Mohd.Assad Ullah vs Dula

This second appeal is directed against the order of reversal of the learned District Judge, Bhaderwah, in regular first appeal No. 21/1970 whereby the judgment and decree of the trial court (learned Sub Judge Bhaderwah dated 16.7.1970) has been set aside and the suit raised by the

respondents, was dismissed. The facts giving rise to this appeal are, as under:

That the appellants (hereinafter referred to as the plaintiffs') along with other villagers filed a suit for perpetual injunction against the respondents,

(hereinafter referred to as the defendants) restraining them from interfering or making any encroachment into the grazing and grass cutting rights of the plaintiffs in compartment No. As and 47 respectively situated at Nalla Bula in Tehshil Shade/wah. It was contended in the suit that the defendants have no right of grazing or cutting grass in these compartments. According to them, the defendants, who are the nomadic have throughout been grazing their cattle in the northern portion of Compartment No. 46 and, as they have increased their livestock and have, therefore,

begun to have encroachment upon the plaintiffs'' fights in exercise of their grazing their cattle in compartment No. 45 and cutting grass in

compartment No

The defendants filed their written statement and claimed that they were grazing their cattle in the disputed compartment right from the period of their ancestors and, in that regard, they were living in a residential kotha constructed in Dhula Nallah, which was destroyed by the floods in the year 1985 BK and many of their family members died in the said floods.

Two issues were raised by the trial court, which shortly contained as to whether the plaintiffs were exercising their right of grazing cattle in compartment No. 45 and were also cutting grass in compartment No. 47 and, in case, it was proved in affirmative, whether the defendants were interfering in exercise of their such rights.

On the full trial of the case, the learned trial court on the memorandum of evidence found that the plaintiffs were solely grazing their cattle in compartment No. 45 and were cutting the grass in compartment No. 47. The learned Distinct Judge reversed this finding on the gourds that the trial court did not take into consideration the documentary evidence produced before it that respondents were grazing their cattle in the suit compartments for the last more than 40 years and have thus acquired their unimpeachable right to do so permanently, without any interference

from the plaintiff?

Nobody appeared on behalf of the defendants/respondents in this court in spite of service through publications made in daily Hind Samachar and,

therefore, they were set expert by the order of this court dated 431982.

Heard learned counsel for the plaintiffs and alto bestowed my thoughtful consideration over the record on the file. The counsel for the

plaintiffs/appellants argued that the learned first appellate court has misinterpreted and erred while placing reliance on the documents produced by the defendants, which were inadmissible in evidence. It was in (his context of the arguments that I went through the evidence to have been recorded by the trial court. All the plaintiffs witnesses, namely, Abdul Qayoom, Ahmedi Beg, Mohd. Beg, Mohamdoo Bhat, Badri Nath and

Ghulam Ahmed have been unanimous to say that the residence of village Kunja, Tehsil Bhaderwah, to which village the plaintiffs belong, have been exercising their right graze their cattle in compartment No. 45 and they have been cutting grass in compartment No. 47 No doubt, there are certain contradictions in their statements wherein they have mentioned that sometimes the defendants, namely, Juman Gujar brought his cattle for grazing in compartment No. 45 but he was sent back by the villagers and he was net having any permanent right to graze cattle in these compartments. The whole controversy which could not be resolved by both the courts below, emanates from the fact that Dula Nallah is a demarcation line which divides various compartments and, to that effect, no map has been prepared, either by the parties or the same does not become clear from the documentary evidence to have been produced by the parties, which consists of some reports and the orders to have been passed by the forest

department, of which the copies are on the file. A perusal thereof indicates that some dispute had arisen between Juman Gujar and one Ghulam

Mohammed who was depriving him from grazing his cattle in the forest area. In this regard, a report was made by the Range Officer, Neeru, by virtue of which, he had informed the D. P. Bhaderwah, that Juman Gujjar has been living at Cherian Topper with his cattle and one Sardar Singh who was incharge of the beat, had been seeing Juman Gujar and said Ghulam Mohammed grazing commonly on the disputed area and in this

regard, he had requested the D.F.O. concerned that Juman Gujar be allowed to exercise his grazing rights over the land with the help of the police.

On this report, it was ordered that both the parties i.e. Ghulam Mohammad of Shungli and Juman Gujjar were commonly grazing their cattle in the disputed area and Juman Gujjar was paying the grazing fee to the forest department and the said Ghulam Mohammed could not deprive him from grazing his cattle in the area. As such, it becomes clear that Juman Gujar one of the defendants was grazing his cattle in Cherian Topper and was living along with his cattle in that area. One of the defendant's witnesses Gulab Chand has stated that both plaintiffs and defendants are known to him and that he had worked as a Forest Guard for thirty years and found that the villagers of Bumja and Juman Gujjar were grazing their cattle in compartments 45, 46 and 47. Juman Gujar had a kotha in these compartments and was putting up their. Great emphasis was aid by the first appellate court on the fact that Juman Gujjar had constructed a kotha, in Dula Nallah as a result whereof he was fined by the forest department

and, in that regard, permit No. 137 was issued to him by the forest department for cutting the timber in compartment No. 46, This indicates that

Juman Gujjar had caused damage to compartment No. 46, for which he was fined and had paid damages to the forest department, which, ipso facto shows that he bad constructed his house in compartment No. 46, which is near to Cherian Topper where he lives along with his cattle. The mere contention that he has constructed a house in Dula Nallah does not entitle him to claim that be used to graze his cattle in compartment No. 45

and also was cutting grass in compartment No. 47. No doubt, much emphasis has been laid by the trial court on the evidence of some of the plaintiffs witnesses namely, Kotwal Girdhari Lal, Ahmedi Beg and others. Kotwal Girchari Lal happened to be the Chairman of the Panchayati

Adalat and Ahmedi Beg was its Sarpanch and the dispute between the Gujjars and the villagers was some years before lying in their court. Any finding given by them in the Panchayati proceedings is against the principles of natural justice, for the authority empowered to decide a dispute between the parties, must be one without any bias towards one side or the other in the dispute. It is also a matter of fundamental importance that a person interested in one or the other party should not even formally take part in the proceedings. As the Panchayati Adalat was not competent to adjudicate upon the civil matters like the title suits or with respect to the disputed possession, therefore, any finding recorded by them in any proceeding or any statements made by any party before them in whatsoever capacity, are not admissible and the proceedings being in violation of

law, cannot be given any credence and are not of any importance in the present controversy. The learned trial court has, infect, committed a big blunder in giving some credence to such proceedings, while coming to the conclusion that any of the documents prepared before the Panchayali

Adalat are certainly a piece of evidence, which can be taken into consideration for the purposes of deciding a matter before a civil court of law. As the Panchayati Adalat has enteminse the matter which was beyond its jurisdiction therefore, any complaint made against the defendants that they were encroaching upon the grazing rights of the plaintiffs, is of no sequence and no reliance can be placed on any of the documents to have been prepared by the Panchayat, or taken into consideration by them in a proceeding which was not governed by any of the provisions of the

Panchayati Adulate. However, the preponderance of evidence, which emanates from the statements of the plaintiffs and the defendants witnesses,

clearly narrates that the defendants were casually grazing their cattle in compartment No. 45. And, afterwards, they restrained themselves from coming over there, after it was found by them that they had their rights to graze their cattle in Cheri an Topper near compartment No. 46. It,

therefore, becomes clear that the defendants were grazing their cattle in Cheri an Topper compartment No. 46 and were, in no way, using their right to graze their cattle in compartment No. 45 or by cutting grass in compartment No. 47. On the proper scrutiny of the evidence of the parties,

it is manifestly found that the defendants have never cut grass in compartment No. 47 and have sometimes in a casual manner grazed their cattle in

Compartment No. 45 and they are encroaching upon the rights of the villagers of village Bunjan unnecessarily. Therefore, the suit for permanent injunction with a prayer to restrain them from causing any encroachment upon the rights of the plaintiffs over the compartments 45 and 47 was rightly decreed by the learned trial courts. The learned first appellate court has wrongly reversed the judgment and decree of the trial court. The order of reversel passed by it, is therefore, quashed and the judgment and decree passed by the trial court is upheld. The record be returned to the courts below alongwith a copy of this judgment. Appeal file be consigned to records.