K.D.SHARMA, J. - (1.) THIS Is a civil second appeal Sled by Hussain defendant -appellant against the judgment and decree of the learned District Judge Pali dated 29 -1 -70 by which the decree and judgment of the learned Munsif Jetaran dated 9 -4 -66 was set aside and the sale of the disputed land in favour of Jasraj predecessor -in -title of Hussain defendant by the Panchayat was declared null and void and the deed of sale executed in his favour was cancelled and Hussain was declared not entitled to put his stones on the land and was directed to remove them.
(2.) THE relevant facts giving rise to the suit out of which this second appeal arises maybe briefly stated as follows: - There is a piece of land comprising Khasra No. 387 and situated in village Bar. This piece of land was shown as agricultural land in the revenue record. Later on vide order of the Collector No. CA/4943 dated 3 -8 -57 it was converted into Abadi land. The averments in the plaint filed by plaintiff -respondents were that this piece of land was med openly and peacefully by the inhabitants of the village for carrying their cattle for grazing in the past for the last 100 years and the villagers acquired a customary right for such user over it. The Gram Panchayat however sold away this land in question at public auction to Jasraj defendant before it was converted into an Abadi had by the Collector. Hussain defendant -appellant subsequently purchased this land from Magraj and put stones on it on 7 -10 -1963 and thereby caused obstruction to the customary right of way that has accrued to the villagers. The stones were placed by Hussain defendant for constructing his house on the land in question. The inhabitants of village Bar, therefore, filed a representative suit against Hussain, Jasraj and the Gram Panchayat Bar in the Court of the Munsif Jetaran for declaration of their right of way and for cancellation of the deed of sale executed by the Panchayat in favour of Majraj defendant and for perpetual Injunction restraining the defendants from causing any obstruction to the right of the villagers to carry their cattle through the land for grazing and fronts making any infringment on the land in question by placing stones on it or by constructing a building thereon. The suit of the plaintiff was resisted by Hussain defendant on several grounds which are mentioned in his written statement. His main plea in his written statement was that the inhabitants of village Bar never acquired any customary right of way over this piece of land for taking their cattle to the jungle for grazing and that the Gram Panchayat was a competent to sell away this land to Magraj defendant from whom he purchased in bonafide for value. In the alternative it was pleaded by the defendant that the villagers can take away their cattle for grazing through the open land which is lying vacant near Khasra No. 387 and the suit is not maintainable without impleading the State Government to whom the land belonged. Upon pleadings of the parties the learned Munsif framed as many as 11 issues in the case which read as follows: .........[vernacular ommited text]........... After striking the aforesaid issues, the learned Munsif recorded the evidence of the parties and decided all the issues except Nos. 8,9 and 10 against the plaintiffs. The decision No. 8,9, and 10 was given aginst the defendants, accordingly the learned Munsif dismissed the suit of the plaintiff with costs.
(3.) AGGRIEVED by the decree and judgment of the learned Munsif, the plaintiffs preferred an appeal in the court of District Judge, Pali, who after hearing the parties and goning through the record accepted the appeal and set aside the judgment and decree of the learned Munsif as stated above. The District Judge, however, left the parties to bear their own costs of both the courts. As against this decree and judgment Hussain has come up to this Court in second appeal. The plaintiff -respondents also filed a cross -objection on the ground that the courts below committed an error in coming to the conclusion that the inhabitants of village Bar never acquired a customary right of way over the land in question for taking away their cattle for grazing and that there is an alternative way for the villagers to carry their cattle through it.;