GHANASHYAM PARIDA Vs. PRAFULLA KUMAR DAS AND ORS.

JUDGEMENT

(1.) AS the questions of fact and law involved in both the appeals and the relative cross -appeals are identical in nature, they are disposed of by this common judgment. The Appellants in both the appeals were Plaintiffs in the trial Court.

(2.) THE disputed land in both the suits from part of plot No. 4() 8 in Khata No. 11/2 of Mouza Joranda in the ex State of Athgarh. It is the case of the Plaintiffs that the land was originally settled by the State with late Srinath Bidhyadhar Samant, father of Laxminath Samant pro forma Defendant No. 6 on rayati basis. Srinath and after him Laxminath were in possession of the said land. 00 -8 -10 -1949 by two separate registered sale -deeds Laxminath sold different portions of plot No. 468 in favour of the Plaintiff in Title Suit Nos. 12 and 13 of 1960. It is the case of the Plaintiffs in both the suits that they continued to be in peaceful possession of their purchased portions of the land after putting ridges around the same and also made application for mutation of their names in place of Laxminath. In course of the said mutation proceeding some of the Defendants claiming to represent the villagers raised objection saying that the land is Bagayat land and the Plaintiffs cannot use the land for cultivation purposes. The villagers also called upon the Plaintiffs not to fence the land as it was being used by them as Gochar for grazing purposes. Thus, the Plaintiffs in both the suits have filed the Emits for declaration that the villagers have no right whatsoever in the said land and that they should he restrainer by permanent injunction from interfering with their possession. The procedure laid down in Order I, Rule 8, Code of Civil Procedure was adopted in this case and the Defendants who appeared in the suit claimed to represent the interest of the villagers while contesting the claim of the Plaintiffs.

(3.) THE learned Munsif upheld the right of the Plaintiff in accordance with the terms of the original lease which authorises Srinath only to grow fruit -bearing trees and not to cultivate the land for raising any crop. He held that the Plaintiff was entitled to place necessary fences in order to protect the fruit - bearing trees from being damaged by cattle or other animals. He rejected the defence case of acquisition of any customary or prescriptive right on the suit -land for grazing purposes and permanently restrained them from utilising the land for any such purpose.