JUDGMENT Mr. K. Kannan, J. (Oral):- The case has already been admitted without framing substantial questions of law. It is an irregular procedure. The following of the substantial questions of law that arise for consideration in this second appeal, as formulated by the counsel for the appellant:- i) Whether the courts below were in error in finding that the plaintiff’s admission of the suit property as forming part of kabristan constitute an admission by the plaintiff that the property was endowed in Wakf and that the plaintiff cannot seek for his declaration without proving his own title? ii) Whether the jamabandi entry showing the plaintiff as 1/32 sharer displaced the value of the notification issued under Section 5 declaring the property to be wakf under the Wakf Act of 1954? iii) Whether the plaintiff is entitled to a claim for partition in the light of the facts and circumstances that the defendant-Wakf Board had shown its possession from the year 1965 itself, when the suit itself was filed only in the year 1978? 2. The learned senior counsel for the appellant contends that the only document which the Wakf Board was relying on to show that it was the owner of the property was a gazette notification issued under Section 5 of the Wakf Act in the year 1970. He would refer to the position of law discussed by this Court and the High Court to say that notification issued under Section 5 cannot decide issue of title for 3rd parties. The contention is that the Wakf Board itself does not have any proof for endowment of the property as wakf. The learned counsel also points out to an alleged misinterpretation of the pleading in so far as the appellate Court held that the plaintiff had admitted that the suit property was a kabristan which was a wakf. The learned senior counsel contends that the southern corner of the property alone was admitted to be kabristan and the remaining property as entered in the jamabandi of the year 1975-76 (Ex.P2) and 1980-81 (Ex.P3) only showed the property which was uncultivated and the plaintiff’s name is also shown as having 1/32 share. According to him, the title of the plaintiff is proved by this entry and the gazette notification brought by the Wakf Board in the year 1970 will not exclude plaintiff’s claim to title to the property. 3. According to him, the title of the plaintiff is proved by this entry and the gazette notification brought by the Wakf Board in the year 1970 will not exclude plaintiff’s claim to title to the property. 3. The trial Court had concluded that the Wakf Board had granted a lease to the Municipal Committee for use of the property as a bus stand and for establishing a school in the year 1965 itself and the suit itself had been filed only in the year 1978, that was, more than 13 years after the lease. The appellate Court had therefore found that the suit was also barred by limitation. The appellate Court reversed the finding and held that in terms of change of law under the Limitation Act prescribing for rules of limitation under Articles 64 and 65, a suit for recovery of possession of title was required to be filed within 12 years from the time when the defendant’s possession was shown to be adverse and since in this case, there was plea of adverse possession, the finding regarding the suit being barred by limitation was erroneous, the appellate Court, therefore, reversed the said finding. It however found that the plaintiff himself admitted the title of the Wakf Board, when he admitted the property as kabristan and hence, dismissed the suit. 4. The whole issue centers around whether the plaintiff had been able to establish the title to the property to sustain the relief of partition in the manner sought. The first publication which was made in Rule 5 of the Wakf Rules in the year 1965 was only an expression of its proposal for leasing the property to the Municipal Committee and it should only be taken as a circumstance when an assertion of title to the property was made by the Wakf Board in the year 1965. There is no document showing endowment of the property as wakf. However, it has been notified as wakf in the gazette in the year 1970 as per the additional evidence adduced by the Wakf Board at the appellate Court. There is no document showing endowment of the property as wakf. However, it has been notified as wakf in the gazette in the year 1970 as per the additional evidence adduced by the Wakf Board at the appellate Court. A person, who is affected, could have forced an adjudication on title, which was what was done in this case by institution of the suit by the plaintiff but he is not able to show any more than a jamabandi entry in the year 1975-76 and in the year 1980-81 that he has a 1/32 share. The suit itself has been filed 13 years after the lease was created. Between the gazette notification issued in the year 1970 and the jamabandi entry of the year 1975-76, I have little to choose. None of the documents filed on both sides could be said to establish title. In this case, since the plaintiff seeks for 1/32 share by only reliance on the jamabandi entry which is a later entry after a gazette notification, I cannot place any value to the said entry and take it as concluding the plaintiff’s title. 5. In the case of contention of rival title, the plaintiff, who seeks to dispossess the defendant, who is admittedly in possession of the property, ought to show his title as better than defendant. Possession, it is trite, is nine points in law and the plaintiff cannot dispossess the defendant by vivisection of the property unless he shows better title. I reject the argument that the jamabandi entry itself will conclude the title in favour of the plaintiff. I will not also find that there is sufficient evidence to hold that whole property was endowed in wakf. The learned senior counsel for the appellant is correct in his contention that the plaintiff has only admitted a portion of the property used as kabristan. The learned senior counsel refers me to the judgment in Panchayat Deh Versus Punjab Wakf Board, Ambala and another, LXXI 1969 PLR 1081 where the dispute was inter se between the Panchayat Board and the Wakf Board. The Wakf Board laid claim to the property as kabristan. The learned senior counsel refers me to the judgment in Panchayat Deh Versus Punjab Wakf Board, Ambala and another, LXXI 1969 PLR 1081 where the dispute was inter se between the Panchayat Board and the Wakf Board. The Wakf Board laid claim to the property as kabristan. The Court took note of the fact that no dead body had been buried in the graveyard since 1947 and if there were no Muslims living in the village, it could not be understood as to how the jamabandi entry as kabristan would make it a wakf. 6. It is stated with respect that the above judgment is no longer good law in view of the judgment of the Supreme Court in Syed Mohd. Salie Labbai (dead) by LRs. and others Versus Mohd. Hanifs (dead) by LRs and others, (1976) 4 SCC 780 , where the Court has held, we are of the view that once a kabaristan has been held to be a public graveyard then 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.” 7. I state this only to dispose of a plea made for consideration of all the relevant points and I vacate the findings of the court below that the entire property was used as kabristan on the alleged admission of the plaintiff. There was indeed no such admission. 8. The plaintiff has not proved his title to claim a 1/32 share in the manner sought for. The user of the property by the defendant as a person in possession cannot be disturbed at the instance of the plaintiff. I answer the substantial questions of law in the above manner and conclude the case against the plaintiff and dismiss the suit. Consequently, the second appeal is dismissed with the above observations. ---------0.B.S.0------------ --------------------