JUDGMENT Deoki Nandan, J. - This is a defendants second appeal from a decree passed by the lower appellate court which restrained him perpetually from interfering in the plaintiffs right or burial of dead bodies of the family members and descendants on the land in suit and also from cutting the bamboo clumps and trees standing thereon. The parties belong to the same family and the land in suit is occupied not only by some graves but also by their residential houses and trees. 2. According to the plaintiffs, the land was given by the Zamindar to the Shah family for using it as a graveyard ; and since time immemorial, the dead bodies of the members of the family were buried therein and the trees and the bamboo clumps thereon were used in connection with burial of the dead. It was then said that in a part of the graveyard; on account of shortage of the land, the ancestors of some of the plaintiffs constructed their houses and the plaintiffs were living in them ; that the defendant interfered with the burial of the dead bodies of the members of the family of the plaintiffs who had even to take the help of the police and on 15th July, 1958, and the defendant even cut down a Neem tree. It is un-disputed that the defendant also has his residential house on the land and all the parties belong to the same Shah family. The trial court dismissed the suit on the finding that the land was held as a grave by the defendant and was taking the shape of Abadi. The graves that were already there could, of course not be disturbed, but the vacant land, including the Seban of the parties and the defendants grove could not be used as a graveyard merely because of the existence of a few graves of the members of the family residing on the land. The finding that the defendant held the laud as grove was arrived at on the basis of the entries in the revenue records. The land was not entered as a graveyard and as already stated above, the parties had their residential houses thereon and were living in them. 3. The finding that the defendant held the laud as grove was arrived at on the basis of the entries in the revenue records. The land was not entered as a graveyard and as already stated above, the parties had their residential houses thereon and were living in them. 3. The lower appellate court took the view that the trial court did not discuss the oral evidence from which it was established that the land in suit was a family graveyard. After discussing the evidence of the plaintiff, the lower appellate court observed that the evidence of the first defendant Ali Hussain Shah himself revealed that the land in dispute was a family graveyard. His statement, as recited in the judgment of the lower appellate court was that his father migrated to village Behari where the land is situate, in the year 1921, that he constructed his house in 1934, at that time there were 10 graves of his family members, but none of them were pucca and that one of the pucca grave was built in 1948. He could not say as to whose grave it was. He gave the names of his 9 relatives who were buried in the land. Most of them died after 1934. According to the lower appellate court, that showed that persons other than those belonging to the branch of the defendant were buried in the land in dispute and that showed that the land in suit was used as a family graveyard of the parties. 4. The dispute in the present case was, as observed by the lower appellate court, not that no one could bury his dead in the land. The dispute was whether the plaintiffs could bury their dead in the land. According to the lower appellate court "it looks impossible that they will have no right of burial". The reasons given by the lower appellate court for this conclusion are that the plaintiffs, have their houses on the land in suit and are living therein. According to the lower appellate court there was not much material on the record from which the plaintiffs case "could have been negatived", that the learned Munsif "has not taken pains to dive deep into the evidence", and that "he has been led mainly by entries in the village records and that there are houses in the land in dispute". According to the lower appellate court there was not much material on the record from which the plaintiffs case "could have been negatived", that the learned Munsif "has not taken pains to dive deep into the evidence", and that "he has been led mainly by entries in the village records and that there are houses in the land in dispute". According to the lower appellate court these facts do not interfere with the land in dispute being a graveyard because according to the Commissioners report along with the map indicate that in the land not covered by houses, graves were scattered throughout and there were "18 prominent graves". 5. Learned counsel for the defendant-appellant urged that the lower appellate court had ignored the documentary evidence altogether and had wrongly placed the burden of proof on the defendant. Having heard learned counsel for the parties, what strikes me most is the fact that all the parties to the suit belong to the same Shah family and they claimed it to be their family grave yard. None of them claimed it to be a public graveyard. In the very nature of things one can have a family graveyard only on laud belonging to the family. Though the land was recorded as the defendants grove and some of the present plaintiffs had even filed a suit in the revenue court under section 59/61 which had been withdrawn, vide decree dated 30th September, 1948 (Ext. A-17). There is quite a lot of documentary evidence on the record and quite a number of maps. They all show the existence of the houses, the graves, and the trees on the land in suit. The trial court has discussed the evidence in some detail and has come to the conclusion that land belongs exclusively to the defendant. It is not possible to say on the basis of the oral evidence that the land in suit was not held by the defendant-appellant as a grave, but at the same time in view of the fact that he belongs to the Shah family to which the plaintiffs belong and in view of the fact that the plaintiffs have their houses and Sehan on the land in suit, the defendant cannot very well object if the plaintiffs bury their dead in some vacant part of the land near their own houses. Of course so far as the cutting of the tree was concerned, which was the immediate cause of the suit, I do not see how the plaintiffs can restrain the defendant from cutting away any tree if the land was held by him as a grove before the abolition of Zamindari, unless of course they proved that the tree which was cut away or which is sought to be cut away was owned by them. Nevertheless it appears clear to me that the relief claimed by the plaintiffs cannot be granted in the form in which it has been claimed. I can best illustrate it by quoting the reliefs in the language in which it has been claimed. " cbLrdjkj oks crtcht bl vHkz ds fd vkjkth futkbZ egnwnk tSy vtukfy'k gktk tehu dfczLrku Qjhdsu tks [kkunku QjhdSu eqdnek gktk dh gSA fdlh Qjh dks nj[r ;k [kwVh okl ekSdwvk dfczLrku etdwj dks rugk dkVus dk gd gkfly ugha gSA tfj; gqdqe bErukbZ nokeh eqn~nkysg dks eeuwv fd;k tkos fd og fdlh nj[ku ekSdwvk vkjkth dfczLrku etdwj dks u dkVs vkSj nj[r uhe ftldks dkV fy;k gS uj;os vkSj dCtk n[ky eqn~nbZ;ku cxjt nQukus eqnkZ esa etkfger u djsaA " 6. This relief cannot be granted because the whole of the land in suit is not a Qabristan. It is covered by the houses of the parties and there are some scattered groves on part of the land only. The whole of the vacant land has not been claimed by the plaintiffs to be the Sehan of their houses or appurtenant thereto. The land was recorded as the grove of the defendant in the revenue records. The trees on the land could not, therefore, be assumed to belong to the plaintiffs. The land cannot, therefore, be declared to be a Qabristan or a graveyard. The whole of the land does not belong to the plaintiffs. They cannot, therefore, bury their dead on any part of the land particularly the part covered by the defendants house and Sehan. A declaration or injunction could only be granted in respect of a specific area of the land. It is clear that it could not be granted in respect of the whole of the land shown by the boundaries at the foot of the plaint. A declaration or injunction could only be granted in respect of a specific area of the land. It is clear that it could not be granted in respect of the whole of the land shown by the boundaries at the foot of the plaint. Since it is not open to the Court to make out a new case for the parties, no relief could be granted to the plaintiffs even if it were found that they had buried the dead bodies of the members of their family on certain parts of the land without any objection from the defendant. The rule that if there are graves existing on a part or portion of a plot of land the whole of that plot could be deemed to be a graveyard cannot be applied on the facts and the circumstances of the present case particularly in view of the existence of the houses and Sehan of the parties on substantial parts of the land. Under the circumstances since it is not clear as to which part of the land in suit is sought to be used as a grave yard, and since it has not been probed as to which of the trees, if any, belong to the plaintiffs.no injunction could be granted in the present case in spite of the existence of graves of the members of the family of the plaintiffs on certain parts of the land in suit. 7. In the result, the appeal succeeds and is allowed with costs. The judgment and decree of the lower appellate court are set aside and the decree of the trial court dismissing the suit is restored with costs throughout.