CHINTAHARAN GHOSE Vs. GUJARADDI SHEIK

JUDGEMENT

(1.) This is a pltfs. appeal in a representative suit brought under Rule 8 of Order 1, Civil P. C., on behalf of the Hindus of the village of Alampur against the Muslims of the same village for a declaration that the suit land is one in which the public has got the right of use as playground or grazing ground etc., & for an injunction to restrain the defts. from using the land as a burial ground.

(2.) The pltfs.' case is that in Khatian No. 159/1 of Mouza Alampur covering an area of 3 bighas & 1 cottah, 1 bigha & 2 cottahs was a graveyard of the Muslims of that village & the remaining 1 bigha and 19 cottah was used by the villagers as a football ground. This football ground is also claimed to be used as a grazing ground for the cattle of the villagers. There had been a previous litigation in respect of this property in 1928 when a representative suit was brought on behalf of the Muslims of that village for a declaration that the lands covered by the entire Khatian were burial ground. A consent decree was passed in that suit & the representatives of the two communities, as impleaded in that suit, agreed that in 1 bigha, 19 cottahs the public had the right of use as a playground including 1 cottah as Bhagar & that the rest of it, that is, 1 bigha & 2 cottahs was a burial ground. A decree was passed accordingly. The pltfs.' case is that since 1928 up to the time when the present suit was filed, there had not been any difficulty or dispute, as the two separate portions were being used for the purposes, as agreed upon in the previous suit, until an attempt was made by some members of the public to use a portion of the playground to bury dead bodies in the suit land. That was the occasion for the filing of the present suit.

(3.) The defts. were also impleaded in their representative capacity. Of those, defts. 11 & 25 contested the suit denying the allegation made in the plaint claiming inter alia that the entire 3 bighas & 1 cottah plot formed the burial ground of the Muslims & also pleading that the previous decision on compromise was not binding on the public.