- (1.) THIS second appeal is at the instance of the plaintiffs in a suit for declaration and injunction and is directed against the judgment and decree dated August 18, 1983 passed by the learned Subordinate Judge, Katwa in Title Appeal No. 78 of 1982 thereby modifying those dated May 8, 1982 passed by the learned Munsif, 1st Court, Katwa in Title Suit No. 188 of 1975.
(2.) THE aforesaid suit was filed by the plaintiffs by taking leave under order 1 Rule 8 of the Code of Civil Procedure for declaration that the local Muslim population have the right to use the suit property as public graveyard and for permanent injunction restraining the defendants from creating any disturbance. The case made out by the plaintiffs was as follows : The local Muslim population of the area had been using the suit property as public graveyard for more than 20 years without any objection from any side and had thus acquired prescriptive right of easement over the property. The said property consisting of three khatians although has been recorded in the name of predecessors of the defendants in both C. S. and R. S. Record of Right but in C. S. Settlement map the suit property has been shown as graveyard. In the Khatian No. 2, the property has been mentioned as one for the use of Muslim people. According to the plaintiffs, in the C. S. and R. S. Record of Right, the suit property has been wrongly recorded. However, in view of C. S. map the said recording is patently wrong. In paragraph 3 of the plaint, the plaintiffs specifically stated that the defendants claiming themselves to be the owners of the property have illegally made cultivation on the northern, eastern and southern side of the property. Hence, tine prayer for declaration and injunction.
(3.) THE aforesaid suit was contested by the respondents by filling separate written statements denying the material allegations made in the plaint. In paragraph 5 of the written statement, the defendant No. 1 to 4 specifically stated that in the absence of State of West Bengal no effective decree could be passed. Further, in paragraph 6, those defendants look the plea of limitation. The further defence of those defendants was that they are the owners and in possession of the said property. The state of West Bengal "acquired" the property and thereafter executed a case deed of 20 years in favour of the defendants. Over and above, the defendants have also purchased the property from the recorded owners so that on the expiry of the requisition they can become full-fledged owner of the property.;