Mandatory provisions of Order 1, Rule 8 CPC and the essential pre-condition of issuing notice under this provision in representative suits.

JUDGMENT :

DR.A.K.RATH, J.

This is a defendants’ appeal against an affirming judgment.

2. The dispute pertains to grazing of cattle of defendants’ village over Gochar land of plaintiffs’ village. The case of the plaintiffs is that they are residents of village Ratisingha. The defendants are the residents of village Katijanga. Both are adjoining villages. There are about 14.98 acres of Gochar land in the village Ratisingha, which are only assessable to the cattle belonging to the plaintiffs’ village. An area of Ac.12.00 inundated in water during rainy season and unfit for grazing of cattle. Ac.6.26 acres of Gochar land is available in defendants’ mouza Katijanga for grazing of cattle. Since time immemorial, the cattle of the respective villages are grazing in the Gochar and Godanda lands in the respective villages. The Gochar and Godanda lands of Ratisingha mouza are kept for the pasturage of the cattle of that mouza alone. The plaintiffs and their villagers have been using the Gochar lands of their mouza as grazing ground openly, peacefully and without interruption for long over 50 years and as such acquired indefeasible right of exclusive user. It is further pleaded that the defendants and some of their co-villagers made an unholy combine and wanted their cattle to graze on the suit land of the plaintiffs’ village. The plaintiffs protested their action on the ground that their own cattle would starve, if the cattle of other mouzas graze in their Gochar land. The plaintiffs requested the defendants not to interfere in the right of their user of Gochar land but in vain. With this factual scenario, they instituted T.S. No. 104 of 1980 in the court of the learned Munsif, Jagatsinghpur for declaration that the defendants have no right to graze their cattle on the Gochar and Godanda lands of the plaintiffs’ village and for permanent injunction.

3. The defendant nos.1, 2, 4 to 7 filed a joint written statement denying assertions made in the plaint. The case of the defendants is that there are about Ac.60.00 acres of rakhit, sarbasadharan, anabadi and other communal lands, which are fit for grazing. Both the villages are adjacent to each other. The Gochar lands of village Katijanga are unfit for grazing purposes. The plaintiffs wanted to cultivate some portions of the grazing ground of the village to which the defendants vehemently protested. The villagers of Katijanga are grazing their cattle as of right since time immemorial without obstruction and have acquired customary right. The State of Orissa is the owner of the suit land. State has not been impleaded as party to the suit and as such suit is not maintainable.

4. The defendant nos.8 & 9 filed a written statement stating therein that one Nath Sahoo and defendant no.8 has got about two acres of cultivable land in the suit village. The defendant no.9 belongs to village Alikanta, which is an adjacent village of the plaintiffs. They have right to graze their cattle over the suit land. The cattle of the village of the plaintiffs as well as the villagers of the defendants used to graze in the suit land since time immemorial. The defendants acquired customary right of grazing their cattle over the suit Gochar land. The villagers of the suit village have no exclusive right to graze their cattle on the suit land.

5. On the inter se pleadings of the parties, the learned trial court struck five issues. Both the parties led evidence, oral and documentary, to substantiate their cases. The learned trial court came to hold that the suit is maintainable. The State of Orissa is neither a proper party nor a necessary party. The defendants have not proved their customary right of grazing of cattle of village Katijanga over the suit schedule land. Held so, it decreed the suit. The defendants unsuccessfully challenged the judgment and decree of the learned trial court before the learned Subordinate Judge, Jagatsinghpur in T.A. No.06 of 1984, which was eventually dismissed.

6. The second appeal was admitte