The dedication of a graveyard to the public by immemorial user establishes it as a public graveyard, vesting in the public, and entitles the plaintiffs to protect it from unauthorized tree cutting.

TARUN AGARWALA, J.

1. Heard Shri A.K. Tripathl, the learned Counsel holding the brief of Sri A.D. Prabhakar, the learned Counsel for the plaintiffs-appellants and Sri M.A. defendants-respondents.

2. The plaintiffs instituted a suit for a permanent injunction against the defendants from cutting the trees which were located in the graveyard. The suit was filed in a representative capacity. The plaintiffs contended that they are the residents of village Nasirpur which is adjoining to the village of the defendants, known as, Sherpur in district Bijnor and that there was a common graveyard for the residents of both the villages. The plaintiffs alleged that there are a large number of trees existing on the graveyard and that the defendants were illegally cutting the trees for monetary gains and that they had no right to cut the trees.

3. The defendants resisted the suit and submitted that the plaintiffs had no locus standi to file the suit. The graveyard was located in village Sherpur and that the plaintiffs, who belonged to village Nasirpur, had no concern with the said village or its graveyard. The defendants further submitted that they did not cut any tree and that a branch of a tree had fallen down on account of high winds which the committee had disposed it of and that the money was utilised for the maintenance of the graveyard. The defendants further alleged that there is a committee which was looking after the graveyard and that an application had been forwarded to the relevant authorities for its registration. The defendants further contended that the suit was also barred by the principles of res-judicata, inasmuch as, the plaintiffs had earlier filed Original Suit No. 49 of 1981 which was dismissed and consequently the second suit could not be filed without seeking previous permission.

4. The trial court, after framing the issues, and after considering the evidence brought on the record, decreed the suit holding that the graveyard was located in village Sherpur and was situated between the two villages, Nasirpur and Sherpur and that the residents of both the villages were utilising it from time immemorial to bury their dead. The trial court further found that the defendants had illegally cut the trees which was worth Rs. 100, and therefore, decreed the suit restraining the defendants from cutting the trees located in the graveyard and also awarded cost of Rs. 100 to the plaintiffs. The trial court further found that the suit was not barred by the principle of res-judicata since liberty was granted to the plaintiffs to file the suit afresh.

5. Aggrieved, the defendants filed an appeal which was allowed and the decree of the trial court was set aside and the suit was dismissed. The lower appellate court held that the suit was barred by the principles of res-judicata, since cost imposed by the trial court in the earlier suit was not paid by the plaintiffs. The lower appellate court further found that the plaintiff had no right to maintain the suit since the graveyard was located in village Sherpur and that the plaintiffs were not the residents of that village. The lower appellate court further found that the residents of both the villages, namely, Nasirpur and Sherpur were utilising the graveyard for the burial of their dead, and therefore, held that the graveyard was a public graveyard in character and that the residents of village Nasirpur were only given permission to bury their dead, and had no right of ownership of the graveyard nor had any right on the trees standing on the graveyard, and therefore, the defendants had a right to manage and dispose of the trees.

6. Aggrieved by the Judgment of the lower appellate court, the plaintiffs filed the present second appeal which was admitted on the following substantial question of law:

Whether on the findings recorded by the lower appellate court with regard to the nature of the graveyard on the land in dispute, the plaintiffs-appellants were entitled to a decree restraining