SHINGHAL, J.—This second appeal of defendant Ramchander Singh is directed against the judgment and decree of the learned Civil Judge of Jalore dated March 20, 1959. It arises in these circumstances.

2. The parties are residents of Sayla, which was once a jagir village. Defendant Ramchander Singh obtained a Patta from the other defendant Raghunath Singh, who was then the Jagirdar of the village, on December 4, 1954, for a piece of land in the village marked GDCYEF, made some construction on portion AXYB thereof, and also built a small platform on porion XDCY. All these have been shown in site plan Ex. 1. This was considered by the villagers to be an encroachment on the village akhariya (or common land at the extreme end of the village) which has been marked in green chalk in the site plan. The plaintiffs therefore raised the present suit, in a representative capacity, in the court of the munsiff of Jalore on September 10, 1957. They pleaded that the portion of land marked GDCYEF was a part of the village akhariya which had been in existence for over a hundred years and had been used as the common land of the village for the grazing and resting of the village cattle. Thus the plaintiffs pleaded that defendant Ramchander Singh reduced the size of the akhariya resulting in general inconvenience to the villagers. They also pleaded that the Patta had been obtained by Ramchander Singh in collusion with defendant Raghunath Singh as the latter had no authority to issue a Patta for land which was meant for common use. The plaintiffs therefore prayed for a declaration that the piece of land marked GDCYEF was meant for the common use of the villagers and for the use of their cattle. They also prayed for the removal of the so called illegal possession of Ramchander Singh by demolishing the constructions made by him, and for the issue of a permanent injunction restraining him from interfering with the aforesaid land or any portion of the village akhariya. So also, it was prayed that the Patta in favour of Ramchander Singh may be cancelled. Defendant Ramchander Singh admitted having taken possession of the disputed land and obtained a Patta from defendant Raghnath Singh. He also admitted that he had made the constructions referred to by the plaintiffs, but he pleaded that he had done so after obtaining the Patta from the Jagirdar, and under the express authority of the village panchayat. All the other allegations of the plaintiffs were denied, including the allegation that the land was used for grazing the cattle. According to the defendant, the land in question was an open piece of land and that was why the village cattle used to rest there earlier, but that on account of growth of population the land had come within the inhabited portion of the village and its use as the resting place of the cattle was prejudicial to public health and sanitation. The defendant pointed out that this was the reason why an order had been made by the Divisional Panchayat Officer prohibiting the collection of the village cattle there, and that order had been duly implemented by the Gram Panchayat. The charge of obtaining the Patta collusively, was also denied. Some other pleas were taken, but it is not necessary to refer to them. Defendant Raghunath Singh did not appear in the trial court and the case proceeded exparte against him. The learned Munsiff ultimately decreed the suit on November 24, 1958, and the contesting defendants appeal against that judgment and decree having been dismissed by the learned Civil Judge of Jalore, as aforesaid, defendant Ramchander Singh has preferred this second appeal.

3. As both the courts below have taken the view that the suit land is a part of the village akhariya and that the plaintiffs had been using it for resting their cattle over a long period of time, the first question for consideration is whether that finding of fact is binding on this Court. I have no doubt, however, that, for reasons to be mentioned presently, the fi

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