1 never intended to admit that the houses stood on any portion of that land which had become the subject of a public waqf used as Qabristan by the Muslims in general. The admission made by D.W. 1 cannot, therefore, be held to establish the case put forward on behalf of the appellants that the entire land had become dedicated !is Qabristan. Similarly, in the statement of Shahbaj Khan in the year 1918 also, a loose description was given by saying that he lived in Chimte-ka-Bara and that it was Qabristan for the Muslim community. Similarly, in the statement of Shahbaj Khan in the year 1918 also, a loose description was given by saying that he lived in Chimte-ka-Bara and that it was Qabristan for the Muslim community. These admissions are, therefore, not of such a nature that they Can be held to bar the plea of the respondents that, at least, the portion, on which the buildings stand, was never part of the public waqf. 6. On the other hand, it appears that there is evidence which shows that the portion of the land over which the constructions stand was never treated as waqf property. There is admission by the appellants' own witnesses that even Mariam Bai mortgaged part of the property and sold it, and, yet, no objection was taken by the Muslim community. In fact, coven earlier, in the year 1916, two mortgage deeds had been executed in respect of some of the land which is now a part of the disputed property and those mortgages were also not challenged. The mortgaged land was described 'as being adjoining the Qabristan. These documents themselves clearly show that the entire land of Chimte-ka-Bara was not being used as a grave-yard. Then, there is the entry in the Khasra of Samvat 1936 (Ex. D. 3) which shows that this disputed land was divided into a number of portions described as Goshas. One portion was shown as Abadi, while 8 other portions were show as Qabristan. Thus, in the revenue records also, a distinction was made between the area covered by the Abadi and the area which constituted Qabristan. The High Court has further mentioned that the portion where there is a construction is distinct from the rest and that distinct marks show which piece of land is a burial ground and which is not. It appears that the High Court, when deciding the appeal, had before it some maps, one of which was produced on behalf of the appellants themselves. The finding that distinct marks show which piece of land is a burial ground and which is not could only be based on an inference drawn from the maps. Those maps have not been made a part of the paper-book before us. We have, consequently, to accept the view of the High Court that there are marks which distinguish between the burial ground and the land covered by constructions. Those maps have not been made a part of the paper-book before us. We have, consequently, to accept the view of the High Court that there are marks which distinguish between the burial ground and the land covered by constructions. It is thus clear that, though the disputed property may be bearing one single number in the revenue records, it is divided into various portions and portions which formed a part of the grave-yard are separately marked. These various pieces of evidence, thus, clearly support the view of the High Court that user as Qabristan is not established at least in respect of that part of the disputed land which is covered by constructions, and we cannot, therefore, see any ground for interfering with the decision given by the High Court on that basis. 7. The second point raised by learned counsel was that the respondents, who were Mutawallis of the Qabristan, hiving denied the title of the waqf and having claimed the entire property as their own. would necessarily have been removed and should not have been continued as Mutawallis The learned Judges of the High Court noticed the fact that it is admittedly a defunct Qabristan and the Municipal Committee has already fixed a different place for burial, so that, though the Qabristan is waqf property, it could not yield any income. In the circumstances no question of rendering accounts of the income could arise in future, and the respondents and their successors-in-interest, who had their residence close to the Qabristan, were the best persons to look after the Qabristan. It has not been shown to us that there is any other person who can look after the Qabristan better than the respondents. Further, the rights of the respondents have been clearly limited by the High Court by laying down that they will be prevented from making any private use of the Qabristan and they will also not be entitled to alienate the property in any manner adverse to the interests of the Muslim community. With whose limitations we do not consider that there was any necessity for the removal of the respondents from Mutawalli-ship and of searching for other suitable: Mutawallis. 8. In the circumstances, the appeal fails and is dismissed with costs.