- (1.) THIS is an appeal from the judgment and decree of the learned Subordinate Judge, hooghly affirming the judgment and decree of the learned Munsif of Arambagh. The suit out of which this appeal arises is a representative suit filed by the plaintiffs on their own behalf as well as on behalf of the inhabitants of village Khorda Kanpur. The plaintiff no. 1, Mohan Lal Dey is the nephew of defendant No. 1, Sudhir Chandra Dey. The plaintiff No. 2, Chandra Kanta Dey is the brother of defendant No. 1. The dispute is with regard to the right, if any, of the plaintiffs and the Hindu villagers of the said village to use the land described in Schedule 'ka' of the plaint measuring 2. 72 acres of plot No. 45 /1566 under khatian No. 73 being the banks of a tank called Dulapukur at plot No. 45 of the said khatian. The land described in Schedule 'kha' of the plaint Is a piece of land on which the defendant Nos. 2 to 4 had been residing and i which forms the part of the land described in Schedule 'ka'. It is the case of the plaintiffs that the Hindu villagers of the said village had been using the land in dispute as the cremation ground since time immemorial and they have acquired the right to use the land in dispute as the cremation ground by reason of lost grant and custom. The tank at plot No. 45 was formally an abandoned tank and the same had recently been re-excavated and improved by the defendant No. 1 under the provision of the Bengal Tanks improvement Act, 1939. It is also the case of the plaintiffs that the Hindu villagers had been using the water of the said tank and the bamboos and other trees grown at or near the suit land in connection with the cremation. It has been further alleged that earth removed from the said tank was thrown upon the cremation ground and a portion on the south of the suit land was brought under cultivation by the defendant No. 1 and the said defendant was trying to convert the rest of the cremation ground into arable land. It has also been alleged that with that end in view, the defendant no. 1 inducted the defendant Nos. 2 to 4 on the south western corner of the cremation ground where the defendant nos. 2 to 4 had been temporarily residing by constructing huts. It has also been alleged that the villagers had acquired an indefeasible right to use the suit land as the cremation ground which had been denied by the defendant No. 1. It has also been alleged that no other land would be available to the members of the Hindu community of the said village to burn the dead bodies of adult persons or to bury the dead bodies of infants. Hence the suit was instituted by the plaintiffs to obtain a declaration that the land in dispute is the cremation ground of the Hindu inhabitants of the village khorda Kanpur and they have the right to use the bamboos and trees growing on the suit land for the purpose of the cremation and for permanent injunction restraining the defendants from interfering with the right of the villagers to burn or bury the dead bodies as the case may be on the suit land and from converting the suit land into arable land and from making any cultivation on the suit land. They have also asked for eviction of the defendant Nos. 2 to 4 from the suit land.
(2.) THE defendants have denied that the Hindu villagers had been using the disputed land as cremation ground since time immemorial or they acquired any right whatsoever to use the land as crematorium as claimed. The defendant no. 1 further alleged that he had taken settlement of more than one acre including a tank and the suit land from the Maharaja of Burdwan in 1941 and since then he had been possessing the same. It is the case of the defendant No. 1 that a portion of the disputed land was being used as a private family crematorium of the members of the Dey family and in another portion the defendant No. 1 had been growing crop. It is alleged that the defendant No. 1 inducted the defendant nos. 2 to 4 in a portion of the suit land where the defendant Nos. 2 to 4 had been residing as licensees under the defendant No. 1. It is the case of the defendant Nos. 2 to 4 that they are the licencees under the defendant No. 1 and they are not liable to be evicted on the prayer of the plaintiffs. .
(3.) AS many as 7 issues were framed by the learned Munsif. Issue No. 4 which is the main issue, was to the following effect :-"are the plaintiffs entitled to get the declaration that the suit property is the cremation ground of the Hindu inhabitants of village khorda-Kanpur? Can the villagers use the trees and bamboos growing in natural course on the suit land for the purpose of cremation ?";