Maina Devi vs Jia Lal and Others

Sanjay Karol, J.—Plaintiff-appellant Maina Devi (hereinafter referred to as the plaintiff) has filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 11.1.2012, passed by the learned Additional District Judge, Shimla, in Civil Appeal No. 23-S/13 of 2007, titled as Maina Devi versus Jia Lal and others, whereby judgment and decree dated 12.3.2007, passed by the Civil Judge (Senior Division), Theog, District Shimla, in Civil Suit No. 49-1 of 2005, titled as Maina Devi versus Jia Lal and others, stands affirmed. Plaintiff filed a suit for permanent prohibitory injunction against the defendants-respondents (hereinafter referred to as the defendants). Plaintiff sought decree for injunction restraining the defendants from using the suit land as a cremation ground.

Based on the pleadings of the parties, trial Court framed the following issues:

Whether the plaintiff is entitled for relief of permanent injunction? OPP

Whether the plaintiff is entitled for relief of mandatory injunction? OPP

Relief.

Appreciating the evidence led by the parties as also the material placed on record, trial Court dismissed the suit. Plaintiff could not prove her right over the suit land. Appeal filed by the plaintiff also stands dismissed by the lower appellate Court and the findings of fact affirmed.

Courts below have concurrently held the plaintiff not to have established her right over the suit land. Revenue entries record the suit land to be owned by the State. Plaintiff''s plea of having perfected her title by way of adverse possession has not been accepted by the lower appellate Court. Even otherwise, there is nothing on record to establish this fact. Also, record reveals that the plaintiff''s contention about non-user of the suit land for the purpose of cremation stand repelled by the Courts below.

It is no doubt true that the suit land, which is used as a cremation ground, is just adjoining to the plaintiff''s house, but then it be only noticed that this land, now owned and possessed by the plaintiff, was in fact itself allotted to her by virtue of a grant by the Government. It was open for her not to accept the same.

Lower appellate Court has also looked into various revenue entries and the orders passed by the revenue officials, evidencing the fact that the land in question was also used as a burial ground by the Muslim community at some point in time. As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. No question of law, much-less a substantial question of law arises for determination in this appeal. Hence, the appeal is dismissed.

Appeal stands disposed of, so also the pending application(s), if any.