Gujarat High Court Rejects Plea For Protection Of Burial Rights Near Protected Monument, Says Customary Right Not Proved

The Gujarat High Court has dismissed an appeal seeking the State government be restrained from interfering with a party's burial activities near a protected monument in Vadodara, holding that the party had failed to establish any customary or legal right over the site.A Single Judge Bench of Justice J.C. Doshi observed that the plaintiff had neither proved his alleged status as a religious head nor established any customary right permitting burial activities within the protected monument area.The plaintiff had argued that he has religious and customary right to bury his family members near the tomb of Qutbuddin Muhammad Khan, as he is lineal descendant of Late Qutbuddin and such custom continued since long. Emphasising the absence of proof, the Court noted, “Plaintiff, except pleading bare words in this regard, did not lead any evidence to establish custom that he is a lineal descendant of Late Qutb-ud-din. Even the pedigree, which he placed on record did not match with his claim. Plaintiff pleaded that there are several disciples of Late Qutb-ud-din Shijar-ae Qadariya Ashrafia Rafiya Tomb, but did not lead any evidence, much less authentic evidence to establish that he is a Dharma Guru and is a lineal descendant of Late Qutb-ud-din and custom exists that the family members of the plaintiff would be buried in the surrounding area of tomb of Shijar-ae-Qadariya Ashrafia Rafiya.Plaintiff, who can easily secure the evidence of his elder brother - Saiyed Ahmedmiya Badruddin Kadri, who was taking care of the tomb, according to plaint, did not lead his evidence to establish the so-called custom, right or any such established procedure, permitting him to bury him and his family member. Plaintiff's suit is rather like ignoramus story”The Court, accordingly, held that the findings recorded by the First Appellate Court did not warrant interference in second appeal and dismissed it.The dispute traces back to a Regular Civil Suit filed by Pirzada Saiyed Bahauddin B. Kadri seeking a declaration that a notice issued by the Collector, Vadodara on February 4, 1986 restraining the burial activities that he was carrying out near the tomb of Qutbuddin Muhammad Khan and son Naurang Khan at Danteshwar Hajira @ Bada Hajira, was illegal.The plaintiff also sought a permanent injunction restraining the State Government from preventing him from performing religious and burial activities on the land situated at Pratapnagar, Vadodara.The plaintiff claimed to be the Dharma Guru of the Qadariya sect and asserted that the tomb of Qutbuddin Muhammad Khan and his family members existed on the land. According to him, the surrounding land historically permitted burial of members of his family as part of religious custom.The dispute arose when the plaintiff buried his daughter near the tomb in 1984 without permission, following which the Collector issued a notice restraining such activities within the monument area.The trial court decreed the suit on October 1, 2003, accepting the plaintiff's claim and granting the declaration and injunction sought. However, the First Appellate Court reversed the decree and dismissed the suit by judgment dated December 23, 2005. Aggrieved by this decision, the plaintiff approached the High Court through a Second Appeal.Appearing for the appellant-plaintiff, Advocate M.T.M. Hakim argued that the appellate court had committed a serious error by relying upon documents which had not been formally exhibited by the State Government during trial, without even deciding on their admissibility, and erroneously set aside an otherwise well-reasoned judgment of the trial court. He further submitted that even if those documents were relevant, the appellate court ought to have remanded the matter under Order XLI Rule 23A CPC to allow the parties to lead evidence afresh. He also argued that the tomb, though declared a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, did not extinguish customary rights of religious observance or burial claimed by the plaintiff.Opposing the appeal, Assistant Government Pleader Urvashi Purohit submitted that the appellate court had not relied upon any new material. Rather, it referred only to documents already produced by the plaintiff himself during trial.She further argued that these documents such as revenue entries, governmental notifications, and archaeological records were public documents whose evidentiary value was unquestionable, and therefore the appellate court was justified in considering them. The State also relied on notifications showing that Bada Hajira had been declared a protected monument as early as 1938 by the Baroda State, which continued to remain protected under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The Court noted that the scope of a second appeal under Section 100 CPC is limited to substantial questions of law, relying on Supreme Court decisions explaining the narrow ambit of such...

Gujarat High Court Rejects Plea For Protection Of Burial Rights Near Protected Monument, Says Customary Right Not Proved

Ananya Tangri

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