SHEIKH AMIRUDDIN Vs. SONELAL JHA

JUDGEMENT

(1.) This is an appeal by the defendants second party. The plaintiffs brought the suit alleging that in the year 1904 they took settlement from Bibi Wahid-unnisa of 1 bigha 10 kathas forming part of plot No. l66 of village Bishunpur Fazila. This plot, the total area of which is 2 bighas 17 kathas, is said to have been in exclusive possession of Wahidunnissa as seven annas co-sharer landlord of the village, and settlement with the plaintiffs is said to have been made on a rental of Rs. 6-3-0. The defendants first party are the successors-in-interest of Wahidunnissa and defendants third party are the remaining co-sharer landlords. In the cadastral survey, finally published in about the year 1900, the entire plot was recorded as "gair mazrua am" in possession of the Muhammadans of the locality for use as a graveyard. The plaintiffs suggested that owing to the decline in the local Muhammadan population, the landlord took possession of the surplus portion of the graveyard and settled it with them. The plaintiffs also claimed to have planted trees on the land and to have surrounded it with a fence. In the year 1929 the defendants first party interfered with the plaintiffs possession, and there was a criminal case in which the defendants first party were discharged. In their written statement in that case, the defendants first party claimed that the land was in possession of the defendants second party who are Muhammadans of the village. The plaintiffs, therefore, sued for a declaration of their occupancy rights in the land and for confirmation or recovery of possession or for such relief as they might be entitled to. The defendants first party denied the alleged settlement and claimed that the land was part of the graveyard. Defendants second party also claimed it as graveyard. The trial Court dismissed the suit holding that the plaintiffs had not proved settlement or possession within twelve years of the suit. The Subordinate Judge on appeal decreed the suit, holding that the plaintiffs had taken settlement in the year 1904 and have remained in possession till the year 1929 when they were ousted illegally by the defendants first party.

(2.) The learned Subordinate Judge did not consider whether, assuming that Wahid un-nisa did purport to settle the land with the plaintiffs, she had a right to do so. The land is recorded in the cadastral survey of the year 1900 as gair mazrua-am in possession of the Munammadans for use as a graveyard, and this entry has not been seriously challenged. We were referred for the plaintiffs to the decision of a single Judge in Ram Das Sah V/s. Damodar Prasad 4 PLT 223 : 72 Iad. Cas. 218 : AIR 1923 Pay. 346. where it is observed that there is nothing to prevent a landlord from settling gair mazrua-am land in his zamin-dari so long as he does not interfere with the rights which have been acquired by the tenants. With all respect to the learned Judge who decided that case, I am of opinion, that the correct view of the law relating to gair mazruaam lands is that expressed by the Chief Justice and James, J., in a recently decided case of this Court, Second Appeal No. 1379 of 1933 Muhammad Wali-ul-Haq V/s. Ludput Upadhya 169 Ind. Cas. 971 : AIR 1937 Pat. 388 : 16 Pat. 389 : 18 PLT 318 : 10 RP 57 : 3 BR 641. In that case with reference to an argument that the landlord bad complete right of control over a bathing pool situated in gair mazrua am land in his zamindari, James, J., observed: The entry in the Record of Rights cannot be read as warranting any presumption that the zamindar more than any other person has a right of control over these kunds. There are two forms of khatian for non- agricultural land or waste land. In one (gair mazrua malik), is entered land, waste or uncultivated or utilized for building or non-agricultural purposes, which is under the control of the zamindar. In the other (gair mazrua-am or public waste) is land of that kind not under the control of the zamindar; and the only presumption in that connection which can properly be drawn from the entry in the Record of Rights is that this pool is not under the control of the zamindar.

(3.) It follows that Wahidunnissa had no right to settle the land which is the subject-matter of the present case and that the plaintiffs acquired no tenancy right by virtue of such settlement, which is repudiated by defendants first party, the successors in-interest of Wahidunnissa. All that the plaintiffs have been able to establish in this suit, as against the defendants, is that they have been in actual possession of the land since the year 1904. The decree passed by the learned Subordinate Judge must, therefore, be modified as follows: The plaintiffs prayer for declaration of their occupancy right under the defendants first party is refused, but it is declared that the plaintiffs are entitled to possession of the land as against the defendants first, second and third parties. The decree is only binding on the defendants second party, who are Muhammadans, in their individual capacity. The question what rights, if any, the plaintiffs have acquired against the local Muhammadan community with respect to their claim to use the land for the purpose of a graveyard, is left for determina-Uoii in a properly constituted suit. The parties will bear their own costs throughout this present litigation. Agarwala, J.