GUSAIN SINGH Vs. PURAN SINGH

JUDGEMENT

(1.) This is a plaintiffs appeal, and arises out of a suit brought by them against the defendants-respondents for an injunction to restrain the defendants from cultivating plots 1 to 92 in village Kucha. The plaintiffs case was that this land in dispute was unmeasured land in their village and they had a right to graze their cattle in and to take timber from it. The defendants got this land measured and obtained a grant. The plaintiffs stated in para. 4 of their plaint: The plaintiffs caused within their boundary the measurement of the nayabad land worth cultivation, and they left this land only for purposes of grass, fuel and cattle grazing. If no order is passed regarding grant, the defendants shall cultivate this and the plaintiffs shall be deprived of all the rights. There will be nothing left for grass, fuel and cattle grazing. The right enjoyed from generation shall then no more remain.

(2.) The defendants denied that the plaintiffs had any such right, and inter alia contended that the suit was not cognizable by the Civil Court. Both the lower Courts have concurrently found that the suit is cognizable by the Revenue Court and not by the Civil Court, and have dismissed the suit. Rule 14 of the Rules and Orders, Kumaun Division, lays down: Any suit or application to establish a claim affecting the validity of a grant in unmeasured or unassessed land, whether it is cultivated or uncultivated, or to establish a claim to any right in such land, shall be heard and determined by a Revenue Court; and no Court other than such Revenue Court shall take cognizance of any dispute or matter in respect of which any such suit or application might be brought or made. Such a suit or application shall lie in the Court of the Assistant Collector in charge of the sub-division.

(3.) Apparently this rule covers the present case, inasmuch as the plaintiffs suit is in respect of the validity of the grant made in the land in dispute which was unmeasured before the grant, and also to establish a claim to the right of grazing cattle and taking timber which the plaintiffs possessed in this unmeasured land before the grant. It has been urged on behalf of the appellants that the land is no longer unmeasured or unassessed and the validity of the grant is not questioned in the suit, consequently Rule 14 does not apply. Rule 14 covers the case to establish a claim to any right in unmeasured or unassessed land. The right which the plaintiffs claim of grazing cattle and taking timber is one which they could exercise only in unmeasured land. The right has been described in the Manual of the Land Tenures of the Kumaun Division by V. A. Stowell, I.C.S. on p. 9. There it is mentioned: Bach village usually comprises a strip of the hill side of more or less width and running from the stream at the bottom of the valley up to the top of the ridge, where it meets the boundary of some village in the valley beyond the ridge. Prom the villages that lie in the same valley on either side of it, it is divided by some natural boundary, such as a torrent bed or a spur of the hill. These boundaries enclose much unmeasured forest and grazing land, the property of Government, as well as the cultivated lands which are the actual property of the villagers and on which they pay land revenue. They are the "assi sal" or "san assi" boundaries of the village, so called from Mr. Train's general measurement and fixing of boundaries for the whole province in 1822 (A.D.) or 1880 Sambat. These boundaries convey no proprietary right of any kind to the villagers over the unmeasured land which they enclose, but they represent the areas in which by custom or user the village has its special grazing- grounds and its separate water-supply and gets its timber, if there is sufficient forest to supply this last.