BAKTARAM & ORS Vs. VIJAY SINGH & ORS

JUDGEMENT

(1.) This second appeal under Section 100 CPC is directed against judgment and decree dated 25.05.2013 passed by Additional District Judge, Sojat, District Pali, whereby, judgment and decree dated 17.09.2011 passed by Civil Judge (Junior Division), Sojat, District Pali has been upheld.

(2.) The facts in brief may be noticed thus : the plaintiffs Vijay Singh and Dhanna Ram filed a suit for declaration and permanent injunction against the defendants-appellants with the averments that plaintiffs were residents of village Sojat Road and look after the public interest issues; they were elected as Panch from their respective wards in the Panchayat Elections; in the urbanized area of Sojat Road a children's cremation place XXX XXX XXX is situated, which was marked as XXX in the map annexed with the plaint; the land was comprised in Khasra No. 199 ad measuring 0.46 hectasre, which was being used for over 100 years for burial of deceased children; there were hundreds of graves of children at the suit land and, on account of such user, the villagers have acquired easement; it was then averred that village Sojat Road was earlier a Jagirdar village, whose Jagirdar was Indrajeet Singh S/o Shri Narpat Singh; land on the eastern side of the suit land was sold by them to Sita Devi, Pushpa Devi, Rambha Devi and Sri Ram by registered sale deed, wherein, on the western side reference of disputed burial place is indicated; such land cannot be sold nor anybody gets any right in such land; however, defendant No. 1 claiming to have purchased the suit burial land comprised in Khasra No. 199 from the Jagirdar, got his name recorded in the revenue record, when in fact the Jagirdar had not executed any sale deed in favour of Pyare Lal; the Tehsildar for the purpose of correction of revenue entry and for declaration of suit land as burial place, filed a suit before the Assistant Collector, Sojat, which was decided on 20.03.1992 and the land was declared as (Government land, uncultivable burial place); against the said order, an appeal was filed before the Revenue Appellate Authority, who found that declaratory relief could not be granted by the revenue courts and, therefore, set aside the decree; it was alleged that the defendants despite resistance by the villagers, were bent upon trespassing on the suit land, if they succeed in their attempt, the villagers would be deprived of user; ultimately, it was prayed that it be declared that the land comprised in Khasra No. 199 ad measuring 0.46 hectare was a burial place, regarding which, the villagers have easementry rights and sought permanent injunction against the defendants from trespassing on the suit land.

(3.) Alongwith the suit, an application under Section 91 CPC was filed seeking leave of the Court to file the suit; the trial court granted the permission subject to objection.