AKRAM SHEIKH Vs. MAKID SHEIKH

JUDGEMENT

(1.) This is an appeal by the defendants against a judgment of reversal decreeing the plaintiffs' suit. The suit land is comprised in plot No, 1876 (tank) area 2.04 acres khatian 199 and plot No. 1875 (banks of the said tank) area .86 acre khatian 146 Mouja Gopigram P.S. Nabagram, District Murshidabad. The plaintiff's case is that he purchased the suit lands from pro forma defendant No. 12 on August 29, 1952 and had been in possession of the tank by rearing fish and its banks by growing trees and crops. There were ill feelings between the plaintiff and the said defendant and the principal defendants who were his labourers, on December 20, 1955, cut down trees on the eastern bank of the tank and started digging earth with the object of burying the wife of the defendant No. 1 at the instigation of the defendant No. 12. The plaintiff strenuously objected but to no effect. He started a criminal case but it failed and even during its pendency the defendants buried another person there. The plaintiff averred that the defendants never, buried their dead before and there was a grave yard in near about plots Nos. 1901 and 1902. The plaintiff further stated that water of the tank by such burials was being polluted, as the tank water was used for drinking and bathing. In these circumsances the plaintiff instituted the suit praying for declaration of his title to the above plots and for further declaration that the defendants had never any right to bury their dead on the eastern bank of the tank, for permanent Injunction restraining them from using the said land as the burial ground and also for permanent injunction removing the graves of the persons buried by them. The defendants Nos. 1 to 11 were impleaded for selves and on behalf of the Muslims of Gopigram,

(2.) The suit was contested by the defendants (excepting defendant No. 1) and in their written statement it was stated that the disputed land, the eastern portion of the tank, was used as the burial ground of Muslims of Shaikpara and Gopigram from time immemorial. All material allegations in the plaint were denied, in particular, about the water of the said tank being used for drinking purposes and its pollution and the alleged cultivation of the banks or the rearing of fish in the tank. It was further claimed that the easement right had been acquired by long over twenty years' user and the same could not be destroyed. Another written statement was filed by the pro forma defendant No. 12 supporting the case of the principal defendants. The suit in the circumstances, it was submitted, should be dismissed.

(3.) The suit was tried on evidence before the learned Munsif, who on the materials on record, held that the customary right of burial of the dead as pleaded in the argument, though in the written statement the case was one of acquisition of the right of easement, was established to have existed for a long time. Such right was also held to be reasonable and the topography of the land sloping towards the road by the other side also supported the defendant's case. The title of the plaintiff in the suit plots was not disputed. The suit was accordingly decreed in respect of the declaration of title of the plaintiff to the suit plots, subject to the right of Shaikpara Muslims to bury their dead on the eastern bank of the tank.