MD KHALIF Vs. H H RAHMAN

JUDGEMENT

(1.) This appeal has been preferred by the defendants/appellants against the judgment and decree of affirmance passed by learned District Judge, Hazaribagh in T.A. No. 39 of 1970 dismissing the appellants' appeal and confirming and upholding the judgment and decree of Additional Munsif, Hazaribagh in T.S. No. 8 of 1965. The plaintiffs filed the suit in representative capacity praying relief, inter alia, for declaration that the entire Muslim community have acquired indefeasible right to use the open land in South and East of the mosque and the defendants have no right to curtail their right by making a construction over the southern portion, as shown in red colour and for mandatory injunction commanding upon the defendants to remove the construction and restore the land to its original position. The case of the plaintiff is that the suit land was recorded in Cadestral Survey Khewat No.4 of Village Chapar, Thana Hazaribagh, District Hazaribagh in the name of Madara Shah and Karim Shah who were shown as Muntazimkar. Under the said Khewat, Khata No. 12 was recorded as Gairmazrua Khas and Plot No. 13 measuring 0.04 acre was entered as Madara Shah Ka Takiya Kabar, Plot No. 14 measuring 0.15 acre as Imambara, Plot No. 17 measuring 0.03 acre as Gharbari Parti and Plot No. 12 measuring 0.17 acre consisting of one Pucca well with open vacant land to the South and East and Masjid to the North-West. Further case is that the entire members of the Muslim Community have been offering "Namaz" in the said Mosque since time immemorial and the well is being used for bathing, ablution and other purposes connected with prayers. The open parti land is being used for staying and for gathering of the members before offering prayer in the Mosque. In the South- East corner of the said land, there was a urinal for the use of the persons who assemble for the purpose of offering Namaz five times a day and especially on Friday, when there is an assemblage of a large number of persons for offering congregational prayer. The open space is needed for the Muslim members getting ready for prayers in the Mosque. The defendant, who is one of the descendants of Muntazimkars, without any right, title or interest, was putting up construction of a building to the South of the Mosque and at the instance of some interested persons, illegally obstructed the entire community to use the said land for the purpose, abovementioned. The said action of the defendants gave rise to the cause of action for the suit.

(2.) The defendants appeared and contested the suit stating, inter alia, that the property belonged to the ancestors of the defendants. A Majar Takia and a Mosque were also constructed and the members of the Muslim Community were allowed to offer their prayer. The defendant, being the descendants of the said owner of the property has been coming in possession of the suit land and the said Majar Imam and a Mosque were all constructed by their predecessors-in-interest and the same were/ are in exclusive possession of the said property and the same is not a public property. It has been stated that since the defendants are the owners, they have got every right to enjoy the property in any manner as they like and the plaintiff has got no manner of concern, right, title and interest to obstruct the defendants or other family members of the Madara Sah from putting any construction over the suit land.

(3.) On the basis of the pleading of the parties, several issues were framed by learned Trial Court. One of the issues was as to whether the Muslim Community has acquired right to use the open land including the well over the suit land and another issue was as to whether the defendant has any right to make construction over a portion of Plot No. 12 and whether the plaintiff was entitled to the permanent injunction against the defendants in the abovesaid premises. Both the parties led their oral as well as documentary evidences. After thorough appraisal of the facts and evidences on record, learned Trial Court decided almost all the issues in favour of the plaintiffs and decreed the suit. The defendants had; then, filed appeal in the Court of the District Judge, Hazaribagh being T.A. No. 39 of 1970. The said appeal was dismissed by the Appellate Court. The defendant/appellant filed S.A. No. 76 of 1976(R) against the impugned judgment and decree of the Lower Appellate Court. The said second appeal was disposed of by remanding the case to the first Appellate Court for fresh decision after hearing the parties. It was observed that the property did not belong to the defendant, the appellant being one of them, the Court below shall proceed to decide the right claimed by the respondents that the property belonged to the appellant. The impugned judgment and decree has been passed in the appeal on the said remand.