Sadiq Mohd. and Another vs Sewa Singh and Others

Hemant Gupta, J.—Some of the defendants are in second appeal aggrieved against the judgment and decree passed by the learned trial Court on 19.12.1991 and affirmed by the learned first Appellate Court on 27.03.1993 whereby the suit for injunction restraining the defendants from encroaching upon the suit land and to change its user and cause damage to the running well was decreed. The plaintiff filed the suit for injunction on the ground that there is a well in running condition which is used for drawing water but the defendants threaten to encroach upon the suit land and change its course. The defendant, in the written statement, asserted possession of the suit land.

It was asserted that well in question is dry and was not being used by inhabitants of the village for the last more than 20 years and that the defendants and other Muslims of the village constructed a mosque in the suit property, the walls of which are about 5 ft. high. On the basis of pleadings of the parties, the learned trial Court framed the following issues:-

Whether there is any well for drinking water in the disputed property? OPP

Whether plaintiff has any locus standi to file this suit? OPP

Relief.

The learned trial Court appointed Sh. V.K. Arora, Advocate, as local commissioner, who has submitted his report dated 16.1.1990 Ex. P5. He reported that there was a well existing on the spot for supply of drinking water to the beneficiaries though at the time of his visit on 07.12.1989, the well was not in running condition. The learned trial Court found from the Jamabandi Ex. P1 for the year 1984-85, Misal Haqiat Ex. P2 for the year 1986-87 and Jamabandi Ex. P3 for the year 1989-90 that their exist a well for drinking water. The learned trial Court also considered the evidence of the defendant to the effect that the well is dry. On the basis of the evidence led by the parties, the learned trial Court found that the suit was filed in the representative capacity and decreed the suit restraining the defendants from encroaching upon land bearing Khewat/Khatoni No. 161/206 Khasra No. 136(1-9), Ghair Mumkin Chah Abnoshi situated in village Nandpur and from changing the user of the land and causing any damage to the well and the Khal existing therein. Such finding was affirmed in appeal.

Before this Court, learned counsel for the appellant has argued that the appellant has asserted that the suit land is land of Takia i.e. for the common purpose of the Muslim, hence, the plaintiff is not entitled to seek any injunction. The parties went to trial on the issues mentioned above. There is no issue in respect of nature of land vesting in the Mohammedans or that the land is reserved for common purposes of the Muslims. Both the Courts have found that the well is existing on the spot and that there is no Mosque. Since there was no issue framed regarding the land as land of Takia vesting in Mohammedans, the appellant cannot be permitted to raise such an argument in second appeal before this Court for the first time. It is open to the defendant to establish their right in appropriate proceedings in accordance with law. I do not find any substantial question of law arises for consideration of this Court in the present second appeal. The user of land is finding based on evidence. It is finding of fact. Consequently, the present regular second appeal is dismissed.