The plaintiffs produced seven witnesses, who
specifically stated that the land in question was being used for
burial of children and also deposed that children from their
family were also buried there.
The counsel for the appellants vehemently submitted that
none of the witnesses gave out names of the children etc. It has
to be remembered that the suit pertained to burial place for
children, which essentially is utilized for burial of children, who
are generally born premature and cannot survive and are of very
tender age and, therefore, the same is not a very common
phenomena which is evidence from the statement of witnesses,
who have given out instances in past only. It is also an aspect of
common knowledge that such premature children and/or children
of tender age are not even given a name before they succumb
and, therefore, to expect the witnesses to give out the names is
wholly baseless and, absence of which, cannot render their
statements unreliable.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CIVIL SECOND APPEAL NO.155/2013
LRs of Baktaram & Ors.
vs.
Vijay Singh & Ors.
Date of Judgment :: 07th October, 2014
HON'BLE MR. JUSTICE ARUN BHANSALI
Read original judgment here; click here
Citation; AIR2015(NOC)43 RAJ
The facts in brief may be noticed thus : the plaintiffs Vijay
Singh and Dhanna Ram filed a suit for declaration and
permanent injunction against the defendants-appellants with the
averments that plaintiffs were residents of village Sojat Road and
look after the public interest issues; they were elected as Panch
from their respective wards in the Panchayat Elections; in the
urbanized area of Sojat Road a children's cremation place (बच
क शमश न) is situated, which was marked as क, ख, ग and घ in the
map annexed with the plaint; the land was comprised in Khasra
No. 199 ad measuring 0.46 hectasre, which was being used for
over 100 years for burial of deceased children; there were
hundreds of graves of children at the suit land and, on account of
2
such user, the villagers have acquired easement; it was then
averred that village Sojat Road was earlier a Jagirdar village,
whose Jagirdar was Indrajeet Singh S/o Shri Narpat Singh; land
on the eastern side of the suit land was sold by them to Sita
Devi, Pushpa Devi, Rambha Devi and Sri Ram by registered sale
deed, wherein, on the western side reference of disputed burial
place is indicated; such land cannot be sold nor anybody gets
any right in such land; however, defendant No. 1 claiming to
have purchased the suit burial land comprised in Khasra No. 199
from the Jagirdar, got his name recorded in the revenue record,
when in fact the Jagirdar had not executed any sale deed in
favour of Pyare Lal; the Tehsildar for the purpose of correction of
revenue entry and for declaration of suit land as burial place,
filed a suit before the Assistant Collector, Sojat, which was
decided on 20.03.1992 and the land was declared as स व य क
ग र म मककन शमश न (Government land, uncultivable burial place);
against the said order, an appeal was filed before the Revenue
Appellate Authority, who found that declaratory relief could not
be granted by the revenue courts and, therefore, set aside the
decree; it was alleged that the defendants despite resistance by
the villagers, were bent upon trespassing on the suit land, if they
succeed in their attempt, the villagers would be deprived of user;
ultimately, it was prayed that it be declared that the land
comprised in Khasra No. 199 ad measuring 0.46 hectare was a
burial place, regarding which, the villagers have easementry
rights and sought permanent injunction against the defendants
from trespassing on the suit land.
Alongwith the suit, an application under Section 91 CPC
3
was filed seeking leave of the Court to file the suit; the trial court
granted the permission subject to objection.
Despite repeated attempts, the defendants did not file any
written statement, therefore, right to file written statement was
closed.
The trial court noticed that as written statement was not
filed issues were not required to be framed, however, points for
determination were framed.
On behalf of the plaintiffs – seven witnesses were
examined; on behalf of the defendants – five witnesses were
examined.
After hearing the parties, the trial court came to the
conclusion that this fact was undisputedly proved that the suit
land was being used by the villagers as burial ground for children
for a long time; the necessary ingredients regarding dominant
heritage and other ingredients for seeking various kinds of
easements were not available; the plaintiffs were entitled to
declaration regarding the suit land being a cremation
ground/burial place and for permanent injunction; consequently,
the trial court decreed the suit filed by the plaintiffs and declared
the suit land as cremation ground/burial place for dead children
and restrained the defendants from trespassing on the suit land.
Feeling aggrieved, the appellants filed first appeal under
Section 96 CPC.
The first appellate court after hearing the parties, came to
the conclusion that in absence of any written statement, no
credence can be given to the statements of the defendants'
witnesses regarding ownership of the suit land, neither any sale
4
deed executed in favour of Pyare Lal nor any sale in favour of
Bakta Ram (defendant) was produced; from the statements of
the witnesses and the Commissioner report, the user of the suit
land as burial place for children was amply proved, the finding
regarding non-availabilsity of plea of easement was upheld and,
consequently, the appeal filed by the appellants was dismissed.
It is submitted by learned counsel for the appellants that
for the nature of suit filed by the plaintiffs, it was incumbent for
them to adopt procedure under Order I, Rule 8 CPC and the
proceedings under Section 91 CPC were not maintainable; the
plaintiffs utterly failed to prove their case, the suit land is not
recorded as शमश न, the suit filed by the plaintiffs could not have
been decreed merely based on the Commissioner's report. The
appeal involves substantial questions of law.
Reliance was placed on Bhiya & Ors. v. Mangla & Ors. : ILR
(1955) 5 Raj. 910, A.C. Muthiah v. B.C.C.I. & Anr. : 2011 AIR
SCW 3770 and Tirath Ram & Ors. v. Muhammad Abdul Rahim
Shah & Ors. : AIR 1923 Lahore 546.
Learned counsel for the respondents supported the
judgments impugned passed by both the courts below; it was
submitted that in absence of any written statement by the
defendants-appellants, the plea sought to be raised by them is
wholly meaningless and cannot even be looked into, both the
courts have recorded concurrent findings of fact and, therefore,
the second appeal is not maintainable and the same deserves to
be dismissed.
I have considered the rival submissions made by learned
counsel for the parties.
5
The suit was filed by the plaintiffs seeking declaration and
permanent injunction against the respondents regarding the suit
land being a cremation ground/burial place for children and
restraint against the defendants from trespassing or interfering
at the said land; alongwith the suit an application under Section
91 CPC was filed by the plaintiffs, inter alia, seeking leave to file
the suit for preventing the public nuisance by the defendants;
the trial court granted permission 'subject to objection'; despite
service, the defendants-appellants did not file any written
statement, whereafter the points for determination were framed
by the trial court and evidence was led by the parties, resulting
in the impugned judgments as noticed hereinbefore.
The emphasis of the defendants before the trial court, first
appellate court and even before this Court has been that the suit
was not maintainable under Section 91 CPC and as proceedings
under Order I, Rule 8 CPC have not been adopted, the
proceedings are vitiated.
Section 91 CPC reads thus:-
“91. Public nuisances and other wrongful acts
affecting the public. - (1) In the case of a public nuisance
or other wrongful act affecting, or likely to affect, the
public, a suit for a declaration and injunction or for such
other relief as may be appropriate in the circumstances of
the case, may be instituted,-
(a) by the Advocate-General, or
(b) with the leave of the Court, by two or more persons,
even though no special damage has been caused to
such persons by reason of such public nuisance or
other wrongful act.
(2) Nothing in this section shall be deemed to limit or
otherwise affect any right of suit which may exist
independently of its provisions.”
The said Section permits institution of a suit by two or
more persons aggrieved by a public nuisance or wrongful act for
a declaration and injunction or for such other relief as may be
appropriate in the circumstances of the case.
6
The word 'public nuisance' has not been defined in CPC,
however, Section 3(48) of the General Clauses Act, 1897 ('the
Act of 1897') defines public nuisance thus:-
“3(48) “public nuisance” shall mean a public nuisance as
defined in the Indian Penal Code;”
Section 268 IPC defines offence of public nuisance as
under:-
“268. Public nuisance. - A person is guilty of a public
nuisance who does any act or is guilty of an illegal omission
which causes any common injury, danger or annoyance to
the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who
may have occasion to use any public right.
A common nuisance is not excused on the ground
that it causes some convenience or advantage.”
A combined reading of Section 91 CPC, Section 3(48) of
the Act of 1897 and Section 268 IPC reveals that any act, which
causes common injury, danger or annoyance to the public, who
dwell or occupy property in the vicinity or which causes injury,
obstruction, danger or annoyance to persons who may have
occasion to use any public right is a public nuisance. Though for
Section 268 IPC the requirement is that it must necessarily
cause injury, but under Section 91(1)(b) CPC even though no
special damage is caused to the plaintiffs by reason of public
nuisance, the suit is maintainable.
Besides a suit in connection with a public nuisance, after
the 1976 amendment in the Code of Civil Procedure, a suit in
connection with 'other wrongful acts affecting the public' can also
be instituted under Section 91 CPC. Wrongful act can be
described as an act which unlawfully infringes upon the rights of
another.
The act complained of by the plaintiffs in their suit i.e.
obstruction and/or attempted trespass on the suit land being
7
used by the public as 'children's burial place' would clearly
amount to public nuisance as defined under Section 268 IPC as
the same necessarily cause obstruction and/or annoyance to
persons, who may have occasion to use the public right of burial
at the site.
In any case, the very fact that allegations in the plaint
pertained to obstruction/attempted trespass on a place of public
use, which would clearly be a 'wrongful act affecting the public',
the suit was clearly maintainable under Section 91 CPC.
The reliance placed by the learned counsel for the
appellants on judgments in the cases of Bhiya (supra) and A.C.
Muthiah (supra) have no relevance whatsoever to the present
case. The said judgments pertain to requirements under Order I,
Rule 8 CPC, which have no application to the present case filed
under Section 91 CPC, inasmuch as, requirements in a suit under
Section 91 CPC and a suit under Order I, Rule 8 CPC are totally
different and distinct and the requirements under Order I, Rule 8
CPC cannot be borrowed for the purpose of a suit under Section
91 CPC.
Interestingly, despite the fact that the plaintiffs were
questioning the revenue entry in favour of Pyare Lal, which
entry, though had been set aside by the Assistant Collector, but
came to be set aside by the Revenue Appellate Authority on the
ground of jurisdiction, except for producing the revenue entry in
favour of Pyare Lal, from whom, the appellants claimed to have
purchased the property, no other document i.e. sale deeds in
favour of either Pyare Lal or the appellants herein were
produced. The plaintiffs produced seven witnesses, who
8
specifically stated that the land in question was being used for
burial of children and also deposed that children from their
family were also buried there.
The counsel for the appellants vehemently submitted that
none of the witnesses gave out names of the children etc. It has
to be remembered that the suit pertained to burial place for
children, which essentially is utilized for burial of children, who
are generally born premature and cannot survive and are of very
tender age and, therefore, the same is not a very common
phenomena which is evidence from the statement of witnesses,
who have given out instances in past only. It is also an aspect of
common knowledge that such premature children and/or children
of tender age are not even given a name before they succumb
and, therefore, to expect the witnesses to give out the names is
wholly baseless and, absence of which, cannot render their
statements unreliable.
The local Commissioner appointed by the Court indicated
the following in his report dated 08.03.1994:-
1. म क A स न पर ल ह क पतर क श ड (छपर ) बन ह आ
ह ज# क नन % त&न ब % #म&न पर लग& ह ई ह । व म क B स ल
पर एक ब ड ल ह क लग ह आ ह ज# पर "ब ल म क+ ध म" बड
अकर म% अ/ककत ह । इ & ब ड क ठ2क प&छ प ह3 एक ब4तर
कत ववकत ह लत म% ह # म ध& ह । व प4र व दगसत स ल
ख ल स न ह ज# क क ई र द3व र3 ब ड ध र वग र नह3/ ह ।
व दगसत स ल पर #गह #गह कई बच दफन करन क अल म त
ह व बच दफन ककय ह ए ह उन पर पत र व छ2ण क ट कड
रखकर दब य ह ए ह त कक # नवर ल श क ब हर नह3/ ननक ल
क%। प4र व दगसत स ल म% खणड व छ2ण क ट कड बबखर पड ह ।
त झ ड&य व आकड क प ड खड ह । व दगस स ल म% ल श क
कफन, कपड व क लहड (समट क क लहड) पड व कब क प रख
ह ए ह । कपड छ ट बच क ड प र न व त # ह ।"
From the statements of witnesses and the above
Commissioner report (Exhibit-3), it is apparent that the findings
recorded by the trial court regarding existence of a children's
9
burial place cannot be faulted on any ground and the factual
findings recorded by the courts below cannot be said to be
perverse so as to give rise to any substantial question of law.
So far as the judgment in the case of Tirath Ram (supra) is
concerned, the Court in the said case opined that a judgment
should not be based solely on the result of a personal local
inspection made by the Judge. In the present case neither the
local inspection has been made by the Judge nor the judgment is
solely based on the result of local inspection done by the
Commissioner appointed by the Court and, as such, the above
judgment has no application to the facts of the present case as
besides the fact that no objections to the inspection report were
filed, the local inspection report was marked as Exhibit-3 by the
plaintiffs and the witnesses were cross-examined on the said
report as well and, therefore, it cannot be said that the report
Exhibit-3 could not be relied on by the courts below.
In view of the above discussion, there is no substance in
this appeal and the same alongwith the stay application are
dismissed. No costs.
(ARUN BHANSALI), J.
Print Page
specifically stated that the land in question was being used for
burial of children and also deposed that children from their
family were also buried there.
The counsel for the appellants vehemently submitted that
none of the witnesses gave out names of the children etc. It has
to be remembered that the suit pertained to burial place for
children, which essentially is utilized for burial of children, who
are generally born premature and cannot survive and are of very
tender age and, therefore, the same is not a very common
phenomena which is evidence from the statement of witnesses,
who have given out instances in past only. It is also an aspect of
common knowledge that such premature children and/or children
of tender age are not even given a name before they succumb
and, therefore, to expect the witnesses to give out the names is
wholly baseless and, absence of which, cannot render their
statements unreliable.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CIVIL SECOND APPEAL NO.155/2013
LRs of Baktaram & Ors.
vs.
Vijay Singh & Ors.
Date of Judgment :: 07th October, 2014
HON'BLE MR. JUSTICE ARUN BHANSALI
Read original judgment here; click here
Citation; AIR2015(NOC)43 RAJ
The facts in brief may be noticed thus : the plaintiffs Vijay
Singh and Dhanna Ram filed a suit for declaration and
permanent injunction against the defendants-appellants with the
averments that plaintiffs were residents of village Sojat Road and
look after the public interest issues; they were elected as Panch
from their respective wards in the Panchayat Elections; in the
urbanized area of Sojat Road a children's cremation place (बच
क शमश न) is situated, which was marked as क, ख, ग and घ in the
map annexed with the plaint; the land was comprised in Khasra
No. 199 ad measuring 0.46 hectasre, which was being used for
over 100 years for burial of deceased children; there were
hundreds of graves of children at the suit land and, on account of
2
such user, the villagers have acquired easement; it was then
averred that village Sojat Road was earlier a Jagirdar village,
whose Jagirdar was Indrajeet Singh S/o Shri Narpat Singh; land
on the eastern side of the suit land was sold by them to Sita
Devi, Pushpa Devi, Rambha Devi and Sri Ram by registered sale
deed, wherein, on the western side reference of disputed burial
place is indicated; such land cannot be sold nor anybody gets
any right in such land; however, defendant No. 1 claiming to
have purchased the suit burial land comprised in Khasra No. 199
from the Jagirdar, got his name recorded in the revenue record,
when in fact the Jagirdar had not executed any sale deed in
favour of Pyare Lal; the Tehsildar for the purpose of correction of
revenue entry and for declaration of suit land as burial place,
filed a suit before the Assistant Collector, Sojat, which was
decided on 20.03.1992 and the land was declared as स व य क
ग र म मककन शमश न (Government land, uncultivable burial place);
against the said order, an appeal was filed before the Revenue
Appellate Authority, who found that declaratory relief could not
be granted by the revenue courts and, therefore, set aside the
decree; it was alleged that the defendants despite resistance by
the villagers, were bent upon trespassing on the suit land, if they
succeed in their attempt, the villagers would be deprived of user;
ultimately, it was prayed that it be declared that the land
comprised in Khasra No. 199 ad measuring 0.46 hectare was a
burial place, regarding which, the villagers have easementry
rights and sought permanent injunction against the defendants
from trespassing on the suit land.
Alongwith the suit, an application under Section 91 CPC
3
was filed seeking leave of the Court to file the suit; the trial court
granted the permission subject to objection.
Despite repeated attempts, the defendants did not file any
written statement, therefore, right to file written statement was
closed.
The trial court noticed that as written statement was not
filed issues were not required to be framed, however, points for
determination were framed.
On behalf of the plaintiffs – seven witnesses were
examined; on behalf of the defendants – five witnesses were
examined.
After hearing the parties, the trial court came to the
conclusion that this fact was undisputedly proved that the suit
land was being used by the villagers as burial ground for children
for a long time; the necessary ingredients regarding dominant
heritage and other ingredients for seeking various kinds of
easements were not available; the plaintiffs were entitled to
declaration regarding the suit land being a cremation
ground/burial place and for permanent injunction; consequently,
the trial court decreed the suit filed by the plaintiffs and declared
the suit land as cremation ground/burial place for dead children
and restrained the defendants from trespassing on the suit land.
Feeling aggrieved, the appellants filed first appeal under
Section 96 CPC.
The first appellate court after hearing the parties, came to
the conclusion that in absence of any written statement, no
credence can be given to the statements of the defendants'
witnesses regarding ownership of the suit land, neither any sale
4
deed executed in favour of Pyare Lal nor any sale in favour of
Bakta Ram (defendant) was produced; from the statements of
the witnesses and the Commissioner report, the user of the suit
land as burial place for children was amply proved, the finding
regarding non-availabilsity of plea of easement was upheld and,
consequently, the appeal filed by the appellants was dismissed.
It is submitted by learned counsel for the appellants that
for the nature of suit filed by the plaintiffs, it was incumbent for
them to adopt procedure under Order I, Rule 8 CPC and the
proceedings under Section 91 CPC were not maintainable; the
plaintiffs utterly failed to prove their case, the suit land is not
recorded as शमश न, the suit filed by the plaintiffs could not have
been decreed merely based on the Commissioner's report. The
appeal involves substantial questions of law.
Reliance was placed on Bhiya & Ors. v. Mangla & Ors. : ILR
(1955) 5 Raj. 910, A.C. Muthiah v. B.C.C.I. & Anr. : 2011 AIR
SCW 3770 and Tirath Ram & Ors. v. Muhammad Abdul Rahim
Shah & Ors. : AIR 1923 Lahore 546.
Learned counsel for the respondents supported the
judgments impugned passed by both the courts below; it was
submitted that in absence of any written statement by the
defendants-appellants, the plea sought to be raised by them is
wholly meaningless and cannot even be looked into, both the
courts have recorded concurrent findings of fact and, therefore,
the second appeal is not maintainable and the same deserves to
be dismissed.
I have considered the rival submissions made by learned
counsel for the parties.
5
The suit was filed by the plaintiffs seeking declaration and
permanent injunction against the respondents regarding the suit
land being a cremation ground/burial place for children and
restraint against the defendants from trespassing or interfering
at the said land; alongwith the suit an application under Section
91 CPC was filed by the plaintiffs, inter alia, seeking leave to file
the suit for preventing the public nuisance by the defendants;
the trial court granted permission 'subject to objection'; despite
service, the defendants-appellants did not file any written
statement, whereafter the points for determination were framed
by the trial court and evidence was led by the parties, resulting
in the impugned judgments as noticed hereinbefore.
The emphasis of the defendants before the trial court, first
appellate court and even before this Court has been that the suit
was not maintainable under Section 91 CPC and as proceedings
under Order I, Rule 8 CPC have not been adopted, the
proceedings are vitiated.
Section 91 CPC reads thus:-
“91. Public nuisances and other wrongful acts
affecting the public. - (1) In the case of a public nuisance
or other wrongful act affecting, or likely to affect, the
public, a suit for a declaration and injunction or for such
other relief as may be appropriate in the circumstances of
the case, may be instituted,-
(a) by the Advocate-General, or
(b) with the leave of the Court, by two or more persons,
even though no special damage has been caused to
such persons by reason of such public nuisance or
other wrongful act.
(2) Nothing in this section shall be deemed to limit or
otherwise affect any right of suit which may exist
independently of its provisions.”
The said Section permits institution of a suit by two or
more persons aggrieved by a public nuisance or wrongful act for
a declaration and injunction or for such other relief as may be
appropriate in the circumstances of the case.
6
The word 'public nuisance' has not been defined in CPC,
however, Section 3(48) of the General Clauses Act, 1897 ('the
Act of 1897') defines public nuisance thus:-
“3(48) “public nuisance” shall mean a public nuisance as
defined in the Indian Penal Code;”
Section 268 IPC defines offence of public nuisance as
under:-
“268. Public nuisance. - A person is guilty of a public
nuisance who does any act or is guilty of an illegal omission
which causes any common injury, danger or annoyance to
the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who
may have occasion to use any public right.
A common nuisance is not excused on the ground
that it causes some convenience or advantage.”
A combined reading of Section 91 CPC, Section 3(48) of
the Act of 1897 and Section 268 IPC reveals that any act, which
causes common injury, danger or annoyance to the public, who
dwell or occupy property in the vicinity or which causes injury,
obstruction, danger or annoyance to persons who may have
occasion to use any public right is a public nuisance. Though for
Section 268 IPC the requirement is that it must necessarily
cause injury, but under Section 91(1)(b) CPC even though no
special damage is caused to the plaintiffs by reason of public
nuisance, the suit is maintainable.
Besides a suit in connection with a public nuisance, after
the 1976 amendment in the Code of Civil Procedure, a suit in
connection with 'other wrongful acts affecting the public' can also
be instituted under Section 91 CPC. Wrongful act can be
described as an act which unlawfully infringes upon the rights of
another.
The act complained of by the plaintiffs in their suit i.e.
obstruction and/or attempted trespass on the suit land being
7
used by the public as 'children's burial place' would clearly
amount to public nuisance as defined under Section 268 IPC as
the same necessarily cause obstruction and/or annoyance to
persons, who may have occasion to use the public right of burial
at the site.
In any case, the very fact that allegations in the plaint
pertained to obstruction/attempted trespass on a place of public
use, which would clearly be a 'wrongful act affecting the public',
the suit was clearly maintainable under Section 91 CPC.
The reliance placed by the learned counsel for the
appellants on judgments in the cases of Bhiya (supra) and A.C.
Muthiah (supra) have no relevance whatsoever to the present
case. The said judgments pertain to requirements under Order I,
Rule 8 CPC, which have no application to the present case filed
under Section 91 CPC, inasmuch as, requirements in a suit under
Section 91 CPC and a suit under Order I, Rule 8 CPC are totally
different and distinct and the requirements under Order I, Rule 8
CPC cannot be borrowed for the purpose of a suit under Section
91 CPC.
Interestingly, despite the fact that the plaintiffs were
questioning the revenue entry in favour of Pyare Lal, which
entry, though had been set aside by the Assistant Collector, but
came to be set aside by the Revenue Appellate Authority on the
ground of jurisdiction, except for producing the revenue entry in
favour of Pyare Lal, from whom, the appellants claimed to have
purchased the property, no other document i.e. sale deeds in
favour of either Pyare Lal or the appellants herein were
produced. The plaintiffs produced seven witnesses, who
8
specifically stated that the land in question was being used for
burial of children and also deposed that children from their
family were also buried there.
The counsel for the appellants vehemently submitted that
none of the witnesses gave out names of the children etc. It has
to be remembered that the suit pertained to burial place for
children, which essentially is utilized for burial of children, who
are generally born premature and cannot survive and are of very
tender age and, therefore, the same is not a very common
phenomena which is evidence from the statement of witnesses,
who have given out instances in past only. It is also an aspect of
common knowledge that such premature children and/or children
of tender age are not even given a name before they succumb
and, therefore, to expect the witnesses to give out the names is
wholly baseless and, absence of which, cannot render their
statements unreliable.
The local Commissioner appointed by the Court indicated
the following in his report dated 08.03.1994:-
1. म क A स न पर ल ह क पतर क श ड (छपर ) बन ह आ
ह ज# क नन % त&न ब % #म&न पर लग& ह ई ह । व म क B स ल
पर एक ब ड ल ह क लग ह आ ह ज# पर "ब ल म क+ ध म" बड
अकर म% अ/ककत ह । इ & ब ड क ठ2क प&छ प ह3 एक ब4तर
कत ववकत ह लत म% ह # म ध& ह । व प4र व दगसत स ल
ख ल स न ह ज# क क ई र द3व र3 ब ड ध र वग र नह3/ ह ।
व दगसत स ल पर #गह #गह कई बच दफन करन क अल म त
ह व बच दफन ककय ह ए ह उन पर पत र व छ2ण क ट कड
रखकर दब य ह ए ह त कक # नवर ल श क ब हर नह3/ ननक ल
क%। प4र व दगसत स ल म% खणड व छ2ण क ट कड बबखर पड ह ।
त झ ड&य व आकड क प ड खड ह । व दगस स ल म% ल श क
कफन, कपड व क लहड (समट क क लहड) पड व कब क प रख
ह ए ह । कपड छ ट बच क ड प र न व त # ह ।"
From the statements of witnesses and the above
Commissioner report (Exhibit-3), it is apparent that the findings
recorded by the trial court regarding existence of a children's
9
burial place cannot be faulted on any ground and the factual
findings recorded by the courts below cannot be said to be
perverse so as to give rise to any substantial question of law.
So far as the judgment in the case of Tirath Ram (supra) is
concerned, the Court in the said case opined that a judgment
should not be based solely on the result of a personal local
inspection made by the Judge. In the present case neither the
local inspection has been made by the Judge nor the judgment is
solely based on the result of local inspection done by the
Commissioner appointed by the Court and, as such, the above
judgment has no application to the facts of the present case as
besides the fact that no objections to the inspection report were
filed, the local inspection report was marked as Exhibit-3 by the
plaintiffs and the witnesses were cross-examined on the said
report as well and, therefore, it cannot be said that the report
Exhibit-3 could not be relied on by the courts below.
In view of the above discussion, there is no substance in
this appeal and the same alongwith the stay application are
dismissed. No costs.
(ARUN BHANSALI), J.
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