IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 OP(C).No. 1198 of 2011(O) AGAINST THE JUDGMENT DATED 18.2.2011 IN CMA.53/2010 OF PRL.SUB COURT,IRINJALAKUDA OS.1592/2010 OF MUNSIFF'S COURT, IRINJALAKUDA PETITIONERS/PLAINTIFFS/APPELLANTS ----------------------------------------------------- 1. INFANT JESUS PARISH CHURCH THALORE, OLLUR-680 306, TRIKKUR VILLAGE, MUKUNDAPURAM TALUK REPRESENTED BY VICAR, DR.DAVIS CHAKKALAKKAL, S/O.THOMAS.C.P., AGED 41 YEARS, RESIDING AT VOCATIONIST SEMINARY, THALORE-680 306. 2. THADIKARAN PYLOTH JOSE, S/O.PYLOTH, AGED 48 YEARS, THADIKARAN HOUSE, THALORE.P.O., OLLUR-680 306, EDAKUNNI VILLAGE, THRISSUR TALUK. 3. PALIEKARA LONA JOSE, S/O.LONA, AGED 57 YEARS, THALORE.P.O., OLLUR-680 306, TRIKKUR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENTS: DEFENDANTS/RESPONDENTS ------------------------------------- 1. INFANT JESUS MONASTERY (CARMELITES OF MARY IMMACULATE), THALORE(P.O), OLLUR-680 306, TRIKKUR VILLAGE, MUKUNDAPURAM TALUK, REP.BY ITS SUPERIOR (PRIOR), REV.FR.THOMAS CHAKKALAMATTATH C.M.I. 2. REV.FR.THOMAS CHAKKALAMATTATH CMI, S/O.KOCHAPPU, AGED 53 YEARS, SUPERIOR (PRIOR), CMI MONASTRY, THALORE P.O., OLLUR-680 306, TRIKKUR VILLAGE, MUKUNDAPURAM TALUK. BY SENIOR ADV. SRI.RAJU JOSEPH, SRI.J.JULIAN XAVIER THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1198 OF 2011 ------------------------------------------------------ Dated this the 8th day of April, 2011 JUDGMENT The petitioners are the plaintiffs in O.S.No.1592 of 2010 on the file of the Court of the Munsiff of Irinjalakuda. The suit was filed for a declaration that the defendants have no right to obstruct the use of the plaint schedule cemetery by the first plaintiff for the burial of the dead bodies of the parishioners and for conducting religious functions therein. There is also a prayer for permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule cemetery or obstructing the use of the cemetery by the plaintiffs. 2. The plaintiffs filed I.A.No.4412 of 2010 for a temporary injunction restraining the defendants from trespassing upon the plaint schedule cemetery or obstructing the use of the cemetery by the plaintiffs for the burial of the dead bodies of the parishioners and for conducting religious functions till the disposal of the suit. The trial court granted temporary injunction restraining the defendants from O.P.(C) NO.1198 OF 2011 :: 2 :: obstructing the petitioners from using the plaint schedule cemetery for burial of the dead bodies and from causing any obstruction to religious functions to be conducted in the cemetery. However, the trial court did not grant the injunction as prayed for. Dissatisfied with the order passed by the trial court, the plaintiffs filed C.M.A.No.53 of 2010 on the file of the Court of the Principal Subordinate Judge of Irinjalakuda. The Appellate Court also took the view that the respondents/defendants cannot be injuncted from entering into the cemetery. The Appellate Court, accordingly, dismissed the appeal. The concurrent decisions of the courts below are under challenge in this Original Petition filed by the plaintiffs, to the extent to which the courts below did not grant an injunction restraining the defendants from entering into the cemetery. 3. According to the plaintiffs, the cemetery was dedicated by the defendants to the Infant Jesus Parish, when the Parish was constituted taking portions from Ollur and Puthukad Parishes in the year 1977. The first defendant is Infant Jesus Monastery. As per an agreement entered into in the year 1976, it was decided to take portions from Ollur and Puthukad Parishes and to form Infant Jesus Parish, Thalore. As per the decree dated 7.1.1977 of the Bishop, the O.P.(C) NO.1198 OF 2011 :: 3 :: Parish was constituted. The first defendant Monastery had a chapel and it was designated as the Parish Church. There was no cemetery for the Parish. An extent of 15 cents was earmarked for cemetery. The land belonged to the first defendant. According to the plaintiffs, that land was dedicated by the defendants as a cemetery of the Parish. Accordingly, an application was made for licence to use the land as a cemetery in the year 1977. Licence was granted. Cemetery was constructed and it is being used as such. 4. In the year 2009, the status of the Parish was changed. The Parish Church was shifted to another place. The Monastery still remains there. According to the plaintiffs, the cemetery belongs to the Parish and therefore, the defendants have no right over the same. The defendants dispute the dedication. According to the defendants, the title to the property where the cemetery is functioning belongs to the defendants. However, the defendants have no objection in the land being used as the cemetery for burying the dead bodies of the parishioners. The contention of the defendants is that the plaintiffs are not entitled to an order of injunction restraining the defendants from entering into the cemetery and offering prayers. O.P.(C) NO.1198 OF 2011 :: 4 :: 5. The trial court considered the documentary evidence and held that the question of title and dedication of the plaint schedule property are matters to be decided on evidence at the stage of final disposal of the case. For considering the application for temporary injunction, the material point to be considered is possession. The trial court noticed the fact that the respondents have no objection to allow the petitioners to use the cemetery. The contention of the defendants is that when the status of the Parish was changed, the original status of the Monastery is revived and the Parish cannot claim any right as such over the cemetery. On the other hand, the plaintiffs contended that a Monastery cannot have a cemetery whereas a Parish can have cemetery. It is also contended that the licence was granted in the name of the Vicar of the Parish and not in favour of the Monastery. The licensee is entitled to use the premises as a cemetery and the licensee can prevent entrance of others in the cemetery. The trial court held, taking into account all the relevant facts that there is a prima facie case in favour of the plaintiffs to grant an injunction restraining the respondents/defendants from obstructing the plaintiffs/petitioners from using the plaint schedule cemetery for burial of the dead bodies and for matters connected therewith. However, the trial court did not think it fit to restrain the O.P.(C) NO.1198 OF 2011 :: 5 :: defendants from entering into the cemetery and in offering the prayers. 6. The Appellate Court also held that since title to the property belonged to the defendants and since the question of dedication has to be decided at the time of final disposal, the defendants cannot be injuncted from entering into the cemetery. It was also held that such a restriction would cause irreparable injury and hardship to the defendants. 7. Learned counsel for the petitioners submitted that since licensee of the cemetery is the Vicar of the Parish Church, the plaintiffs are entitled to the temporary injunction as prayed for. The learned counsel for the respondents submitted that at the time when the application was submitted for licence, the Prior of the Monastery was the Vicar of the Church and thus he had dual capacity. Therefore, the licence in the name of the Vicar does not clinch the issue. It is also submitted that the burden of proving dedication is on the plaintiffs and such a dedication is not established in the case. The learned counsel for the respondents also submitted that all through out, the Prior of the Monastery was the Vicar of the Church. O.P.(C) NO.1198 OF 2011 :: 6 :: 8. On the basis of the materials on record, the courts below thought it fit not to grant an injunction restraining the entry of the defendants into the cemetery. It was also held by the courts below that the defendants would be put to irreparable injury and great hardship if such an order of injunction is granted against them. It cannot be held that the order and judgment passed by the courts below are without jurisdiction or illegal. I do not find any ground to interfere with the concurrent findings of fact arrived at by the courts below, in exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly, the Original Petition is dismissed. No order as to costs. (K.T.SANKARAN) Judge After pronouncing the judgment, the learned counsel for the petitioners submitted that a direction may be issued to the trial court to dispose of the suit expeditiously. The respondents have no objection for the same. Accordingly, there will be a direction to the O.P.(C) NO.1198 OF 2011 :: 7 :: trial court to dispose of the suit expeditiously, untrammelled by any of the findings and observations in the order of the trial court and the judgment of the lower appellate court. (K.T.SANKARAN) Judge ahz/