IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 RSA.No. 772 of 2010(A) -------------------------------- (AS.NO.86/2006 OF PRINCIPAL SUB COURT, THALASSERY, OS.NO.50/2005 OF ADDITIONAL MUNSIFF'S COURT, KANNUR) .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- KUNDATHIL MOHAMMED, S/O.ASSANKUTTY, AGED 58 YEARS,GULF EMPLOYEE, RESIDING AT CHELERI AMSOM, KARAYAPPA DESOM,TALIPARAMBA TALUK,KANNUR DISTRICT, THROUGH HIS POWER OF HOLDER T.V.ABDUL HAMEED,S/O.MOIDU MOULAVI, RESIDING AT CHELERI AMSOM, KARAYAPPU DESOM, P.O.CHELERI, KANNUR DISTRICT. BY ADVS. SRI.A.MOHAMED MUSTAQUE, SRI.T.PRAVEEN. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. PUTHANVEETTIL NARAYANAN, P.O.KANNAN NAIR, AGED 62 YEARS, RESIDING AT PUTHANVEETTIL, CHELERI AMSOM, KARAYAPPU DESOM, TALIPARAMBA TALUK. 2. PUTHANVEETTIL DAMODARAN, AGED 59 YEARS, S/O.KANNAN NAIR, AGED 62 YEARS, RESIDING AT PUTHANVEETTIL, CHELERI AMSOM, KARAYAPPU DESOM, TALIPARAMBA TALUK. 3. PUTHANVEETTIL SREEDHARAN, AGED 46 YEARS, S/O.KANNAN NAIR, RESIDING AT PUTHENVEETTIL, CHELERI AMSOM, KARAYAPPU DESOM, TALIPARAMBA TALUK. R1 & R3 BY ADV. SRI.P.U.SHAILAJAN (CAVEATOR). THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- R.S.A No. 772 of 2010 -------------------------- Dated this the 11th August, 2010 J U D G M E N T Plaintiff who has been non-suited by the courts below is the appellant before this Court. 2. O.S No.50/2005 was instituted by the plaintiff for perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs over plaint schedule property. According to the plaintiff, he obtained the plaint schedule property as per Ext.A2 dated 23.6.1994. Ever since then he claimed to be in absolute possession and enjoyment of the same. Defendants have no manner of right over the plaint schedule property. They attempted to trespass into the plaint schedule property. They claimed to be the owners of plaint schedule property and attempted to put up a compound wall in the said property claiming that it is a cremation ground. They have no right to do so. Apprehending trouble, the suit was laid. 3. The suit was resisted by the defendants. It is pointed out by them that property originally belonged to R.S.A No. 772 of 2010 2 Puthenveedu Tarward of which defendants are members. Traditionally the south eastern portion of the property was used for cremating the dead bodies of members of the tharwad. There was no objection or interference from any one for doing so. In the written statement, names of some of members of the tarwad whose dead bodies were cremated in that place is mentioned. It is pointed out that plaintiff cannot claim absolute right over that portion of the land which is being used as a cremation ground. On the basis of the above contention, they prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and Exts.A1 to A6 were marked from the side of the plaintiff. Defendants had examined DW1 and DW2 and Exts.B1 and B2 were marked. Commissioner was examined as CW1. Exts.C1 to C3 (a) are the are the commissioner's report and plan. 5. On evaluation of the evidence in the case, the trial court came to conclusion that the claim made by the R.S.A No. 772 of 2010 3 defendants is true and accordingly dismissed the suit. 6. Plaintiff carried the matter in appeal as A.S.No.86/2000 before the Sub Court, Thalassery. The lower appellate court on an independent evaluation of the evidence in the case found that the findings of the trial court are just and proper and accordingly dismissed the appeal. 7. Against the concurrent findings of the court below, this appeal has been preferred before this Court. 8. Learned counsel appearing for the appellant pointed out that defendants have no title or possession over the plaint schedule property. There is nothing to show that they had any right to use any portion in the plaint schedule property as a burial ground. Merely saying that a portion of the plaint schedule property was used as a cremation ground will not suffice. The title to the property rests with the plaintiff and defendants have no manner of right over suit property. 9. Respondents had lodged caveat Respondents pointed out that the commission report as well as the R.S.A No. 772 of 2010 4 evidence of DW2 is sufficient to show that a portion of the plaint schedule property is being used as a cremation i.e for burial of the members of the Puthenveedu Tarwad. It is to be noticed that even though plaintiff had claim to 32 1/2 cents of land, the tax receipts produced by him cover only 29.825 cents leaving 2.625 cents. That is being used as the cremation ground. This was one of the factors which weighed with the courts below. 10. The courts below have considered the commission reports in considerable detail. There were three reports and sketches. The courts below have noticed that the Commissioner has specifically stated that there is difference in the nature of property between 2.625 cents and rest of the property in the possession of the plaintiff. It is also stated by the the commissioner that there are indications at the site to show that portion was being used as cremation ground. The evidence of DW2, supports the case of the defendants. It is seen that his evidence remains unimpeached though he was subjected to severe cross- examinations. Both the courts below have concurrently R.S.A No. 772 of 2010 5 held that plaintiff is not in absolute possession of 32 1/2 cents of land. The lower court also noticed that only the power of attorney holder has been examined on behalf of the plaintiff and he was unable to give several details regarding various aspects of the case. The findings of the courts below are based on the evidence of facts. No questions of law arise for consideration in this appeal. No interference is called for required under Section 100 C.P.C. This appeal is without merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE ma