C.B. Capoor, J.C. - (1.)This is a plaintiffs' second appeal and arises out of the appellate judgment and decree of the learned District Judge Mandi whereby the judgment and decree of the learned Senior Subordinate Judge dismissing the suit was affirmed,
(2.)Briefly stated, the plaint allegations were as below: The plaintiffs were the owners of different parcels of land comprised in several Khasra numbers in Hadbast No. 269 Ghogardhar, Tehsil Jogindernagar. For the last three years the defendants have without any right been letting loose their cattle for grazing in the disputed land in the Kharif season thereby preventing the plaintiffs from sowing any crop in their land in that season. On 21-6-1917 an order was made by Shri H. W. Emerson, the then Superintendent Mandi State, recognizing that Hindu Gujars of villages Drangsira, Guma and Ner Kalan had a right to graze their cattle in the land situated in Ghogardhar subject to the payment of 50 per cent of the land revenue to the owners of the land and the supply of milk at the paraos (stages) Urla, Drang and Jhatingri. That order is not binding on the plaintiffs as Shri Emerson had not power to make it and it has in particular ceased to be binding on the coming into force of the Constitution of India inasmuch as the right of the Hindu Gujars recognized in the aforesaid order was an infringement of fundamental right of the plaintiffs to hold and enjoy their property and by virtue of Article 13 of the Constitution had become void and inoperative. The defendants are further stated to have ceased to pay the land revenue and to supply milk at the paraos. On the above allegations the plaintiffs mainly prayed for the grant of a perpetual injunction restraining the defendants from grazing their cattle in the disputed land.
(3.)The defence in the main was that the defendants had been grazing their cattle in the disputed land after the harvesting of the Rabi crop for a long time whereof human memory runneth not to the contrary that the order of the Superintendent Mandi was binding on the plaintiffs, that they were not liable to supply milk at the paraos free of cost and that they had not ceased to pay 50 per cent of the land revenue, rather the plaintiffs had refused to accept the same when it was offered. It was denied that the right to graze cattle ill the Kharif season was an infringement of the fundamental right of the plaintiffs or had become void under Article 13 of the Constitution of India.