JUDGMENT P.N. Bakshi, J.- Two suits were filed by the State of Uttar Pradesh, Nos. 178 of 1968 and 179 of 1968. One suit was filed against Rajab Ali and his son Nasir and the other against Baqar Ali brother of Rajab Ali. The plaintiff's allegations were that these defendants had taken forcible possession over the land belonging to the State of Uttar Pradesh in the year 1962 and had raised illegal constructions thereon in the nature of a shop. They were carrying on their business in this premises. It was prayed by the plaintiff that a decree be passed against the defendants for possession after demolition of the constructions. 2. The further allegation of the plaintiff was that in this plot quarters of the medical officers had existed and the rest of the plot was being utilised in connection with the hospital which was standing thereon. It appears that prior to the institution of the suit proceedings under Section 133 Criminal Procedure Code had also been initiated and the criminal court had directed the parties to seek redress in the appropriate civil court, hence the present suit. The defendants raised common pleas in both these cases. They denied that these constructions lay in plot nos. 1028, 1027 and 1026. Their evidence inter alia was that the shops and the construction alleged to be made by them had existed from the time of their ancestors. They also set up a plea of adverse possession. It was further alleged that on the land in suit there existed a 'Mazar' of Maqdoom Shah Saheb and the said land was appurtenant to the 'Mazar' on which there existed several graves and the State of Uttar Pradesh has no title thereto ; pleas of limitation were also raised. 3. The trial court decreed both the suit. He found that the construction of the defendants lay in plot no. 1027; that the State of Uttar Pradesh was not the owner of the land over which Kothri/Shops of the defendant-respondents existed. He also held that the site of the aforesaid construction was appurtenant to the 'Mazar' of Maqdoom Saheb and the State of Uttar Pradesh had no rights therein. As a matter of fact the trial court held that the land in question was dedicated property and the plaintiff was not its owner. He also held that the site of the aforesaid construction was appurtenant to the 'Mazar' of Maqdoom Saheb and the State of Uttar Pradesh had no rights therein. As a matter of fact the trial court held that the land in question was dedicated property and the plaintiff was not its owner. Aggrieved thereby the State of Uttar Pradesh filed two appeals which have been allowed by the District Judge, Fatehpur by his judgment and decree dated the 20th November, 1964. Apart from the other findings recorded by the appellate court it has also been held by him that the constructions in question lie on plot no. 1027, which was the private graveyard of Maqdoom Shah as members of his family were buried there. Aggrieved by the aforesaid decision Baqar Ali, defendant in suit no. 179 of 1968 has filed the instant appeal in this court. Rajab Ali has yielded to the decree passed by the lower appellate court. 4. I have heard learned counsel for the parties at considerable length and have also carefully perused both the impugned orders. I have also been taken through the relevant portion of the evidence on record. Appellant's counsel has argued that the finding of the District judge that the land in question over which the disputed construction existed was the private graveyard of Maqdoom Shah who had acquired customary right to bury dead bodies of his family on this land, is a finding which has no basis in evidence. He has submitted that both the trial court and the lower appellate court have agreed that the evidence on record established the existence of a graveyard on plot no. 1027. The distinction that the lower appellate court has drawn in holding that the said graveyard was a private graveyard and not a public graveyard is wholly speculative and conjectural. On the other hand the counsel for the State has argued that there was ample justification for the finding arrived at by the lower appellate court. In order to test the correctness of this submission it was necessary for me to go into the evidence on the record. I have perused the statement of P.W. 1, P.W. 2 and D.W. 1, D.W. 2 and D.W. 3. from the examination of the evidence of these witnesses there can be no doubt that the 'Mazar' of Maqdoom Shah exists on this plot No. 1027. I have perused the statement of P.W. 1, P.W. 2 and D.W. 1, D.W. 2 and D.W. 3. from the examination of the evidence of these witnesses there can be no doubt that the 'Mazar' of Maqdoom Shah exists on this plot No. 1027. There can further be no doubt that there are large number of graves existing on this plot to the West and the north of 'Mazar. Some of these are 'Packa' while others are 'kachcha' grave yards. There can also be no doubt that on the north-west of the disputed construction on the land in dispute there are more graves. The evidence on record also discloses that the father and the grand-father of D.W. 3 (Baqar Ali) were also buried on this land There is evidence also to indicate that Baqar Ali did not belong to the family of Maqdoom Shah. All this evidence has been given a Good-bye by the lower appellate court, which leads to the inevitable conclusion that plot No. 1027 has got on it several graves which had been built thereon from time to time of persons who do not belong to the family of Maqdoom Shah. The evidence on record also indicates that ceremonies of 'Urs.' and laying of 'Chadar' are also performed on that 'Mazar'. There is no evidence on the record to indicate that the grave which existed on this plot of land are the graves of the family members of Maqdoom Shah. In the face of this evidence I have no hesitation in coming to the conclusion that plot No. 1027 is a public graveyard it has been held by the Supreme court in Mohd. S. Labbai v. Mohd. Hanif, (AIR 1976 SC 1969), that in order to prove that a graveyard is a public graveyard there should be evidence to show that a large number of members of Mohammedan community buried their corpses from time to time in that graveyard. Once this is proved the court will presume that the graveyard is a public one. In my opinion, therefore, the finding of the lower appellate court that the graveyard in question is a private graveyard is an illegal and erroneous finding unsupported by the evidence on record and based upon speculation rather than legal considerations. 5. Once this is proved the court will presume that the graveyard is a public one. In my opinion, therefore, the finding of the lower appellate court that the graveyard in question is a private graveyard is an illegal and erroneous finding unsupported by the evidence on record and based upon speculation rather than legal considerations. 5. Having thus come to the aforesaid conclusion the necessary corollary would be that even if the defendants have not succeeded in establishing the title set up by them yet, they can only be dispossessed by another person having a better title to the property in question, Plot No. 1027 having been held to be a public graveyard does not vest in the State of Uttar Pradesh and, therefore, the suit filed by it cannot succeed. 6. I find that it has been pleaded by the defendant in paragraph 14 of the written statement that apart from Mazar of Maqdoom Shah there existed graves on the land. The issue No. 6 framed by the trial court in this connection was to the following effect : "Whether the land in suit appurtains to the Mazar of Maqdoom Shah and to the graveyard around it as contended in paragraphs 13 and 14 of the written statement dated 12-3-1969 ? If so, its effect?". 7. Both the parties were, thus aware that they had to lead evidence on this question and they have led evidence and cross examined the witnesses on this aspect of the matter. Thus, it cannot be said that any part had been taken by surprise. It is, therefore not necessary to remand this case to the court below for a decision on the question and the finding which has been recorded by the trial court and the lower appellate court can be well tested in the second appeal without a remand. 8. This second appeal is hereby allowed and the plaintiff's suit for possession and demolition is hereby dismissed with costs.