JWALA Vs. RAM DUTTA

JUDGEMENT

(1.) This is a plaintiff's appeal arising cut of a suit for injunction restraining the defendant-respondents from cultivating the plot in suit and from integer-ing with its use by the appellants and other members of the village community as a 'marghat' (cremation ground). The suit was brought under Order 1, Rule 8, C. P. C., on the allegation that plot No. 3270-B, area 4.27 acres, situate in village Rampur Raja, district Etah, was a cremation ground and it had been used as such since time immemorial. It was alleged that the defendant-respondents Nos. 1 to 4 had obtained, leases of the land in suit from the Pradhan of the Gaon Sabha and had started cultivating a portion of the land for some time prior to the institution of the suit. It was contended that, the Gaon Sabha or the landlord had no right to grant the lesse with respect to the land in suit and such grant of lease was void. It was further alleged that the respondents Nos. 1 to 6 were cultivating the land in suit which would interfere with the rights of the appellants.

(2.) The suit was contested by the respondents Nos. 1 to 6. They admitted having taken the leases and alleged that they were cultivating the land in suit. They denied that the land in suit was ever a cremation ground and contended that it was never used as such, that the appellants had no right to cremate dead bodies on the plot in suit, and that there was never any 'marghat' in village Raja Ka Rampur. It was stated that the respondents had taken a lease of a portion of the plot in suit in 1355 Fasli from the Court of Wards and another lease in 1359 Fasli from the Court of Wards and the last lease had been taken in 1360 fasli from the Gram Sabha and they had been cultivating the land, in suit since 1355 Fasli and were in possession thereof. It was also alleged that an area of 1.37 acres of the plot in suit was still lying vacant and it was sufficient for the purposes of cremation. Lastly, it was contended that the suit for mere injunction was not maintainable.

(3.) The trial Court decreed the suit. On appeal, the Court below affirmed the finding of the trial Court that the plot in suit was Used as a cremation ground. It was found that the appellants and other residents of the village had acquired a customary right to use the entire plot as a cremation ground, although this right could not be supported on the ground of dedication or lost grant. The Court below, however, dismissed the suit on the ground that the provisions of Section 56 (i) of the Specific Relief Act were attracted and the relief of injunction claimed by the appellants could not be granted because they had not asked for possession of the land in suit. The plaintiffs have now come to this Court in second appeal.