Joymuddi & Ors vs Enesa Bibi & Ors
2023 Latest Caselaw 5585 Cal

25.08.2023                                IN THE HIGH COURT AT CALCUTTA
                                            CIVIL APPELLATE JURISDICTION
                                                   APPELLATE SIDE
Court         : 04
Item          : 01
Matter
Status
              : SA
              : AA-SG                            SA 145 of 2022
              : 266147
                                                 CAN 1 of 2022
Bench ID
Transcriber   : NANDY




                                                Joymuddi & Ors.
                                                      Vs.
                                                Enesa Bibi & Ors.

                         Mr. Saptangshu Basu, Senior Advocate
                         Mr. Probal Kumar Mukherjee, Senior Advocate
                         Mr. Sanjay Mukherjee, Advocate
                                                       ......for the Appellant
                         Mr. K.J. Tiwari, Advocate
                         Mr. Manas Kumar Das, Advocate
                                                     ......for the Respondent

1. The appeal shall be heard on the following substantial questions of law:-

i) Whether the Court of appeal below was justified in not taking into account the Mathkhasra (KB Record), wherein the suit property is recorded as a graveyard for all Muslim Community of village - Amlai indicating that such graveyard is for the benefit of all Muslim Community and, therefore, restriction is not permissible?

ii) Whether the entry in the L.R. Record of Right that the nature of the property is 'amon' has an edge over C.S. and R.S. Record of Right where the nature of the property is described as graveyard for common use of all Mohammedans?

iii) Whether the judgment and decree of the Court of appeal below is perverse having not considered the solenama executed between the parties in Title Suit No. 69 of 1971 solely on the ground that such solenama is compulsorily registrable under Section 17 of the Registration Act?

CAN 1 of 2022

2. The instant application is taken out for stay of the operation of the judgment and decree passed by the First Appellate Court in Title Appeal No. 16 of 2018. It is averred in the said application that taking advantage of the said judgment the respondents are resorting and/or obstructing any burial of a corpse professing Islamic religion in the vicinity.

3. Learned Advocate for the respondent prays for a direction to file affidavit-in-opposition to the said application.

4. Let the affidavit-in-opposition to the application for stay be filed within four weeks from date. Reply thereto, if any, be filed within a week thereafter. The application is made returnable after six weeks.

5. Since we have admitted the appeal framing substantial questions of law and have given to understand that right to burial is exercised by all Muslim Community, we stay the operation of the impugned order for a period of three months from date or until further order, whichever is earlier.

(Harish Tandon, J.)

(Ajay Kumar Gupta, J.)