HAKIMUDDIN Vs. SHABBIR

JUDGEMENT

(1.) TARUN Agarwala, J. Heard Shri A. K. Tripathi, the learned Counsel holding the brief of Sri A. D. Prabhakar, the learned Counsel for the plaintiffs/appellants and Sri M. A. Zaidi, the learned Counsel for the defendants/respondents.

(2.) THE plaintiffs instituted a suit for a permanent injunction against the defendants from cutting the trees which were located in the graveyard. THE suit was filed in a representative capacity. THE plaintiffs contended that they are the residents of village Nasirpur which is adjoining to the village of the defendants, known as, Sherpur in District Bijnor and that there was a common graveyard for the residents of both the villages. THE plaintiffs alleged that there are a large number of trees existing on the graveyard and that the defendants were illegally cutting the trees for monetary gains and that they had no right to cut the trees.

(3.) AGGRIEVED, the defendants filed an appeal which was allowed and the decree of the trial Court was set aside and the suit was dismissed. The lower appellate Court held that the suit was barred by the principles of res judicata, since cost imposed by the trial Court in the earlier suit was not paid by the plaintiffs. The lower appellate Court further found that the plaintiff had no right to maintain the suit since the graveyard was located in village Sherpur and that the plaintiffs were not the residents of that village. The lower appellate Court further found that the residents of both the villages, namely, Nasirpur and Sherpur were utilising the graveyard for the burial of their dead, and therefore, held that the graveyard was a public graveyard in character and that the residents of village Nasirpur were only given permission to bury their dead, and had no right of ownership of the graveyard nor had any right on the trees standing on the graveyard, and therefore, the defendants had a right to manage and dispose of the trees.