JUDGMENT 1. THIS second appeal is at the instance of the plaintiffs in a suit for declaration and injunction and is directed against the judgment and decree dated August 18, 1983 passed by the learned Subordinate Judge, Katwa in Title Appeal No. 78 of 1982 thereby modifying those dated May 8, 1982 passed by the learned Munsif, 1st Court, Katwa in Title Suit No. 188 of 1975. 2. THE aforesaid suit was filed by the plaintiffs by taking leave under order 1 Rule 8 of the Code of Civil Procedure for declaration that the local Muslim population have the right to use the suit property as public graveyard and for permanent injunction restraining the defendants from creating any disturbance. The case made out by the plaintiffs was as follows : The local Muslim population of the area had been using the suit property as public graveyard for more than 20 years without any objection from any side and had thus acquired prescriptive right of easement over the property. The said property consisting of three khatians although has been recorded in the name of predecessors of the defendants in both C. S. and R. S. Record of Right but in C. S. Settlement map the suit property has been shown as graveyard. In the Khatian No. 2, the property has been mentioned as one for the use of Muslim people. According to the plaintiffs, in the C. S. and R. S. Record of Right, the suit property has been wrongly recorded. However, in view of C. S. map the said recording is patently wrong. In paragraph 3 of the plaint, the plaintiffs specifically stated that the defendants claiming themselves to be the owners of the property have illegally made cultivation on the northern, eastern and southern side of the property. Hence, tine prayer for declaration and injunction. The aforesaid suit was contested by the respondents by filling separate written statements denying the material allegations made in the plaint. In paragraph 5 of the written statement, the defendant No. 1 to 4 specifically stated that in the absence of State of West Bengal no effective decree could be passed. Further, in paragraph 6, those defendants look the plea of limitation. The further defence of those defendants was that they are the owners and in possession of the said property. In paragraph 5 of the written statement, the defendant No. 1 to 4 specifically stated that in the absence of State of West Bengal no effective decree could be passed. Further, in paragraph 6, those defendants look the plea of limitation. The further defence of those defendants was that they are the owners and in possession of the said property. The state of West Bengal "acquired" the property and thereafter executed a case deed of 20 years in favour of the defendants. Over and above, the defendants have also purchased the property from the recorded owners so that on the expiry of the requisition they can become full-fledged owner of the property. 3. AT the time of hearing of the aforesaid suit, ten witnesses were examined on behalf of the defendants. 4. THE learned Trial Judge believed the witnesses for the plaintiffs and found that evidence given by D. W. 1 and D. W. 2 could not be believed. As regards other eight witnesses examined by defendants, the learned trial Judge did not at all consider their evidence on the sole ground that they are Hindu by religion and as such they were bent upon to give evidence against the Muslim people. Ultimately the learned Trial Judge decreed the suit thereby holding that the suit property was a public graveyard for the purpose of the Muslim people of the locality. Being dissatisfied, some of the defendants preferred an appeal before the learned First Appellate Court and by the, judgment and decree impugned in the instant second appeal, the learned First Appellate Court set aside those passed by the learned Trial Judge and modified the decree to the effect that only western side of the suit property was declared to be a public graveyard for the Muslim people of the locality but such prayer was rejected in respect of the eastern, southern and northern sides of the suit property. 5. BEING dissatisfied, the plaintiffs have preferred the instant second appeal. 6. MR. 5. BEING dissatisfied, the plaintiffs have preferred the instant second appeal. 6. MR. Banerjee, the learned advocate appearing on behalf of the appellants has criticized the judgment of the learned First Appellate Court on the ground the learned First Appellate Court below erred in law in not at all taking into consideration the oral evidence adduced by either of the parties on the ground that the plaintiffs' witnesses were all supporters of CPI (M) Party whereas the defendants witnesses were all supporters of Congress Party. According to Mr. Banerjee, the aforesaid fact, even if it is true, cannot be a ground for rejection of the entire oral evidence. Mr. Banerjee further contends that in view of the fact that in C. S. map the entire suit property has been shown as graveyard, the C. S. Record of Right was apparently erroneous. According to Mr. Banerjee, the entry made in revisional Record of Right was totally erroneous as will appear from the fact that about 60 years ago, the Muslim people of the locality used to bury their dead on the eastern, southern and northern sides of the suit property. Mr. Banerjee toy relying upon the decision of the apex Court in the case of Syed Mohd. Salie Labbai vs. Mohd. Hanifa and Ors. reported in AIR 1976 SC 1569 contends that once a property has been shown to be a public graveyard it vests in public and constitutes a wakf and it cannot be divested even by non user but will continue to be so whether it is used as such or not. 7. MR. Roychowdhury, the learned advocate appearing on behalf of the respondents has on the other hand contended that in the absence of state of West Bengal, the suit was not maintainable and no effective decree declaring the suit property to he a public graveyard could be passed in a proceeding where Order 1 Rule 8 of the Code of Civil Procedure was restored to. 8. MR. Roychowdhury next contends that in both C. S. and R. S. Record of Right the suit properly having been shown not as public graveyard but as property of the predecessors of the defendants, the recording in the C. S. map showing the property as graveyard cannot raise a presumption of existence of a graveyard. According to Mr. 8. MR. Roychowdhury next contends that in both C. S. and R. S. Record of Right the suit properly having been shown not as public graveyard but as property of the predecessors of the defendants, the recording in the C. S. map showing the property as graveyard cannot raise a presumption of existence of a graveyard. According to Mr. Roychowdhury, it is the recording in the Record of Right that creates a presumption of correctness and the appellants had failed to rebut the said presumption. Mr. Roychowdhury further contends that in the absence of any positive satisfactory evidence showing that in the last 40 years there has been any burial in the eastern, northern and southern parts of the suit property, the learned First Appellate Court below rightly rejected the claim of the appellants in respect of these portions even it is accepted for the same of argument that there was such graveyard some sixty years ago. 9. MR. Banerjee in reply to the aforesaid submissions of Mr. Roychowdhury contends that the plea as to non-joinder of the State of west Bengal as necessary party was abandoned before the learned Trial judge and even before learned First Appellate Court, the said point was not raised and as such the respondent was precluded from raising the said question in this second appeal. 10. IN support of such contention, Mr. Banerjee relied upon the following decisions : (a) N. Jayaram Reddi and Anr. vs. The Revenue Divisional Officer and land Acquisition Officer; AIR 1979 SC 1393 . (b) Premchand Manikchand vs. Fort Gloster Jute Manufacturing limited; 64 CWN 103. (c) Dwarikanath Chowdhury and Ors. vs Anil Chowdhury and Ors., 1999 (1) CLT (HC)14. Mr. Banerjee further relies upon an unreported decision of a Division bench of this court in the case of shib Shankar Kolay vs Gopal chandra Hazra being S. A. No. 1037 of 1979 disposed of by Anil K. Sen and S. N. Sanyal, JJ. on February 11, 1983 for the purpose of showing that in this case State of West Bengal is not a necessary party. 11. AS regards the plea of non-joinder of State of West Bengal as necessary parry it appears that in written statement, specific plea was taken and accordingly an issue of that effect viz. Issue No. 4 was framed. it is apparent from the judgment of the learned Trial Judge that Issue nos. 11. AS regards the plea of non-joinder of State of West Bengal as necessary parry it appears that in written statement, specific plea was taken and accordingly an issue of that effect viz. Issue No. 4 was framed. it is apparent from the judgment of the learned Trial Judge that Issue nos. f, 2, 3 and 4 were not pressed and accordingly the learned Trial judge initially decided those issues in favour of the plaintiffs. But while issues No. 5, 6, 7, 8 and 9 were considered together, it is manifest from the decision of the learned Trial Judge itself that it was specifically contended on behalf of the defendants that in the absence of State of west Bengal, the suit was not maintainable and the State of West Bengal was not a necessary parry but was merely a proper party. Therefore, i do not find any substance in the contention of Mr. Banerjee that issue as to non-joinder of State of West Bengal as necessary party was abandoned before the learned Trial Judge. In the judgment of the First appellate Court below there is however no indication as to whether such issue was pressed or not 12. MR. Roychowdhury appearing on behalf of the respondents has drawn my attention to ground No, 4 taken in the Memorandum of Appeal before the learned First Appellate Court below wherefrom it is clear that such ground was specifically taken. It will be pertinent to mention here that the learned First Appellate Court in this case has not recorded any statement as to whether the said ground was actually pressed. But the fact remains that there is no discussion in the body of the judgment on the aforesaid question and the learned first appellate court had allowed the appeal on merit. In the case of premchand Manikchand (supra), relied upon by mr. Banerjee, the learned Trial Judge specifically recorded that the learned counsel for the appellant abandoned all the grounds taken in petition except grounds no. (e) and (f ). But having lost before the learned Trial judge, the appellant wanted to argue one of the grounds given up before the learned Trial Judge. Under the aforesaid circumstances Chakravarti, CJ. Banerjee, the learned Trial Judge specifically recorded that the learned counsel for the appellant abandoned all the grounds taken in petition except grounds no. (e) and (f ). But having lost before the learned Trial judge, the appellant wanted to argue one of the grounds given up before the learned Trial Judge. Under the aforesaid circumstances Chakravarti, CJ. speaking for the Division Bench held that when a party has raised a ground and thereafter deliberately abandoned it, he should not be allowed to raise it again before the appellate court even if the said ground is one of law. his Lordship however hastened to add that this was not a case where the learned Counsel merely omitted to urge certain points taken in the petition but the learned Counsel expressly abandoned certain points and the learned Trial Judge placed that fact on record. 13. I am however not prepared to accept the preposition of law laid down by Chakravarti, CJ. as a sound one. In my view, the aforesaid principle applies to a ground based on fact or mixed question of law and fact but cannot have any application to a pure question of law going to the root of the matter if for deciding such a point no new investigation of fact is necessary. It appears that their Lordships while deciding the aforesaid case took no notice of an earlier Division Bench decision of this court in the case of Ramsaran Singh vs. Khakhan Singh and Ors. reported in 11 CWN 340. In the said case, the Division Bench by relying upon the decision of Judicial Committee in the case of Beni Pershad Koeri vs. Dhudnath Roy reported in ILR 27 Cal 156 specifically held that omission of a counsel either to argue a question of law, or his abandoning a question of law is not sufficient to disentitle an appellate court to go into the question. The view taken by Chakravarti, CJ. in the aforesaid decision is also not in conformity with the recent decision of the Apex Court in the case of Union of India and Ant vs. Babu Singh and Ors. The view taken by Chakravarti, CJ. in the aforesaid decision is also not in conformity with the recent decision of the Apex Court in the case of Union of India and Ant vs. Babu Singh and Ors. reported in 1996 (1) SCC 477 where the Apex Court permitted the appellant to raise a pure question of law which conceded by its counsel before High Court by reiterating the age-old proposition of law that wrong concession made by a counsel on a "question of law cannot bind the party. Therefore, I hold that the decision in Premchand Manikchand (supra) having been given in ignorance of a contrary earlier Division Bench as well as Privy Council decision has no binding effect as a precedent. 14. IN the case of N. Jayaram Reddi and Anr. (supra), two cross appeals were filed before High Court against a common judgment by the rival parties. The appellant of one of such appeals having died, his heirs were substituted as appellants. But in the other appeal preferred by the government, the heirs of the deceased party who was respondent were not substituted. Both the appeals were heard analogously and the heirs of the deceased party did not raise any objection before the High Court complaining abatement of the appeal preferred by Government. After the appeal preferred by the Government was allowed on merit, the heirs of the deceased party took a plea before the Apex Court that the government's appeal had abated as a whole before High Court. Under the aforesaid circumstances, Singhal. J. was of the opinion that such question having been abandoned before High Court cannot be raised before the Apex Court. On the other hand, Desai, J. the other learned Judge of the Bench was of the opinion that in view of substitution of the heirs in the other appeal, the appeal preferred by the Government could not abate as the principle of law that substitution in a cross-objection amounts to automatic substitution in the main appeal will equally apply to cross-appeals. In my opinion, the view taken by Singhal, J. is in no way in conflict with the subsequent decision of the Apex Court in the case of Union of India vs. Babu Singh reported in 11996 (1) SCC page 477. 15. In my opinion, the view taken by Singhal, J. is in no way in conflict with the subsequent decision of the Apex Court in the case of Union of India vs. Babu Singh reported in 11996 (1) SCC page 477. 15. MOREOVER, even if a court illegally sets aside abatement of a suit and then passes a decree, in an appeal preferred against such decree, an aggrieved person cannot challenge the order setting aside abatement by taking aid of section 105 of the code of Civil Procedure because such illegal order setting aside abatement of suit does not affect the decision of the case on merit enabling the appellate court to set aside such order. (See Md. Nuru Amin vs. Monohar Saran reported in AIR 1925 Cal. 473; maiyarjan Bibi and Anr. vs. Abdul Sekh reported in AIR 1933 Cal 498 ). In view of the aforesaid position of law, Singhal, J. did not permit the appellants to raise such a question before appellate court when those appellants were very much there on record in the other appeal. Therefore, the said decision of Singhal, J. is of no avail to Mr. Banerjee's client. 16. IN the case of Dwarikanath Chawdhuri (supra), a Division Bench consisting of S. K. Mookherjee and G. R. Bhattacharjee, JJ. by relying upon die decision of Premchand Manikchand (supra) (wrongly referred to in the decision as Haradhan vs. Godhan Sk. although reference is correctly given as 64 CWN 103) and of N. Jayaram Reddi (supra) held that even a pure question of law, if abandoned before court below, cannot be raised before an appellate court. I have already indicated that the decision of premchand Manikchand was given in ignorance of an earlier Division bench decision in case of Ram Saran Singh reported in 11 CWN 340 and of that of Judicial Committee in case reported in ILR 27 Cal 156 (P. C.) and as such had no binding effect as precedent. For the same reason, the latest Division Bench decision in the case of Dwarikanath Chowdhuri (supra) cannot be followed. When there are conflicting decisions of two different Division Benches of this count and the latter has been given in ignorance of the former, the earlier one prevails. [see Bagala Sundari vs. Prosanna, reported in 21 CWN 375 at 377 (D. B.) Kasem Ali vs. State of West Bengal, reported in 1976 (2) CLJ 232]. When there are conflicting decisions of two different Division Benches of this count and the latter has been given in ignorance of the former, the earlier one prevails. [see Bagala Sundari vs. Prosanna, reported in 21 CWN 375 at 377 (D. B.) Kasem Ali vs. State of West Bengal, reported in 1976 (2) CLJ 232]. Over and above, the decision given in the case of Dwarikanath chowdhury (supra) was passed by taking no notice of the Apex Court's decision in the case of Union of India and Anr. vs. Babu Singh and Ors. reported in 1996 (1) SCC page 477 by which the Apex Court impliedly approved the earlier Division Bench decision of this Court in the case of Ram Saran Singh (supra ). Therefore, with great respect to the learned judges of the aforesaid two Division Benches in the cases of Premchand manikchand (supra) and Dwarikanath. Chowdhury (supra), I am unable to follow those decisions. 17. THEREFORE, on consideration of the aforesaid decisions and the materials on record I am of the view that the objection as to non-joinder of necessary parry was not specifically abandoned before the court of appeal below. At any rate, being a pure question of law requiring no new investigation of fact, the respondents are entitled to agitate the said question before this second appeal even if such question was either not argued or abandoned before the learned First Appellate Courts below. After all, in the absence of necessary party, the suit is not properly constituted and should be dismissed as no effective decree can be passed. (See Profulla vs. Satyacharan; AIR 1979 SC 1682 (para 52 ). 18. I now proceed to decide whether in the absence of State of West bengal, any effective decree can be passed. I am at one with Mr. Banerjee that in a suit for declaration of title and permanent injunction where the plaintiff has alleged erroneous entry in the Record of Right, the State is not a necessary party but may be only a proper party as pointed out by Anil K. Sen, J. in the unreported Division Bench decision relied upon by Mr. Banerjee. Banerjee that in a suit for declaration of title and permanent injunction where the plaintiff has alleged erroneous entry in the Record of Right, the State is not a necessary party but may be only a proper party as pointed out by Anil K. Sen, J. in the unreported Division Bench decision relied upon by Mr. Banerjee. But in the instant case it appears from Exhibits 1 to 4 as well as the oral evidence adduced by the plaintiffs' own witnesses that they were admitting that the suit property was acquired by Tanks improvement Collector, Burdwan under the provision of Bengal Tanks improvement Act, 1939. It appears from Exhibit I that the local Muslim people made representation before the Tank Improvement Collector, alleging illegal activity of the defendants. From Exhibit 3, the deed of lease dated June 28, 1962 executed between Manindra Chandra Mondal, the original defendant No. 1 and State of West Bengal it appears that the Governor of West Bengal leased out the suit property for twenty years from April 1, 1962 after the Collector, under the Bengal Tanks Improvement Act, 1939 had invited offers for lease of the fishery right and the banks of the tank called Chanpapukur which is plot Nos. 1518 and 1519. 19. THE defendants have also admitted execution of such lease deed and their case is further that on expiry of the lease deed, the property will revert back to the owners and for that reason they have also purchased the share from the recorded owners. 20. UNDER the aforesaid circumstances, the plaintiffs themselves having relied upon those documents and having admitted the State of West Bengal as lessors of the property after acquisition, no effective decree for declaration and permanent injunction can be granted in favour of the plaintiffs in the absence of State of West Bengal. Therefore, the State of West Bengal is a necessary party to the present suit. As regards the merit of the case, I agree with Mr. Banerjee that the learned court of appeal below erred in law in totally ignoring the oral evidence adduced by twenty witnesses on the sole ground that the witnesses for the plaintiffs belonged to CPI (M) party while the witnesses for the defendants belonged to Congress Party. As regards the merit of the case, I agree with Mr. Banerjee that the learned court of appeal below erred in law in totally ignoring the oral evidence adduced by twenty witnesses on the sole ground that the witnesses for the plaintiffs belonged to CPI (M) party while the witnesses for the defendants belonged to Congress Party. Therefore, in arriving at the conclusion that the northern, southern and eastern parts of the suit property were not graveyard, the learned court of appeal below erred in law by not taking into consideration the entire oral evidence adduced by the parties. Since the proceeding is pending for the last twenty four years and this second appeal for the last sixteen years and since oral evidence is already on record, instead of remanding the matter back to the learned first Appellate Court, I decided to exercise my power under section 103 of the Code of Civil Procedure and thus invited the learned advocates for the parties to argue on merit on the basis of the oral evidence. 21. AFTER hearing Mr. Banerjee in support of the appeal and Mr. Roychowdhury appearing on behalf of the respondents and after going through the entire materials on record including the oral evidence adduced by the parties I find that even the witnesses for the plaintiffs have admitted that at present cultivation is going on over the northern, southern and eastern sides of the suit property. As it appears from the plaintiffs' own documents viz. Exhibit 3 that in 1962 the Government granted lease of the property in favour of Mahindra Chandra, the original defendant no. 1 of the suit. Therefore, at least 13 years prior to the institution of the suit, the suit property was not in possession of the plaintiffs. The law is now settled that a person cannot pray for declaration and injunction if he is out of possession. 1 of the suit. Therefore, at least 13 years prior to the institution of the suit, the suit property was not in possession of the plaintiffs. The law is now settled that a person cannot pray for declaration and injunction if he is out of possession. In view of the aforesaid fact, the plaintiffs are not entitled to get any declaration and injunction in respect of northern, southern and eastern sides of the suit property as they are out of possession at the time of institution of the suit the plaintiffs have not claimed their right on the basis of a title by purchase or inheritance but have claimed title by adverse possession and customary easement as indicated earlier, the plaintiffs being out of possession even from 1962 when Government of West Bengal granted lease in favour of the predecessor in interest of defendants they cannot come forward for a declaration that 13 years prior to the institution of the suit they had the right over the property by adverse possession or customary easement. Even it appears from the oral evidence of the plaintiff's witnesses that there was no act of burial in the northern, southern and eastern sides of the suit property at least 25 years from date of institution of the suit all the plaintiffs witnesses have asserted that western portion of the property is being used as burial ground. Most of the witnesses have said that they have heard previously norther, southern and eastern sides were used as burial, some of the witnesses have personally seen one or two burials in those three portions but those were 30 or 40 years before the date of deposition. 22. P. W. 2 stated in cross-examination that nobody opposed the government of laying earth of the side of the banks and that Manindra chandra took lease both of banks and tanks from Government. P.W. 3 has specifically stated that Manindra Chandra took lease about 20 years ago and he started cultivating 3/4 years from his taking lease on the northern, southern and eastern sides of the banks. Therefore, even according to the said witnesses for the plaintiffs Manindra Chandra was cultivating for the last 16 years. 23. P.W. 4 claimed that he saw the last burial in the aforesaid three sides of the suit property at the age of his 40 years. Therefore, even according to the said witnesses for the plaintiffs Manindra Chandra was cultivating for the last 16 years. 23. P.W. 4 claimed that he saw the last burial in the aforesaid three sides of the suit property at the age of his 40 years. The said P. W. 4 was aged 70 years. Therefore, according to this witness for the last 30 years he did not see any act of burial in the aforesaid three sides. The evidence of P. W. 5 further goes against the interest of plaintiffs. According to the said witness, who was aged 43 years, since his dawn of knowledge he saw acts of burials of dead bodies on the west bank, but he did not see any burial in other sides of the bank. It shows that for the last 30 years there was no burial on the aforesaid three sides. P. W. 7 asserted that his father was burled some 16 years back on the furthest end of the western bank and thereafter no other dead bodies were buried even on the western bank. P. W. 9, a lecturer of Chemistry at Katwa College frankly conceded that when he first saw graveyard, the act of burial started on the western bank as northern bank was already filled up. 24. ON consideration of the aforesaid evidence adduced on behalf of the plaintiffs themselves it is clear that no burial on the other three sides of the bank than the western side took place in course of last 30 or 40 years. It goes without saying that the witnesses for the defendants have asserted that there was no burial ground on the aforesaid three parts of the suit property. Therefore on consideration of the aforesaid oral evidence along with the documentary evidence adduced by parties it is clear that within near past there were burials only on the western side of the bank but there was no burial in the other three sides of the suit property in course of last 30 years, even if the witnesses for the plaintiffs are believed. Even, Exhibits 6 and 8, the lists of public land of the mouza, upon which strong reliance was placed by Mr. Banerjee indicate that not the entire suit property but only a part thereof presumably western part was used by the Muslim population. Even, Exhibits 6 and 8, the lists of public land of the mouza, upon which strong reliance was placed by Mr. Banerjee indicate that not the entire suit property but only a part thereof presumably western part was used by the Muslim population. Under the aforesaid circumstances, the finding of the learned First appellate Court that the plaintiffs had failed to prove that there was any burial ground on the northern southern and eastern sides of the bank was quite justified. Therefore, in my view, the plaintiffs had failed to rebut the correctness of the recording in the revisional as well as C. S. Record of Right indicating that there was no existence of any graveyard in the aforesaid three sides. Thus the plaintiffs are not entitled to get any declaration that the northern, eastern and southern parts of the suit property was at any point of time burial ground or that they had acquired any right, title or interest by way of adverse possession or easement over those portions of the property. 25. AS regards the decision of the Supreme Court in the case of Syed mohd. Salie Labbai vs. Md. Hanifa and Ors. (supra), upon which strong reliance has been placed by Mr. Banerjee, in my view, the principles laid down in the said decision cannot have any application to the facts of the present case. 26. IN the aforesaid case before Apex Court, the entire land in dispute consisting of mosque, its adjuncts, the burial ground etc. was originally acquired by two deeds Exhibit B1 and Exhibit B2. The land in Exhibit b1 was acquired by saint Syeed Sultan Makhdoom Sahib on May 12, 1730, who has been entombed in the land on which Durgah has been built. The other deed, Exhibit B2, dated May 22, 1797 was executed by one M. K. Pillai in favour of Kaibar Sahib, who was a direct descendant of the saint. The Supreme Court on consideration of the evidence on record including Exhibit B4 specifically held that the then owner unequivically and categorically divested himself of the entire interest in the mosque and made it a public wakf. According to the Apex Court, once the mosque was built a clear case of dedication had been made out and it stood dedicated to God and all the right, title and interest of the owner got completely extinguished. According to the Apex Court, once the mosque was built a clear case of dedication had been made out and it stood dedicated to God and all the right, title and interest of the owner got completely extinguished. The Supreme Court, in the fact of the said case, held that as regards the adjuncts of the mosque, those were built from time to time for the purpose of mosque or by way of gift to mosque. On consideration of the facts, circumstances and evidence on record, the court ultimately held that the mosque as also its adjuncts including burial grounds constituted wakf properties and had been used as such for a long timeso as to culminate into a valid and binding public wakf. In the said case, the appellants, as successors of the saint claimed that the adjoining burial ground was the private burial ground of the family members of the saint but the Supreme Court negatived such contention after considering the fact that for a long time at least form 1915 the public character of the burial ground was established. Under the aforesaid circumstances the Supreme Court observed that "once a Kabarstan has been held to be public graveyard them it vests in the public and constitutes a wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not. " There is no dispute with the proposition of law that a decision is an authority for what it decides and not what can be logically deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in the decision making process [see Krishna Kumar vs. Union of India, 1990 (4) SCC 207 ; Municipal corporation of Delhi vs. Gurnam Kaur, 1998 (1) SCC 101 ]. 27. IN the instant case, in view of my finding that the plaintiffs failed to rebut the presumption of correctness of the records of right and that they failed to prove the same as public graveyard, the said decision cannot have any application. 28. OVER and above, in the instant case, it is not even the plaintiffs' case that it is part of any wakf property as was the case before Supreme court. I am however unable to accept the contention of Mr. 28. OVER and above, in the instant case, it is not even the plaintiffs' case that it is part of any wakf property as was the case before Supreme court. I am however unable to accept the contention of Mr. Banerjee that if by force a land belonging to another has been used as public graveyard for some time and thereafter the original owner has resumed possession, even in such a case, it should be treated as public graveyard notwithstanding the fact that such wrongful acts did not constitute adverse possession for more than twelve years and that the owners have resumed possession over the land. 29. MR. Banerjee further submitted that his clients acquired right, title and interest by way of customary right of burial and in support of such contention placed before me a decision of this Court in the case of harisadhan vs. Radhika Prosad reported in AIR 1938 Cal 202. In view of my finding that the plaintiffs could not prove right of easement or adverse possession over the suit property, no question of the plaintiffs acquiring customary right arises. As pointed out in the aforesaid decision cited by Mr. Banerjee, proof of customary easement is more difficult than the proof of an easement within the meaning of Limitation Act. The persons who rely on custom must prove that it was ancient, continuous, peaceable, reasonable, certain and compulsory. In other words they must not only prove the elements required under section 25 of the Limitation Act 1963 but something more. 30. THEREFORE the aforesaid decision rather helps the respondents. Mr. Banerjee has also relied upon the decision of Judicial Committee in the case of Lakshmidhar vs. Rangala reported in AIR 1950 PC 56. In the aforesaid decision. Privy Council has reiterated the aforesaid principle laid down in the case of Harisadhan vs. Radhika (supra) and has held that what the courts have required off a custom, if the law is to uphold it as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use. None of the aforesaid conditions has been proved by the plaintiffs in this case. Mr. None of the aforesaid conditions has been proved by the plaintiffs in this case. Mr. Banerjee lastly contends that if this Court finds that the suit should fail for want of State of West Bengal as necessary party, this Court should remand the matter back to the Trial Court to enable the plaintiffs to make State of West Bengal a party. In my opinion, inspite of a specific objection being taken at the earliest opportunity, the plaintiffs having decided not to implead State of West. Bengal as party, a second appellate court cannot remand the matter back to the Trial Judge to enable the plaintiffs to make State of West Bengal as necessary party. See Kanakarthanammal vs. Loganatha reported in AIR 1965 SC 271 (para 14). Therefore, the aforesaid submission is opposed the well settled principle of law. 31. MOREOVER, as indicated above, this Court having found that the northern, southern, and eastern sides of the suit property were never used as graveyard, no useful purpose will be served by remanding the matter back to the learned Trial Judge. As indicated earlier, the plaintiffs have admitted dispossession long before the filing of the suit. Therefore, being dispossessed and having admitted the grant of lease in the year 1962 by the State in favour of defendant, one cannot come up after the lapse of thirteen years with a prayer for declaration that one had obtained title over the property by way of adverse possession and easement. Therefore, on that ground also, I am not inclined to remand the matter back. 32. BEFORE the learned First Appellate Court the defendants conceded that western side of the suit properly was used as graveyard and accordingly the learned First Appellate Court passed a decree to that effect. In view of my finding that in the absence of State of West Bengal no effective declaration can be given and the suit itself is hot maintainable, this court is left with no other alternative but to set aside the decree passed by the learned First Appellate Court in its entirety by exercising power under Order 41 Rule 33 of the Code of Civil Procedure. Therefore, the second appeal is dismissed and the suit filed by the plaintiffs is also liable to be dismissed. In the facts and circumstances there will be no order as to costs. Appeal dismissed.