CHUDASAMA KHOLUBA SARTANSANG Vs. CHUDASAMA TAKHATSANG NARSINGJI

JUDGEMENT

(1.) The plaintiffs filed this suit for a declaration to the effect that Survey Nos. 177 and 40 of the Tagdi village, bounded as described in the plaint, belonged in common to all the 100 Dokda sharers of the village for use as common pasture and grainyard, and for a perpetual injunction restraining the defendants from using the land of the said numbers, either by themselves, or through others, for other purposes, and from interfering with the plaintiffs either by themselves or through others in the use of the same for the said purposes. The plaintiffs case is that the village of Tagdi was first partitioned into two main shares of 50 Dokdas each in 1809, when lands of the Padar and grainyard were kept joint. They rely upon the certified copy of the document passed between the parties ancestors in that year. The original was not forthcoming, but the copy which was produced showed that the original was produced in Court in 1823. It has been ascertained from the original record that the certified copy which had been retained on the file of that suit corresponded with the copy produced, Exhibit 337. There can be no doubt that in that deed of compromise between the two branches the whole of the village Padar, including the khalas or threshing floor, was kept joint.

(2.) It has been contended that the Court could not rely on a certified copy as evidence of the compromise. But considering the time that has expired, there is no reason whatever to doubt that the certified copy retained on the file of that suit is a correct copy of the original. The Courts were perfectly correct in relying on it as showing the terms of the compromise.

(3.) The question is then raised whether the present Survey Nos. 177 and 40 were the village Padar in 1809. A very large number of documents have been referred to, from which it appears that the old Survey Numbers were 33 and 110. The Courts have referred to the village map and to the village Khardas, and came to the conclusion that the present Survey Nos. 177 and 40 are waste open lands. The position of those Survey Numbers on the map at p. 11 of the print shows conclusively that those Survey Numbers from their very position must have been open sites used for the purposes of pasture and grainyards. Survey No. 177 is next to the village site, Survey No. 40 is adjoining the village tank. They have also been entered in the Government Registers as waste land. It is not suggested that they had ever been turned into arable land and had paid assessment. The fact that some of the defendants got their names entered in the Government Survey Records in regard to these two numbers does not in any way change the nature of these lands and make them the separate property of the defendants instead of being joint between the plaintiffs and the defendants.