ZAKIR ALI Vs. MEHAR TILAT

JUDGEMENT

(1.) Heard learned counsel for both the parties at the admission stage under Order XLI Rule 11, C.P.C.

(2.) This is defendants' second appeal arising out of Regular Suit No.86 of 1994, Mehar Tilat Vs. Zakir Ali and others. The suit was dismissed on 04.12.1998 by Additional Civil Judge (J.D.), Mohamadi, District Lakhimpur Khiri. Against the said decree, plaintiff respondent filed Civil Appeal No.8 of 1999. V A.D.J., Lakhimpur Khiri allowed the appeal through judgment and decree dated 16.10.2001 set aside the decree passed by the trial court and decreed the suit of the plaintiff respondent restraining the defendants from interfering in the ownership and possession of the plaintiff over the land in dispute, however it was clarified that the decree would have no adverse effect on Muslim residents of the village. The property in dispute is agricultural land bearing Plot No.230, area 0.222 hectare situate in village Magraina Pargana and Tehsil Mohammadi, District Lakhimpur Khiri. Undisputedly, plaintiff is bhoomidhar of the land in dispute and was recorded as such in the revenue records. It was alleged in the plaint that about a year before defendants made efforts to bury the taziya in the land in dispute. Relief claimed was that defendants appellants, who are nine in number must be restrained from doing so.

(3.) The defendants pleaded that since time immemorial, they were buring the taziya in the land in dispute during Moharram and they had acquired easementary/ customary right. They also pleaded that they were holding fair and a lunger every year in Moharram in which all the muslim residents of the village, who were about 500 in number were participating and these activities were being done for hundreds of year in Moharram and Chehallam. It was also pleaded that for the said purpose, Abdul Wajid Khan, father of the plaintiff and his ancestors had granted the permission. It was also stated in the cross-examination by D.W.-2 that father of the plaintiff had granted permission to bury the taziyas but it was oral and not in writing. DW-2, Hasan Ali, who gave the said statement, subsequently stated in his cross-examination that even before the permission, taziyas were being buried in the land in dispute. DW-3, Habib Ali also stated the same thing that father of the plaintiff had granted the permission but even before grant of permission taziyas were being buried in the land in dispute and fair etc. was being held.