BABU RAM Vs. SALIM

JUDGEMENT

(1.) THIS judgment shall dispose of two appeals i.e. (1) RSA No.2902 of 1985 and (2) RSA No.1314 of 1994, which have arisen out of two separate suits filed by the parties on the same facts. However, the facts are being taken from RSA No.2902 of 1985. Plaintiff -respondents filed the instant suit in representative capacity on behalf of the Muslims of village Buria Sarkar alleging that the land in dispute measuring 32 Kanals 11 Marlas, as detailed in the plaint, was a Kabrastan and was in existence since time immemorial and the plaintiffs and others were using the said land for digging graveyards and bury the dead -bodies in the same. It was averred that in the column of 'Ownership' in the Jamabandi for the year 1977 -78, the defendants were shown to be the owners of the suit land but the aforesaid entries were wrong and in fact, the plaintiffs and other Muslims of village Buria Sarkar are the owners in possession of the land in dispute. The purpose of the suit land is that of a Kabrastan, as mentioned in the jamabandis for the last many years. The defendants or any other person have no right or authority to change the purpose of the suit land in any manner whatsoever. The defendants were threatening to cultivate the suit land by demolishing the graveyards existing at the spot and they were further preventing the plaintiffs from using the land in dispute as a Kabrastan, and thus, a prayer was made for issuing a decree of permanent injunction restraining the defendants from changing the nature/purpose of the suit property by cultivating the same or by demolishing the graveyards in existence thereon or by dispossessing the plaintiffs and others in any manner from the suit land and by disturbing them and others for using the suit land as a Kabrastan.

(2.) IN the written statement, the defendants denied that the plaintiffs were the residents of village Buria Sarkar. It was further stated that the entire population resides within the Abadi of Buria Jagir. The revenue estate of Buria Sarkar is Be -chirag, meaning thereby without habitation. Defendants No.5 and 6 and their 3 -4 families have recently constructed their residential houses in this area and are residing there. None of the plaintiffs resides in village Buria Sarkar. The suit land is owned by the proprietary body of the village including the defendants, and thus, the proprietors are in cultivating possession of the same since time immemorial. No Muslim was ever buried in any part of this land. The land measuring 12 Kanals 7 Marlas comprising in Khasra Nos.31, 35 and 29 of Khewat No.72/95 and 96 stands reserved for burial ground and vests in the Punjab Wakf Board. Out of this land also, 2 Kanals 10 Marlas of land situated in Khasra No.29 min is being cultivated by the Punjab Wakf Board through Jagram, a non -occupancy tenant. It was further stated that the defendants have been cultivating the suit land for the last more than 12 years without any interruption from any quarter, and thus, the suit was liable to be set aside. It was also stated that the plaintiffs were not in possession of any part of the suit property as the same was not a graveyard and was never used as such, and thus, the suit was not maintainable and was liable to be dismissed.

(3.) IN their replication, the plaintiffs reaffirmed their stand taken in the plaint besides controverting the stand taken by the defendants in their written statement. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: