JUDGMENT D.N. Jha, J. - This is plaintiff's second appeal directed against the judgment and decree passed by the Civil Judge, Barabanki dismissing their appeal and maintaining the judgment and decree passed by the trial court who had been pleased to dismiss the suit of the plaintiff. 2. During the pendency of this appeal the plaintiffs-appellants died and further proceedings have been prosecuted by their legal representatives. Likewise defendant No. 3 also died and his legal heirs have been brought on record. The case of the plaintiffs has been that they are the residents of Casba Zaidpur district Barabanki and they had been the Zamindar of that Casba. It was alleged that they were the owners of the land and Abadi which are in their possession. The Sakna in dispute has been their property. There was a grave of one Pir Panju in existence in the Sakna. The grave was constructed by their ancestors and a tamarind tree had been planted which is also in existence in that Sakna. The Sakna bears khasra abadi No. 876. In the earlier litigation between the plaintiff and defendants Nos. 1 and 2 the Sakna had been determined as plaintiff's property and the same had never been denied. Defendant without any right, title and interest over the Sakna threatened to take possession over it and therefore a suit was filed with a relief for permanent injunction restraining the defendants from interfering with their possession over the Sakna described in the Site-plan attached to the plaint. 3. The suit was resisted by the defendants and it was alleged that the Sakna is a Dargah of one Pir Panju from a very long time and that it was a wakf property and the plaintiffs having nothing to do with it were unnecessarily contesting the suit. It was also asserted that a Mela was held every year in the memory of great saint Pir Panju and people offer Chadar. They asserted that plaintiffs had never been in possession of the land in dispute within the period of limitation. The Wakf Board was a necessary party and had not been impleaded nor any notice had been given. 4. The learned Munsif held that the plaintiffs are not the owners of the land in dispute and that it was a wakf property. The Wakf Board was a necessary party and had not been impleaded nor any notice had been given. 4. The learned Munsif held that the plaintiffs are not the owners of the land in dispute and that it was a wakf property. He further held that the plaintiffs have not been in possession of the land in dispute within the period of limitation and as such the suit was barred by time. On these findings he dismissed the suit with costs to the defendants. Plaintiffs feeling aggrieved went up in appeal. The learned lower appellate court held that the plaintiffs were the owners of the disputed land but it was a wakf property. He agreed with other findings of the trial court and dismissed the appeal preferred by the plaintiffs. This is how this second appeal has been brought before this court by the plaintiffs. 5. I have heard learned counsel for the appellants at some length. In spite of service none appeared on behalf of the respondents. The learned counsel for the appellants attacked the findings recorded by the courts below to the effect that the suit property was wakf asserting that there was no dedication nor was there any delivery of possession. The learned counsel therefore argued that the property could not be treated as wakf property. The argument has to be appreciated in the light of the facts and circumstances of each case. In the instant case the land in dispute as described in the plaint measures 13 in length and 8 in width with a grave of saint Pir Panju existing on it. There is an Imli tree which spreads shade over the grave. There is no dispute about these facts. It is also not disputed that the grave of saint Pir Panju has been in existence from before 1904. The trial court, as observed above, recorded a finding that the plaintiffs were not the owners nor were they in possession of it. However, the appellate court held that he was the owner of the land in suit but the suit property was wakf. The same view regarding the wakf had been expressed by the trial court. The trial court, as observed above, recorded a finding that the plaintiffs were not the owners nor were they in possession of it. However, the appellate court held that he was the owner of the land in suit but the suit property was wakf. The same view regarding the wakf had been expressed by the trial court. The learned counsel argued that there was a clear cut finding of the appellate court that the plaintiffs were the owners and that being so the court had to decide whether the suit property could be termed as a wakf by reason of fact that there had been no dedication and there was no actual delivery of possession. In support of his contention he placed reliance on the case of Mohd. Imdad Ullah v. Mt. Bismillah ( AIR 1946 All 468 ): (1947 All LJ 65). In this case Bennett. J. as he then was speaking for the court observed:- "It is essential to the validity of a wakf that the waqif should actually divest himself of the property to be made wakf. A mere declaration of intention by itself would not constitute dedication." The learned counsel derived support to his argument in view of this observation. The learned counsel however lost sight of the next observation made by the court which reads as under;- "The dedication need not, however, be express but may be inferred from the facts or the circumstances." It may be mentioned that in the case of Nazira v. Sukhdarshan Lal. (1936 All LJ 651) a Division Bench held.- "Where a grave of a Mohammedan exists on a piece of land, the presumption is that, that part of the site on 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 and should be considered as wakf land in which the members of the Mohammedan community would be interested and to which they would be entitled to have access." In my opinion, this is a complete answer to the question canvassed by the learned counsel for the appellants. In the instant case, the measurement of the land in dispute are 13 in length and 8' in width. The measurement of the land include a grave constructed on it. In the instant case, the measurement of the land in dispute are 13 in length and 8' in width. The measurement of the land include a grave constructed on it. In my opinion, therefore, land can be presumed to be a wakf. The piece of land is so small that I am unable to accept the contention of the learned counsel for the appellants that apart from the grave rest of the land should be excluded from being termed as a wakf property in a land measuring 13' x 8' with a grave at least of 6' x 4' there is hardly any piece of land left to be excluded. This area has been in existence from before 1904 as appears from the evidence. There is therefore not much substance in the submission of the learned counsel for the appellants that in absence of dedication and delivery of possession no presumption of creation of a wakf could be drawn. In my opinion, there are authorities on the Mohammedan Law from which such a presumption can be drawn. The law has been stated in Ameer Ali's Mohammedan Law (Page 405 edition 4) as under:- "According to Abu Yusuf, a dedication to any object of utility is effectuated by the kawl or word of the wakif, as in the case of a mosque. For example, when a person erects an aqueduct for Mussulmans, or an inn for the occupation of travellers, or a caravanserai or constitutes his land into a cemetery, the dedication becomes complete upon the declaration of the wakf, and all his right of property ceases therein, 'According to Mohammed, it abates when people have used the aqueduct or have occupied the inn or caravanserai, or (have been) buried in the cemetery, and it is sufficient if one person do so. The rule is the same as to wells and cisterns, and if they are delivered to a superintendent, the dedication is valid in like manner. It is stated in the Mobsut that the Fatwa is according to the Disciples by general consensus, in other words, the dedication may be effectuated in either way, viz., by the actual declaration of the wakif or by delivery, in other words, by the use of the place by a single person." 6. It is stated in the Mobsut that the Fatwa is according to the Disciples by general consensus, in other words, the dedication may be effectuated in either way, viz., by the actual declaration of the wakif or by delivery, in other words, by the use of the place by a single person." 6. A dedication inter vivos is complete and irrevocable as against the endower, either when a civil court has so decreed, or when possession has been delivered by the endower to the Mutawalli, accompanied by a declaration of the trusts of the endowment. 7. The whole question was exhaustively examined by a Bench of the Oudh Chief Court in AIR 1936 Oudh 213 (FB) in which dissenting from the Allahabad view and finding that the authority of Abu Yusuf prevails generally in India, it was held that under the Hanafi law mere declaration by the wakif is sufficient to complete a wakf and it is not necessary that possession should be delivered to the mutawalli. As regards the manner and proof of dedication, it was said in (1910) 7 All LJ 1095 at p. 1120 that an oral dedication may be inferred from repute and facts which lead necessarily to the inference that there was such a dedication; and it was also observed by their Lordships of the Privy Council in (1924) 77 Ind Cas 1009 at p. 1013: ( AIR 1922 PC 384 at p. 389) that dedication may be inferred from facts although the word wakf is not shown to have been used. The Supreme Court had the occasion to consider various authorities and in the case of Syed Mohd. S. Labbai v. Mohd. Hanifa ( AIR 1976 SC 1569 ) Hon'ble Fazal Ali, J. speaking for the court summarised the law on the subject as under (at p. 1590):- "In order to create a valid dedication of a public nature, the following conditions must be satisfied :- (1) that the founder must declare his intention to dedicate a property for the purpose of a mosque. No particular form of declaration is necessary. The declaration can be presumed from the conduct of the founder either express or implied; (2) that the founder must divest himself completely from the ownership of the property, the divestment can be inferred from the fact that he had delivered possession to the Mutawalli or Imam of the mosque. No particular form of declaration is necessary. The declaration can be presumed from the conduct of the founder either express or implied; (2) that the founder must divest himself completely from the ownership of the property, the divestment can be inferred from the fact that he had delivered possession to the Mutawalli or Imam of the mosque. Even if there is no actual delivery of possession of mere fact that members of the Mohammedan public are permitted to offer prayers with azan and ikamat, is sufficient to hold that the wakf is complete and irrevocable; and (3) that the founder must make some sort of a separate entrance to the mosque which may be used by the public to enter the mosque." The existence of the grave from such a long time clearly shows that the ancestors of the plaintiffs had allowed the saint to be buried. Therefore, it would imply the intention of dedication. The grave remained there uninterruptedly and Urse were being performed on the every Bakreed day. That being so, therefore, presumption will be inferred. The delivery of possession would also be inferred as the saint was laid at rest in this very piece of land. The submission of the learned counsel for the appellants therefore, in my opinion, has no merit and is accordingly rejected. 8. The learned counsel next argued that the land may be presumed to be a waqf property. The Imli tree standing on it certainly would belong to the owner, as the plaintiffs have been held to be the owners of the land, therefore, the decree for the Imli tree at least could be passed. It is well settled that the standing tree goes by the land. I have already discussed above that there could be a presumption regarding the dedication of the private property of the owner as waqf land but certainly no such presumption could be drawn with respect to the tree standing on it. There is nothing on record to show that Imli tree had been dedicated to waqf. The plaintiffs, therefore, being the owners of the land would be entitled to the tree. There is nothing on record to show that Imli tree had been dedicated to waqf. The plaintiffs, therefore, being the owners of the land would be entitled to the tree. I would however like to observe that since it transpires from the evidence that this Imli tree provides shade on the grave, therefore, plaintiffs would be entitled to enjoy its fruit and collect the dry branches but they will not be entitled to remove the branches in such a manner so as to deprive the grave of the saint Peer Panju of the requisite shade. 9. No other point has been pressed. 10. In view of the aforesaid discussion, the appeal is partly allowed and the judgment and decree passed by the lower appellate court treating the Imli tree as a waqf property is set aside and the plaintiffs are declared as owners of the Imli tree and the defendants are restrained from interfering with the possession of the plaintiffs. The plaintiffs, as observed above, will not cut away the Imli tree. The rest of the decree passed by the appellate court with respect to the land being waqf is maintained. 11. Since no resistance has been put in on behalf of the respondents. I direct the parties to bear their own costs.