ATAUR RAHMAN Vs. MASTAKIM ALI

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against the judgment and decree dated 15th May, 2003 passed by the learned Civil Judge (Senior Division), Karimganj, in Title Appeal No. 26/2000, dismissing the appeal preferred by the present appellants by affirming the judgment and decree dated 9th June, 2000 passed by the learned Civil Judge (Junior Division) No. 1, Karimganj in Title Suit No. 87/1996, whereby and whereunder the suit filed by the present appellants has been dismissed. The appellants as plaintiffs instituted the suit, in representative capacity, after obtaining leave of the Court as required under Order 1 Rule 8 CPC, praying for declaration that the land measuring 0.49 Acre, more fully described in Schedule to the plaint, is a graveyard used by the residents of Deoakuri and Mirjadipur Villages, over which the defendants have no right, title and interest or possession, apart from confirmation of possession of the villagers and also for injunction, contending inter alia that the said land is being used as graveyard by the residents of the aforesaid villages for about 100 years - the land having been given by the original owners for that purpose, thereby creating the Wakf. It has further been contended that in the settlement operation during 1959-67, the suit land was recorded as Wakf in the name of Mutawali of Deoakuri Mosque in Dag No. 332 of Khatian No. 39. The further pleaded case is that the suit land is spread over in 3 (three) Dags in Khatian No. 39 and land in Dag No. 332 has been recorded as pond in the revenue record wrongly instead of graveyard and instead of recording Dag No. 327 as a pond. The plaintiffs further contended that since the defendants in collusion have got their names mutated in the revenue records, they have to institute the suit praying for the reliefs, as noticed above.

(2.) The suit of the plaintiffs has been contested by the defendants, other than the defendant No. 2, by filing joint written statement, denying the claim of the plaintiffs and contending that the suit land belongs to the answering defendants and they have been enjoying the same. It has further been contended that the suit land was never used as a graveyard by the villagers of the aforesaid villages as contended by the plaintiffs but part of the suit land has been used as a private graveyard by the defendants. The plea of maintainability of the suit, in view of the provision contained in Section 154 of the Assam Land and Revenue Regulation, 1886 (in short, "1886 Regulation"), has also been raised, apart from non-joinder of necessary party, i.e. the Settlement Officer.

(3.) The trial Court, based on the pleadings of the parties, framed the following issues for determination:-