JOGINDER Vs. NIRMAL GIR

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 9th May, 1979, passed by the Additional District Judge, Ambala by which he had accepted the appeal filed by the defendants and had dismissed the suit of the plaintiffs.

(2.) BRIEFLY stated, the facts of the case are that Ram Singh and Joginder Singh, who are residents of village Garhi Gasain, Tehsil Jagadhri, filed suit No. 52/1974 in representative capacity under Order 1 Rule 8 of the Code of Civil Procedure (hereinafter referred to as the Code) against Nirmal Gir and six others, seeking mandatory injunction directing the defendants to restore land measuring 44 bighas 1 biswa situated in the village mentioned herein (details of which were given in the heading of the plaint) to its original position and restraining them from appropriating any land for their cultivation. It was alleged in the plaint that there is Shamlat Deh in the said village measuring 99 bighas 4 biswas and the same was utilised from time immemorial for the grazing of the cattle of the entire village including the non-proprietors who also had a right to graze their cattle there without making any payment. The defendants contested the suit. In the written statement, filed by the defendants, it was averred that the plaintiffs were neither proprietors nor representatives of the alleged proprietors and their suit land was in actual cultivating possession of about 20 proprietors including the defendants for the last 20 years and this land was never used for grazing the cattle. It was further stated by the defendants that they had become owners of the suit land by adverse possession. The learned trial Court vide judgment dated 10th June, 1975, decreed the suit of the plaintiffs and directed the defendants to restore an area measuring 44 bighas 1 biswa in Khasra Nos. 267, 268, 269, 270, 274, 275, 277, 278, 279, 282 and 285 Khewat Khatauni No. 153/226, according to Jamabandi for the year 1969-70, situated at village Garhi Gosain, to its original condition, The defendants were also restrained from appropriating any part of the suit land for their cultivation. It was held by the learned trial Court that the suit land was reserved for grazing purposes and it was being used as such by the proprietary body as well as the non-proprietors of the village and even the non-proprietors had aright to graze their cattle there. It was also held by the learned trial Court that the suit land was being cultivated by the defendants for the last only two years and as such the defendants had not become owners of the suit land. It was further held that the suit land was Shamlat Deh land and did not vest individually in any person.

(3.) MR . Jaswal, learned counsel appearing on behalf of the appellants submitted that admittedly the suit land was Shamlat Deh and such land was not only for the benefit of the landowners-proprietors but was for the benefit of all sections of the population in the village including those who did not own land. He further submitted that the learned trial Court had given a clear finding that the defendants had started cultivation on the suit land recently and not for the last 20 years as alleged by the defendants, He, therefore, contended-that there was no ground for the learned Additional District Judge to reverse the findings of the learned trial Court. In support of his submissions, the learned counsel placed reliance on the judgment rendered by a Full Bench of this Court in Gram Panchayat Sadhraur v. Baldev Singh and Ors. , 1977 PLJ 276.