CHANGA Vs. CHAUDHRAIN BHAGWAN DEI

JUDGEMENT

(1.) This is an appeal against a judgment of Mr. Shri Nath, the learned Civil Judge of Bijnor, which I have found to be a model of a laboured, evasive and rambling document To give a picture of the judgment in a single sentence, it is based on a distortion of the most vital document on the record, on documents that had no bearing on the point in issue, on a certain former deposition of one of the defendants-appellants which really was not admissible and on a complete disregard of the entire body of the oral evidence, which, in fact, contained clear admissions of the truth of the case of the party against which the learned Judge decided the case by the witnesses of the opposite party in whose favour he decided it.

(2.) The appellants before me are the six defendants against whom the respondent brought the suit leading to this appeal for possession over plot 05, measuring 11, and plot 98, measuring 7 biswas, total 18 biswas, in village Sarakthal Madhoo, Pargana Dhampur, District Bijnor. These plots together with plot 97 represent the former plot 205. The area of plot 97 is three biswas which the plaintiff did not include in her Claim, that is to say, she claimed possession only over 18 out of the aggregate 21 biswas of the said former plot 205. The plaintiff admitted that those three biswas were the graveyard of the Mohammedan community, represented in this suit by the defendants-appellants, but she denied that the remaining 18 biswas, which she claimed in the suit, formed part of that graveyard. The defendants-appellants case was that the entire biswas constituted a Mohammedan graveyard, that the same had been so from time immemorial and that, therefore, the plaintiff respondent was not entitled to a decree in respect of the land in suit. The simple question in the case was, which of these was the correct version, a question of fact so far as it stood.

(3.) It would be interesting to indicate the plaintiff's case as put in the plaint. I say so, because the version given in that document seems to me of a most amazing nature, which, in its implications, would do violence to the general experience, habits, mode of life and the settled practice followed by a particular community in this country. That averment is contained in para. 2 of the plaint which reads as follows: Before 1926 there was no graveyard in the village but Mohammedans used to bury their dead in vacant fields, and tenants in disregard of those graves used to plough and cultivate their fields.