Hon’ble Praffulla C. Pant, J.

This second appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 26.03.1979, passed by Civil Judge, Almora, in Civil Appeal No. 04 of 1976, whereby the judgment and decree dated 08.03.1976, passed by Munsif Pithoragarh, in Civil Suit No. 60 of 1966, is set aside, and the appeal is allowed.

2. Heard learned counsel for the parties and perused the papers on record.

3. Factual matrix of the case is that a suit No. 60 of 1966 was instituted by plaintiffs / appellants under Order I Rule 8 of the Code of Civil Procedure, 1908, for declaration and injunction in respect of the forestland lying between the plaintiff’s village Pilkhi and defendant’s villages Kalwe Farsola and Sartola, all three villages situated in Patti Palla Athigaon, Tehsil and District Pithoragarh. It is pleaded in the plaint that the land in question lies within the territorial boundary of village Pilkhi, which is wrongly shown now, within the traditional boundaries of village Kalwe Farsola and Sartola, by the Settlement Authorities. The plaintiffs/appellants filed their objections to this change before the Assistant Record Officer decided the case holding that in the documents ‘Assi Saal’ and ‘Chuknama’, the boundary marks are not clearly visible on the spot. The plaintiffs/appellants as representatives of village Pilkhi, thereafter, filed the present suit against villagers of Kalwe Farsola and Sartola claiming old customary/easementary right of villagers of village Pilkhi over the disputed land alleging that the same lies in their traditional boundary. It is further pleaded by the plaintiffs/appellants that villagers of their village had a right to collect fuel wood, grass as fodder, water and like facilities from the land in question by way of easementary right. After the traditional boundary of the defendants/ respondents is shown extended to the land in dispute, they have started interfering into the customary/easementary right of the villagers of village Pilkhi. As such, a permanent injunction restraining the villagers into the plaintiffs right of pasturage, grazing, fuel wood and panghat etc. was sought.

4. Defendants/respondents contested the suit and filed their written statement challenging the alleged traditional boundary pleaded by the plaintiffs/appellants. It is pleaded in the written statement that during the settlement operations the land in dispute has been shown within the traditional boundary of village Kalwe Farsola and Sartola, as such, the plaintiffs/appellants cannot claim their customary or easementary right in respect of the land. The defendants/respondents defended the orders passed by the Settlement Authorities.

5. Learned Munsif, who tried the suit, framed following issues on the basis of the pleadings of the parties:

1. Whether land in suit is within the traditional boundary of village Pilkhi?

2. Whether the plaintiffs are entitled to get injunction as alleged in para 13(b) of the plaint?

3. To what relief, if any, is the plaintiffs entitled?

6. The trial court, after recording the evidence and hearing of the parties, found that the land in dispute lies within the traditional boundary of village Pilkhi, and issue No. 1 was decided in affirmative. Issue No. 2 is also decided in favour of the plaintiffs by the trial court. The trial court decreed the suit vide its judgment and decree dated 08.03.1976. Aggrieved by said judgment and decree, defendants filed their appeal before the lower appellant court, which was registered as Civil Appeal No. 04 of 1976. The lower appellate court, after hearing the parties, vide its judgment and order dated 26.03.1979, allowed the appeal and dismissed the suit on the ground that in view of principle of law laid down in Fakir Singh Vs. Bhim Singh; reported in 1978 Allahabad Law Journal Pg. 1035, the civil court has no jurisdiction to determine the traditional boundary of the villages, which is the dom