ILAM CHAND Vs. JANESHWAR DAS AND OTHERS

JUDGEMENT

(1.) Heard Sri A.N. Bhargava, learned counsel for the appellant and Sri Madan Mohan Jain holding brief of Sri M.K. Gupta for respondents.

(2.) This Second Appeal arises out of a representative suit filed by the residents of town Shahpur, District Muzaffarnagar under Order 1 Rule 8, Code of Civil Procedure for permanent injunction restraining the defendants from demolishing the gate, stage and flags and interfering in the exercise of their rights, enjoyment and possession over the land in suit. The plaintiff pleaded customary rights over 9 Bighas and 8 Biswas land shown by letters A,B,C,D in the map given at the foot of the plaint. In the disputed land, there exists a gate, pucca stage, penth chabutra, two wells and two flags of the residents. According to the plaintiffs Hindu Community celebrates Ram Lila on the eve of Dushehra festival, and burns effigies since times immemorial. There exists a pacca chabutra for swangs. There is also penth which is held on the open land every week. The Jain community celebrates ''Uchao' ceremony every year and they have their flags and gate over the land in dispute. They celebrate ''Bara Utsav' and ''Chhota Utsav' on the land. In ''Gokula Devi Fair', the land in dispute is used for Swangs, Dramas and other musical and general activities. It is known as public ''Penth Wala Maidan' and ''Ram Lila Wala Maidan'. The custom is reasonable, certain ancient and enjoyed without interruption. The land is dedicated for public purposes. The defendant no. 1 and 2 were previous owners, whereas defendant nos. 3 & 4 profess to derive their title through defendant Nos. 1 & 2 by a sale deed. Defendant nos. 5 to 13 have been impleaded on their own applications as they wanted to contest the suit.

(3.) The defendant no. 1 admitted the customary rights over a portion of land. He executed sale deed to defendant no. 3 and 4 with full knowledge of the customary rights. Suit was contested by defendants no. 3 and 4. Defendant nos. 5 to 23 did not file any written statement.