MOHAMMAD YUSUF Vs. SURAJ BALI SINGH

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff for a declaration that he is the owner of plot 410, which is jungle, situated in village Saraiya in the Jaunpur district, and that the defendants have no interest in it. The defence was that the village originally belonged to the ancestor of the defendants who sold it to the plaintiff's ancestor exempting jungle and waste land. The plot in dispute is the remnant of a jungle, part of which has since become cultivated land. It is pleaded that the plaintiff was not in possession of the plot in dispute at any time within 12 years before the suit and that the defendants have been in proprietary and adverse possession thereof for a considerable length of time. Lastly, it is claimed that the defendants and their ancestors have been grazing their cattle in this jungle and other jungles in the village and taking wood therefrom, that it is not open to the plaintiff to convert the plot into cultivated land and that the plaintiff is bound to leave the jungle intact for the benefit of the defendants. The Courts below have overruled the defence as regards the defendants alleged proprietary right acquired by adverse possession or independently of it. The defendants have been found to be no heirs of the original proprietor who sold the village to the plaintiff's ancestor. The Court of first instance declared their right to graze their cattle in any part of the land in suit which is still jungle. The plaintiff's right of ownership, subject to the above reservation, was declared. The plaintiff-appellant acquiesced in the decree of the trial Court but the defendants appealed. The lower appellate Court modified the decree of the trial Court declaring the defendants : right to graze cattle and collect "dhak" wood in the portion of the plot which still retains the character of a jungle.

(2.) The plaintiff, has appealed to this Court.

(3.) The defendants attempted to establish their long and continued possession of the plot in dispute as heirs of one Matai, who is noted in settlement papers as the person in possession of it (qabiz). The lower appellate Court has found that Matai was a "sadhu" occupying a hut (kuti) in the jungle and that the plaintiff "out of regard for him allowed him the use of the jungle." It has concluded that Matai's "rights in the jungle were merely personal." The respondents case based on their proprietary right and adverse possession failed and has not been pressed before me. The judgment of the lower appellate Court recognising the defendants right to take "dhak" wood is cryptic and the ground on which it is based is not intelligible. The whole question has been disposed of in the following sentence: But the appellants are on stronger ground when they allege that they have a right to graze cattle and collect "dhak" wood in the jungle