BABUDHAN TIWARY Vs. RAMDHARI TIWARY

JUDGEMENT

(1.) Defendants 2 to 4 are the appellants. The heirs of original defendant no. 1, who died during the pendency of the action not having joined as the appellants, have been made respondents no. 5 and 6 in this appeal. The plaintiffs in the suit are respondents 1 to 4 in this appeal. The appeal is directed against the judgment and decree of the 1st Additional Subordinate Judge, Arrah, reversing the judgment and decree of the trial court, which had dismissed the suit.

(2.) Respondents 1 to 4 had instituted the suit in a representative capacity under order 1, rule 8, of the Code of Civil Procedure for a declaration that plot no. 522 of Khata no. 180 of village 8asdiha was a Gairmazrua-am land, wherein the plaintiffs along with the other members of the public had acquired the customary right of passage, flowing of excess water, staying of Barat Parties, holding meetings and also for assembling for the worship of Lord Shiva, whose temple was situate nearby. The allegation was that the defendants encroached over the plot in dispute to the extent of - four and half Kathas shown by letters A, B, C and D in the sketch map appended to the plaint The relief prayed for was for the removal of the encroachment after removing the compound wall errected by the appellants and also for restraining the appellant permanently from interferring with the rights of the plaintiffs as also the other villagers. It may be stated here that the total area of plot no. 522 is 1.94 acres and it is admittedly recorded in the survey record of rights as Ghairmazrua-am Rasta. Admittedly again, the house of the main defendants stands on their plot no. 524 which is contiguous north of the disputed plot 522. The other facts need not be given for the purpose of disposal of this appeal.

(3.) Suffice it to say that the defence of the appellants along with the original defendant no. 1 was that the entry in the survey record of rights relating to plot no. 522 was wrong. In fact, it was not a Ghairmazrua-am Rasta plot of land. These defendants had taken settlement of 4 Kathas of land out of this plot from the exlandlords. They had been coming in possession of the same by constructing a boundary wall over the area in question for over 40 years, and as such the plaintiff's suit ought to be dismissed.