IMPORTANT POINT
The court upheld the trial court's jurisdiction to entertain a civil suit for declaration of customary rights, emphasizing the importance of maintaining legal procedures during appeals.

JUDGMENT :

ASHOK KUMAR JAIN, J.

1. Instant second appeal is preferred by appellants-defendants aggrieved from dismissal of Civil Regular Appeal No. 2/2017 by learned Additional District Judge, Chirawa on 09.05.2018 affirming the judgment and decree dated 01.12.2016 in Civil Suit No. 217/1993 passed by learned Civil Judge, Chirawa, District Jhunjhunu.

2. Office has pointed out a delay of 84 days in filing the present civil second appeal and to substantiate the reasons of delay, no application under Section 5 of Limitation Act is filed. Later amended cause-title was filed and office has reported no delay in filing appeal.

3. An application under Order 41 Rule 27 CPC is also filed by the appellants for taking on record, letter of Village Panchayat Ardawat and letter dated 09.06.2017 of Sub Divisional Officer, Chirawa, District Jhunjhunu.

4. Learned counsel for appellants while referring the order dated 01.09.2023 in review application passed by learned Additional District Judge, Chirawa submits that a civil suit for declaration of customary right on a revenue land was filed by respondents-plaintiffs on the ground that land was used by the villagers for public purposes. He submits that during pendency of appeal, the land use was changed and same was allotted by Sub Divisional Officer, Chirawa to Village Panchayat for expansion of Abadi and Village Panchayat has allotted the land to the appellants. He submits that in view of change of use of land to abadi, the decree in suit for declaration rendered infructuous. He submits that the change circumstances were brought on record, by filing application under Order 41 Rule 27 CPC and a request is made to take the documents on record in form of additional evidence. He further submits that the plaintiffs have filed a civil suit with regard to revenue land and same is barred by law under Sections 207 and 252 of Rajasthan Tenancy Act, but the Trial Court and the Appellate Court have failed to consider the objection about maintainability of civil suit. He also submits that the land in question was never used by villagers for observance of any customary rituals or festivals. He also referred the grounds raised by plaintiffs and submitted that the defendants were already in possession of land in question and plaintiffs have failed to establish uninterrupted use of customary right. Atlast, he submitted that several substantial question of law in his Para No. 9 of memo of appeal are suggested and this second appeal may be admitted for final hearing.

5. Aforesaid contentions were opposed by learned counsel for respondents-plaintiffs and submitted that concealing facts of decree and pendency of appeal before the ADJ Court, the land was converted from revenue land to abadi, in state run campaign. He also submitted that with connivance of administration, the land use was changed and same was allotted to Village Panchayant. Later, without any authority the land was allotted by Sarpanch without following legal procedure. He submits that the entire exercise of conversion is contrary to procedure established under the law and same was for the purpose to defeat the judgment and decree of the trial Court. He also referred the judgment of the Trial Court and the Appellate Court and submitted that a suit for declaration of easementary right is maintainable before the Civil Court and it is not barred under Sections 207 and 252 of Rajasthan Tenancy Act. He also referred the concurrent findings of facts by the Courts below and submitted that there is no substantial question, which requires adjudication by this Hon’ble Court, therefore, the appeal is liable to be dismissed.

6. Heard learned counsels for the parties and perused the material placed on record. Also considered the judgments in case of Kedar Nath Agrawal (Dead) and Anr. Vs. Dhanraji Devi (Dead) by LRs. and Anr. (2004) 8 SCC 76 and Lal Singh Jhala Vs. Panna Lal, S.B. Civil Misc. Appeal No. 1644/2012 date of judgment (22.08.2016) passed by a Coordinate Bench