Members of a community have the locus standi to file a representative suit to protect the common property of the community, and they can seek a declaration that the property is subject to the customary rights of the community.

R.P. Gupta, J.

1. This second appeal arises from the judgment dated 19-7-96 in Civil Appeal No. 26A/96 passed by the IV Addl. Distt. Judge Bhind reversing the judgment and decree of Civil Judge Class-I, Mehgaon in C.S. No. 268A/84 decided on 2-1-85.

2. This relates to a century old user of the disputed land by villagers as cremation ground and thrashing ground (Khalihan). The appellate court had reversed the judgment and decree of the trial court and the decree of the trial court was in favour of the plaintiff for declaration of rights of the user of the land of survey No. 59 of village Sunarpura, district Bhind for cremation of his dead family members and similarly using survey No. 58 as khalihan (crop thrashing ground). An injunction was also granted against the defendants not to interfere with these respondents from use of the respective survey numbers.

3. The appellate court reversed the judgment and decree of the trial court on grounds that the suit of the plaintiffs was not representative in character while they were claiming community of interest for all other villagers of Sunarpura and they had no personal exclusive rights. It was further found that in the land in dispute, the defendants (now respondents) had bhumiswami rights as recorded in revenue records since Samvat 2008 having been so recorded as Pucca Krishak ever since. It was found that these properties were not established to be the common cremation ground for use of the village community or as common thrashing ground for all or any section of the people of the village. The finding of the trial court was reversed on these material aspects, by the appellate court.

4. It will be appropriate to note in brief the pleadings of the parties. The short history of the case is that the appellants/plaintiffs had filed this suit, purporting to be filed in a representative capacity, on behalf of the village people with permission to sue in a representative capacity under Order 1 Rule 8 C.P.C. The claim was that the land of survey No. 59 had been used as cremation ground for about 100 years by all the villagers including the plaintiffs. The land of survey No. 58 was urged to be common khalihan of the village to be used as such. It was urged to be common property before coming into force of Madhya Bharat Zamindari Abolition Act, Samvat 2008 (hereinafter referred to as the Act). After coming into force of the Act, the land vested in the State Govt. Earlier it was the land belonging to Shyamlati Thok Nawabsingh and defendants never possessed this land nor have any exclusive rights nor cultivated it when the Act came into force.

5. The trial Court gave notice of the petition under Order 1 Rule 8 C.P.C. to the listed persons in the prescribed manner but above persons denied that they had any rights of such user and denied that they wanted to be represented by the plaintiffs. On that basis, vide order dated 28-12-76, the application under Order 1 Rule 8 C.P.C. was declined by the court and permission was not granted to the plaintiffs to sue. The plaintiffs, then, sought amendment by permission of the court, amended the plaint by omitting allegations of the suit being in representative capacity and urging that they themselves, along with other villagers, had right to use this property as cremation ground and threshing ground respectively.

6. The defendants had contested the suit urging that although the land was recorded as vested in the State after coming into force of the Act. But in Samvat 2007 it was recorded pucca tenancy of the defendants and ultimately they became bhumiswami. It was denied that the land was ever used by village people as common cremation and threshing ground. Of course, they urged that the land of survey no. 59 was used by them and their family members as cremation ground and some memorials of their family members were built there upon. The trial court framed the following issues-

(i) Whether the plaintiffs and other villagers had been using the suit land