Saiyid Fazl Ali, J.

1. The dispute in this appeal relates to plot No. 1607 which is 11 kathas 17 dhurs in area in village Bargaon. The suit was brought by the plaintiffs for a declaration that this plot was the kasht land of the plaintiffs and that the defendants who were six in number, or any other Mahomedans, were not entitled to use it as a grave yard. It appears from the plaint that there was a dispute between the parties not only as to the burial of the dead bodies, but also as to the performance of certain Moharram ceremonies and it was alleged that the defendants had forcibly performed these ceremonies and that was also one of the reasons for instituting the suit. In the survey khatian prepared during the revisional and cadastral survey Operations the land is recorded as the occupancy land of the plaintiffs, but in the revisional survey khatian there is a note that the land is a graveyard. Both the Courts below have rejected the case of the plaintiffs that the word "kabrastan" should be read as "kabirasthan" and that the graves were not the graves of the Mahomedans, but the graves of certain followers of Kabirpanthi sect. The lower appellate Court has held definitely that the land is the grave-yard of the Mahomedans and that the defendants are, to use his own words, "entitled to bury their dead bodies in it, to use it as imambara during the Moharram festival and to say their Id prayers in it."

2. The plaintiffs have now preferred this second appeal and a preliminary point is raised on behalf of the defendants that the whole appeal has abated by reason of the fact that respondent 1 died long ago and no steps were taken for substituting his heirs. The Registrar has noted in the order-sheet that the appeal has abated as against respondent 1, and the point to be considered is whether the appeal has abated only as against respondent 1 or as a whole. If the rights which are claimed by respondent 1 were rights which he was alleged to be exercising by himself and in his individual capacity, there would have been something to be said for the contention of Mr. Rajeswari Prasad who appears on behalf of the appellants that the appeal has abated only as against respondent 1; but no such case is made out even in the plaint. On the other hand, the rights which are claimed by the defendants and which are the subject-matter of the decree appealed from are rights of a peculiar nature which can be exercised only by a collective body of persons and which therefore if conceded to one of the defendants must be conceded to others. If therefore the contention of Mr. Rajeswari Prasad is given effect to it will lead to most anomalous results, one of which is the possibility of there being contradictory and conflicting decrees. In my opinion therefore the appeal has abated as a whole.

3. The parties have also argued on the merits of the case and it is sufficient to say that the lower appellate Court has virtually come to the finding that the entry in the record of rights has not been rebutted. The learned Subordinate Judge has come to a distinct finding that the disputed land is a graveyard of the Mahomedans and the defendants have the right to bury their dead, but he has not stated what is the nature of the right which has been acquired by the defendants. In this connexion the learned advocate for the respondents has referred me to the decision of the Privy Council in Court of awards v. Ilahi Baksh, (1913) 40 Cal 297 = 17 I C 744 = 40 I A 13 (P C), in which after formulating the points of dispute which arose in that case and which was whether a certain area was one continuous burial ground, or whether the vacant ground unoccupied by graves remained the private property of the person recorded as the owner. Lord Macnaghten who delivered the judgment observed:

Their Lordships agree with the Chief Court in thinking that the and in suit forms part of the graveyard set apart for the Mussalman community and that by user, if not by dedication, the land is waqf. The entry in the record of rights seems conclusive on the point. It is obvious that if it were held that within the area of the graveyard and unoccupied or apparently unoccupied by graves was private property and at the disposal of the recorded owner, it would lead to endless disputes etc., etc.,
4. In my opinion this decision is in point and I therefore dismiss the appeal; but having regard to all the circumstances of the case I make no order as to costs.