RAMCHANDRA SINGH Vs. PARTAPSINGH

JUDGEMENT

(1.) THIS second appeal of defendant Ramchander Singh is directed against the judgment and decree of the learned Civil Judge of Jalore, dated March 20, 1959. It arises in these circumstances.

(2.) THE parties are residents of Sayla, which was once a jagir village. Defendant Ramchander Singh, obtained a 'patta' from the other defendant Raghunath Singh, who was then the Jagirdar of the village, on December 4, 1954, for a piece of land in the village marked GDCYEF, made some construction on portion AXYD thereof, and also built a small platform on portion XDCY. All these have been shown in site plan Ex. 1. This was considered by the villagers, to be an encroachment on the village 'akhariya' (or common land at the extreme end of the village), which has been marked in green chalk in the site plan. The plaintiffs therefore, raised the present suit, in a representative capacity, in the court of the Munsiff of Jalore, on September 10, 1957. They pleaded that the portion of land marked GDCYEF, was a part of the village 'akhariya', which had been in existence, for over a hundred years and had been used as the common land of the village, for the grazing and resting of the village cattle. Thus the plaintiffs pleaded, that defendant Ramchander Singh reduced the size of the 'akhariya', resulting in general inconvenience to the villagers. They also pleaded, that the 'patta' had been obtained by Ramchander Singh, in collusion with defendant Raghunath Singh, as the latter had no authority to issue a 'patta' for land, which was meant for common use. The plaintiffs therefore, prayed for a declaration, that the piece of land marked GDCYEF, was meant for the common use of the villagers, and for the use of their cattle. They also prayed for the removal of the so -called illegal possession of Ramchander Singh, by demolishing the constructions made by him, and for the issue of a permanent injunction, restraining him from interfering with the aforesaid land or any portion of the village 'akhariya'. So also, it was prayed, that the 'patta' in favour of Ramchander Singh, may be cancelled. Defendant Ramchander Singh admitted having taken possession of the disputed land, and obtained a 'patta' from defendant Raghunath Singh. He also admitted, that he had made the constructions referred to by the plaintiffs, but he pleaded, that he had done so after obtaining the 'patta', from the Jagirdar, and under the express authority of the village panchayat. All the other allegations of the plaintiffs were denied including the allegation, that the land was used for grazing the cattle. According to the defendant, the land in question, was an open piece of land and that was why the village cattle used to rest there earlier, but that on account of growth of population, the land had come within the inhabited portion of the village and its use as the resting place of the cattle was prejudicial to public health and sanitation. The defendant pointed oat that this was the reason why an order had been made by the Divisional Panchayat Officer, prohibiting the collection of the village cattle there, and that order had been duly implemented, by the gram panchayat. The charge of obtaining the 'patta' collusively, was also denied. Some other pleas were taken, but it is not necessary to refer to them. Defendant Raghunath Singh did not appear in the trial court and the case proceeded ex parte against him. The learned Munsiff ultimately decreed the suit on Novembar 24, 1958, and the contesting defendant's appeal, against that judgment and decree having been dismissed by the learned Civil Judge of Jalore, as aforesaid, defendant Ramchander Singh has preferred this second appeal.

(3.) FIRSTLY , a perusal of the impugned judgment shows, that the learned Civil Judge ailed to appreciate the difference between a customary right and a customary easement, for he has used these terms indiscriminately, as if they were synonyms. It is not surprising, therefore, that he should have failed to appreciate the precise nature of the controversy and the kind of evidence, necessary to prove the plaintiffs' claim. Secondly, the learned Civil Judge went to the extent of travelling beyond the scope of the controversy, in holding that the land was used for other public purposes, like the holding of fairs, burning of 'holi', and resting of marriage parties. As I shall show a little later, the plaintiffs did not claim any such user of the land, in their plaint and did not join issue thereon. The learned Judge therefore fell into the error of giving his finding, without regard to the pleadings and the points at issue between the parties. Thirdly, he did not at all take note of the order of the Divisional Panchayat Officer, dated July 12, 1957, prohibiting the collection of the village cattle, on the so -called 'akhariya', although that order had been duly tendered in evidence, and had been proved. So also, the learned Judge failed to take note of the order of the gram panchayat, dated October 1, 1957, notifying the aforesaid order of the Divisional Panchayat Officer, for compliance by all concerned. This evidence was important, for the purpose of deciding whether the so -called 'akhariya', could be used any longer as the resting place of the cattle, and the failure to consider it is another defect in the judgment of the court below. Fourthly, the learned Civil Judge did not consider the evidentiary value of the fact that it was the grain panchayat which had granted the sanction on April 29, 1957, to defendant Ramchander Singh, allowing him to make the disputed constructions, on the suit land. As the common lands of the village vested in the gram panchayat, by virtue of Section 88 of the Rajasthan Panchayat Act, 1953, this fact had a bearing on the point in controversy, and there is justification for the submission that an important piece of evidence has been left over altogether from consideration. In view of these serious defects, in appreciating the real nature of the controversy and evidence on the record, I have no doubt that the finding of fact of the courts below, even though concurrent, is vitiated and cannot be said to be binding on this Court. It is therefore necessary for me to go into the controversy, once again.