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2006 DIGILAW 282 (JHR)

MD. KHALIF v. H. H. RAHMAN

2006-03-28

N.N.TIWARI

body2006
Judgment : ( 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 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. 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. ( 4 ) ON perusal of the impugned judgment of learned Court below, I find that the entire case has been thoroughly discussed, the evidence are duly considered and after thorough appraisal of oral as well as documentary evidence, learned Lower appellate Court has come to the finding that the Muslim Community of Hazaribagh acquired an indefeasible right to use the vacant land. The purpose of offering prayers in the Mosque, Imambara Majar, since the time immemorial as has been also admitted by the witnesses of the defendants. It has further been held that the Cadastral Survey record of Rights goes to show that the defendants and their ancestors were recorded as Muntazimkar Karim Shah which means Secretary of State, Indian Council and they have got their house on plot No. 15. It has further been submitted that the defendants have made out a case, different from what was recorded in the Record of rights, but they have not challenged the entry in Khatian for about last one century. The Lower Appellate Court, thus, concluded that the defendants and their ancestors had accepted as Manager and property as recorded in the said Khatian and that the members of the Muslim Community have been offering their prayer in the Mosque and using the suit land from the time immemorial. The Lower Appellate Court, thus, concluded that the defendants and their ancestors had accepted as Manager and property as recorded in the said Khatian and that the members of the Muslim Community have been offering their prayer in the Mosque and using the suit land from the time immemorial. It has been held that the defendants are entitled to use the land of plot No. 15 in the manner as recorded in the said Khatian, but they have got no right to obstruct the members of the Muslim community from going over the vacant land and using the same by putting up any construction over the said land. The Court below has further decided the issues of injunction in favour of the plaintiff by restraining the defendants permanently from making any construction over Plot No. 12 and directing to remove the construction, if already made by the defendant within a period of 30 days. Learned Lower Appellate court, on those findings, dismissed the appeal. ( 5 ) MR. L. K. Lal, learned counsel appearing for the appellants, tried to assail the impugned judgment and decree on two grounds. Firstly, he contended that the right of easement cannot be claimed against the defendants/appellants as the suit property was vested in the Secretary, Government of india in Council and secondly, that the right of easement cannot be granted in absence of the pleading that the plaintiffs have been using and enjoying their right for easement for more than 22 years, as required to be pleaded and proved in view of the provisions of Sections 15 and 18 of the Indian easements Act, 1882. ( 6 ) MR. M. S. Akhtar, learned counsel appearing on behalf of the respondents, on the other hand submitted that the plaintiffs have not prayed for a decree based on their right of easement rather they have prayed for a customary right for using the said land which they have been using since time immemorial and which was also found recorded in the Record of Rights in the year 1913. Learned counsel submitted that the secretary of State, Indian Council is the landlord and the property was recorded as gairmazrua Khas and recipient of tax as muntazimkar of Madara Shah. The defendants are not the owners of the property. Learned counsel submitted that the secretary of State, Indian Council is the landlord and the property was recorded as gairmazrua Khas and recipient of tax as muntazimkar of Madara Shah. The defendants are not the owners of the property. He further submitted that the defendants ancestors were only recognized as Muntazimkar, i. e. Manger and they have no independent right, title over the suit property. On considering the documentary as well as oral evidence and materials on record, learned Courts below have rightly held that the said Record of Rights prepared in the year 1913, i. e. near about a century ago, was not earlier challenged by the defendants. Learned Courts below have, thus, discussed every aspects and have recorded their findings of facts which cannot be interfered with in the second appeal. ( 7 ) HAVING heard learned counsel for the parties and perused the judgments and decrees of learned Courts below, I find that learned Courts below have thoroughly discussed and considered all the evidence on record and have come to the finding of facts that the plaintiffs who are the members of the Muslim Community of the locality have proved their right to use the land in question, which they have been using and enjoying since the time immemorial. The Courts below have further found that the suit property was recorded in the name of the Secretary of State , indian Council, i. e. Government of India as gairmazrua Khas and the defendants ancestors were recognized as Muntazimkar of the Imambara and Majar of Data Madara shah where number of persons used to visit and pay respects. The Mumtazimkars were given the right as recipients of the offerings whose shares were defined along with fakirs. The persons were/are the muntazimkar had/have got no independent right, title over the same. The said finding of facts have been concurrently arrived at by two Courts on appraisal of evidence and materials on record, which cannot be interfered with in second appeal. I find no error or illegality in the impugned judgments and decrees giving rise to any substantial question of law to be framed and decided by this Court in exercise of its second appellate jurisdiction. This appeal is, accordingly, dismissed. Appeal dismissed. --- *** --- .