NATHA SINGH Vs. HEET SINGH

JUDGEMENT

(1.) This is a plaintiffs' second appeal in a suit for declaration of the traditional boundary between two villages Ginthali and Kyard in the district of Pauri Garhwal, under Section 13 of Kumaun Nayabad and Waste Lands Act, 1948.

(2.) In brief the plaintiffs' case was that a part of the boundary of their village had wrongly been fixed in the settlement made in the year 1935, for not being in accordance with the boundaries fixed in the settlements of Sal 80 (1823 A. D.) and Sal 96 (1839). The defendants contested the case of the plaintiffs. It is not necessary for the purposes of the decision of this appeal to refer to the pleadings of the parties in this case. Issues framed by the trial court bring out the controversy between the parties. They were:-

(3.) It appears that initially the trial court dismissed the suit by a judgment dated 8th December, 1956. That was set aside on first appeal and the matter was remanded to the trial court for a fresh trial. After remand, the trial court held on an appraisal of the evidence on the record, on issue No. 1, that the land in suit lies within the boundary of village Ginthali i.e. the plaintiffs' village, according to Sal 80 and 96 boundary descriptions; on issue No. 2, that the settlement of 1935-36 was incorrect and had been made without any reference to the boundary descriptions of Sal 80 and 96; on issue No. 3, that the plaintiffs have been exercising exclusively the custompary rights of Gauchar, grass, fuel, pan-ghat, paraw and passage over the land in suit; on issue No. 4, that the land in suit lay within the traditional boundary of the plaintiffs' village and that they have been exercising customary rights over it and' are entitled to a permanent injunction as prayed; on issue No. 5, that notwithstanding the settlement of 1935-36, the plaintiffs had throughout been enjoying the customary rights over the land in suit as part of their village and that being so they were not bound to bring the suit so long as they continued to enjoy those rights uninterruptedly and in this view of the matter the suit was not barred by limitation; issues Nos. 6 and 7, appear to have not been pressed before the trial court; and on issue No. 8, it held that the suit was maintainable. In the result the trial court decreed the suit declaring that the land shaded red in map 301-A was within the traditional boundary of village Ginthali and that the plaintiffs had customary rights of Gauchar, grass, fuel, panghat, paraw on the land in suit, and the defendants were restrained from raising any communal forest over the land or in any manner interfering with the plaintiffs right thereon.