IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 SA.No. 54 of 1994(F) ----------------------------- AS.73/1991 of SUB COURT, SULTHAN BATHERY OS.261/1985 of MUNSIFF COURT, KALPETTA .................... PLAINTIFF / APPELLANT/ APPELLANT ----------------- MAHAGANAPATHI KSHETHRA SAMITHI REP.BY ITS PRESIDENT, N.K. GOPALANKUTTY NAIR, AGED 65 YEARS, S/O. RARU @ RAMAKURUP, RESIDING AT KOLAGAPPRA, SULTHAN'S BATTERY TALUK WYNAD DISTRICT. BY ADV. SRI. M.GOPIKRISHNAN SRI.A.P.CHANDRASEKHARAN DEFENDANTS 1 & 3 TO 10/ RESPONDENTS / RESPONDENTS ---------------------- 1. STATE OF KERALA REP.BY THE COLLECTOR OF WYNAD DISTRICT. *2. M.NARAYANI AMMA, D/O. VELAPPAN NAIR, AGED 68 YEARS, RESIDING AT NENMENI VILLAGE, SULTHAN'S BATTERY TLAUK WYNAD DT. (DIED) 3. MRS. SANTHA NARAYANAN, W/O. LATE C.V.NARAYANAN AGED 55 YEARS, RESIDING AT VENGERI AMSOM AND DESOM, KOZHIKODE TALUK. 4. C.V.SURESH BABU, S/O. LATE C.V. NARAYANAN, AGED 35.YEARS, RESIDING AT DO. DO. 5. C.V.SREENATH, S/O. LATE C.V.NARAYANAN AGED 33 YEARS, RESIDING AT DO. DO. 6. C.V.SREEPRASAD, S/O. LATE C.V.NARAYANAN AGED 31 YEARS, RESIDING AT DO. DO. 7. C.V.JAYADEVI, S/O. LATE C.V.NARAYANAN AGED 29 YEARS, RESIDING AT DO. DO. SA. NO.54/1994 8. C.V.VIJAYAN, S/O. LATE C.V.NARAYANAN AGED 27 YEARS, RESIDING AT DO. DO. 9. P.JINAKANAKAM, D/O. KANNAN, AGED 14 YEARS, (MINOR), REP.BY GUARDIAN 3RD RESPONDENT, MRS. SANTHA NARAYANAN, RESIDING AT DO. DO. ADDL. R10 TO R12 ARE IMPLEADED. 10. M.SAROJINI AMMA (DAUGHTER) AGED 60 EYARS, MANJATH VEEDU,, AMBUKUTTY, AMBALAVAYAL VILLAGE, SULTHAN BATHERY. 11 K.BHAGEERATHAN, S/O. KUNJAN NAIR, AGED 57 YEARS, OF DO. DO. 12. KUNHAN NAIR, S/O. KUNJAN NAIR, AGED 50 YEARS, DO. DO. ADDL. R10 TO R12 ARE IMPLEADED AS THE LR'S OF THE DECEASED SECOND RESPONDENT VIDE ORDER DT. 20.7.07 IN IA. 964/07. BY ADV. SRI.D.KRISHNA PRASAD GOVERNMENT PLEADER - R1 SRI.K.PRAVEEN KUMAR SRI D NARENDRANATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2008 , ALONG WITH SA NO. 669 OF 19 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A. NO.54/1994 ORDER ON CMP. NO.1896/1996 IN SA. NO.54/1994 DISMISSED 06.02.2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.SASIDHARAN NAMBIAR,J. --------------------------------------- S.A.NOs.54/94 & 669/95 ---------------------------------------- Dated 6th February 2008 J U D G M E N T Plaintiff in O.S.261/1985 on the file of Munsiff court, Kalpetta is the appellant in S.A.54/1994. Defendants 1, 3 and additional defendants who are impleaded as legal heirs of the deceased second defendant are the respondents. Legal heirs of second defendant and third defendant are the appellants in S.A.669/1995. Plaintiff and first defendant are the respondents in S.A.669/1995. Subsequent to the filing of the appeal, second respondent/third defendant died. His legal heirs were impleaded as additional respondents in S.A.54/1994 and additional appellants in S.A.669/1995. Plaint schedule property in O.S.261/1985 is 5.4730 hectares in survey No.478,479,464/1A1 and 480 which was resurveyed and included in survey No.632/2 of Batheri village of Sulthan Bathery Taluk. Admittedly it originally belonged to the Government. Appellant in S.A.54/1994 is a society registered under Societies SA 54/94 & 669/95 2 Registration Act. Case of appellant is that the society was formed with the main object to maintain Hindu culture, to propagate Hindu ideals and religious teachings and to manage Mahaganapathi temple and also to take over the burial and cremation ground used by Hindus exclusively and situated in Bathery. According to the appellant, plaint schedule property is the burial ground of Hindus of Sulthan Bathery which was used by the Hindus of the locality for more than 50 years prior to the institution of the suit. It was contended that the site was being used as a burial ground since 1928 and all castes of Hindus used plaint schedule property as their burial ground and burial ground has been registered in the revenue records including the resettlement of 1928. It was also contended that similarly other religions including Christians and Muslims have separate burial grounds near to the plaint schedule property and subsequent to the formation of the appellant society in 1972, Samithi has been in exclusive possession of the property and has been facilitating burial of the dead bodies of Hindus and granting of financial assistance. It was contended that while so, attempt was made to assign the property by the Government and it created SA 54/94 & 669/95 3 tension among the communities and panchayat passed a resolution that the ancient burial ground of Hindus shall not be assigned and appellant society preferred a complaint before District Collector, Kozhikode, under whose jurisdiction the property was at that time. Administrative Officer unauthorisedly granted assignment of portions of the property. On 21/9/1981 first member of the Board of Revenue visited the site. He did not make any enquiry with the office bearers of the Samithi. The assignment proceedings were stayed by the District Collector. But the Board of Revenue had given direction to the District Collector, Wayanad to implement earlier orders of the Board of Revenue. Appellant was unaware of the earlier orders of the Board of Revenue. It was contended that plaint schedule property a burial ground being used by the Hindu Community of the locality for more than 50 years and first respondent has no right to assign the property to anybody or to take possession of the property from the appellant. Contending that appellant is entitled to a decree for declaration that plaint schedule property is the burial ground of Hindus from time immemorial and is used by the Hindus of the locality and appellant is in the possession and SA 54/94 & 669/95 4 management of the property, suit was instituted. The reliefs sought for were declaration that plaint schedule property is the burial ground of Hindus of the locality uninterruptedly from time immemorial and that appellant Samithi is in actual possession and management of the property. A decree for permanent prohibitory injunction restraining defendants and their men from forcibly evicting appellant and from assigning or transferring the property to strangers was also sought. First respondent filed a written statement contending that suit is barred by principles of res judicata as the same question was settled by the High Court in O.P.10114/1982 under Ext.B14 judgment and also in Ext.B15 judgment in W.A.350/1985. It was contended that the right and title set up in the plaint is the same which was agitated in the writ petition and the writ appeal and it was found that appellant has no right to the property and therefore suit is not maintainable. It was also contended that appellant has no right, title or possession to the plaint schedule property and the entire plaint schedule property is not used as burial ground. It was further contended that appellant caused cremation of some dead bodies with the motive of encroaching into the property and it SA 54/94 & 669/95 5 was never used as a burial ground for the last 50 years. As writ petition was dismissed rejecting his case, the suit is not maintainable. It was also contended that plaint schedule property is not a burial ground and extent of 13.52 acres of Government land in R.S.No.478, 517, 477, 46/1A2, 46/1A3 and 476/1 of Sulthan Bathery village was included in Wayanad colonisation scheme and during new survey, a portion was found to have been used as burial ground and later Government decided to allot remaining waste land to Ex-Servicemen and portions which are used as burial ground was reserved and eight persons were allotted land from the waste land and it was objected to by the appellant and District Collector directed the Administrative Officer to cancel the allotment. Deceased second defendant filed an appeal before the District Collector which was dismissed. A revision was filed before the Board of Revenue. Board of Revenue under Ext.B17 order, set aside the order of the District Collector and restored the original order of the Administrative officer. Appellant challenged the order in a writ petition. That was dismissed under Ext.B14 judgment. It was challenged in a writ appeal. It was dismissed confirming in Ext.B14 judgment by Ext.B15 SA 54/94 & 669/95 6 judgment. 2. Defendants 2 and 3 were subsequently impleaded. They filed written statements contending that plaint schedule property is not a burial ground and it was not being used as a burial ground and appellant Samithi is not in possession of the property and the property was distributed by the Government to Ex- Servicemen. Land having an extent of 2 acres was allotted to deceased second defendant as per order dated 18/8/1978. Second respondent third defendant the widow of Kunjan Nair, Ex-Serviceman was allotted 1 acre and 06 cents by order dated 31/7/1978. Patta was also issued to second respondent. Possession of the property was taken by the second defendant and second respondent. They effected improvements also. Meanwhile allotment was cancelled by the Administrative Officer. Though appeals were filed before the District Collector, they were dismissed, it was challenged before the Board of Revenue. Board of Revenue set aside the order canceling the allotments and the original allotments were restored under Exts.B12 and B17 orders. On enquiry it was found by the Board of Revenue that there is no burial ground in those properties. It was contended that appellant is not SA 54/94 & 669/95 7 entitled to the decree sought for. 3. Learned Munsiff on the evidence of Pws.1 to 4, DW1, Exts.A1 to A31, B1 to B19 and C1 to C8 found that plea of the appellant that plaint schedule property is the burial ground of Hindu Community which was being used from time immemorial, is barred by principles of res judicata in view of Exts.B14 and B15 judgments. Learned Munsiff also found that there is no evidence to prove that plaint schedule property was being used as burial ground from time immemorial. It was also found that appellant is not entitled to declaration sought for. But finding that appellant has been in possession of the plaint schedule property and respondents are not entitled to take forcible possession other than by due process of law, it was found that appellant is entitled to a decree for permanent prohibitory injunction restraining respondents from forcibly evicting the appellant. Challenging the denial of declaration, plaintiff filed A.S.73/1991. Challenging the decree for injunction granted against them, third defendant and legal heirs of the second defendant filed A.S.59/1991. Learned Sub Judge re-appreciated the evidence. On such re- appreciation, it was found that there is no evidence to SA 54/94 & 669/95 8 prove that plaint schedule property was being used as a burial ground from time immemorial as claimed by the appellant. Finding that burden is on the appellant to establish the customary right and noting that in spite of the contention raised in the plaint that even 1928 resettlement register shows the property as a burial ground and no such records were produced and holding that evidence of Pws.2 and 3 who are not Hindus and their evidence cannot be relied to establish the customary practice of burial of dead bodies of Hindu community from time immemorial and evidence of PW4, who deposed that the body of his son was buried in the plaint schedule property in 1966 cannot be believed as PW4 is residing 8 km away from the plaint schedule property, learned Sub Judge upheld the finding of the learned Munsiff that appellant failed to establish the customary right of using the plaint schedule property as a burial ground by the Hindu community. It was found that appellant is not entitled to the declaration sought for. But upholding the finding of the trial court that appellant established possession of the property and respondents are not entitled to dispossess the appellant other than by due process of law, it was held that appellant is SA 54/94 & 669/95 9 entitled to a decree for declaration of his possession and also the permanent prohibitory injunction granted by the trial court. A.S.59/1991 was dismissed A.S.73/1991 was partly allowed. Challenging the refusal to grant the decree for declaration that plaint schedule property is being used as burial ground of the Hindu Community, plaintiff filed S.A.54/1994. Contending that after finding that appellant has no title to the plaint schedule property and the title vested with defendants 2 and 3, courts below should not have granted a decree for declaration of possession or permanent prohibitory injunction against the true owners, second respondent and legal heirs of second defendant filed S.A.669/1995. Said appellants also filed cross objection in S.A.54/1994 challenging the granting of a decree for declaration of possession. 4. S.A.54/1994 was admitted formulating following substantial questions of law. 1) When the question whether plaint schedule property is a burial ground of the Hindu community was not an issue raised or decided in the writ petition as well as writ appeal and when only assignment of the portions of the SA 54/94 & 669/95 10 plaint schedule property in favour of defendants 2 and 3 was the subject matter of challenge in the said writ petition and writ appeal whether findings of the courts below that suit is barred by res judicata in view of Exts.B14 and B15 judgments in the writ petition and writ appeal is sustainable. 2) Whether on the evidence, courts below were justified in holding that the appellant is not entitled to declaration sought for when the evidence show that Hindu residents of the locality have been using plaint schedule property as a burial ground and they acquired a customary easement right. 3) In the light of entry in Ext.A27 showing that plaint schedule property is a burial ground, whether the courts below were justified in holding that plaint schedule property is not a burial ground. 4) Whether first appellate court was justified in not receiving additional document produced along with a petition filed under Rule 27 Order XLI of Code of Civil Procedure. S.A.669/1995 was admitted formulating the following substantial questions of law. SA 54/94 & 669/95 11 When it is found that plaintiff’s claim on the basis of which suit was filed and relief sought for is not correct and plaint schedule property was not being used as a burial ground from time immemorial and plaintiff Samithi has no title to the property and defendants 2 and 3 have title to the property, whether courts below were justified in granting declaration that plaintiff is in possession of the suit property and granting a decree for permanent prohibitory injunction. 5. Learned counsel appearing for appellant and respondents were heard. 6. Fact that plaint schedule property having an extent of 13.51 acres was originally Government land is not disputed. What was contended by the appellant in S.A.54/1994 is that plaint schedule property is being used as a burial ground from time immemorial by all castes of Hindu Community of the locality and after formation of the Samithi in 1972 under Ext.A1 bye-laws, Samithi has been in possession of the property and first respondent State has no right to assign any portion of the property and under the orders of assignment obtained by defendants 2 and 3 they cannot claim any right or SA 54/94 & 669/95 12 title to the plaint schedule property. Appellant sought a decree for declaration that plaint schedule property is used as burial ground of Hindu community from time immemorial and on behalf of community appellant Samithi is in possession of the property and respondents have no right to dispossess the appellant. Though appellant also sought a decree for injunction restraining first respondent from assigning or transferring any portion of the plaint schedule property, it was not granted by the courts below. After finding that appellant did not establish that plaint schedule property is being used as burial ground from time immemorial and hence is not entitled to decree for declaration, a decree for injunction was granted restraining respondents from dispossessing appellant other than by due process of law holding that appellant has proved that appellant is in possession of the plaint schedule property. First appellate court on re-appreciation of evidence confirmed the findings of the trail court that appellant did not establish the customary right set up in the plaint and therefore is not entitled to a declaration of that right. But confirming the finding of the trial court that appellant is in possession of the property a decree for SA 54/94 & 669/95 13 injunction was granted. Argument of learned counsel appearing for appellant plaintiff is that finding of the trial court on title is solely based on a finding on plea of res judicata and first appellate court found that said finding is not in accordance with the evidence. It was argued that Ext.A27 shows that 3.18 acres of land in R.S.No.479 is the burial ground and that fact establishes the case of the appellant that plaint schedule property is a burial ground and it is being used for burial of dead bodies of Hindu community from time immemorial. It was also argued that evidence of Pws.1 to 4 and Exts.C1 to C8 reports and plans establish the case of the appellant and the appreciation of evidence by the first appellate court was not correct. It was also argued that even though in Ext.C1 report existence of the gate to the burial ground was shown, the trail court by mistake stated that the existence of the gate was reported only during the second visit and Exts.C1 to C8 establish that even when the Commissioner inspected the property dead bodies were found being buried and in such circumstances courts below should have granted declaration that plaint schedule property is being used as burial ground of the dead bodies of the SA 54/94 & 669/95 14 Hindu community from time immemorial. It was argued that in any case, evidence establish that much before the institution of the suit plaint schedule property was enclosed by a fence and has been in the exclusive possession of the appellant Samithi and even if portions of that property was assigned in favour of defendants 2 and 3, they did not get possession of the property and they are not entitled to dispossess the appellant other than by due process of law and therefore the decree for injunction granted is sustainable. Learned counsel also argued that subsequent to the filing of the appeal, third defendant filed a suit for recovery of possession of the property assigned to her and said suit is pending and in such circumstances the decree for injunction does not warrant any interference. 7. Learned counsel appearing for respondents (legal heirs of defendants 2 and 3) argued that having found that the appellant has no title to the property and having negatived the case that plaint schedule property is being used as a burial ground from time immemorial and upholding the title obtained by defendants 2 and 3, courts below should not have granted a decree for injunction against the true owners, in favour of the SA 54/94 & 669/95 15 appellant who is found to be trespasser and who has no right in the property. Relying on the decisions of the Apex court it was argued that appellant who is found to be trespasser is not entitled to get decree for injunction against defendants 2 and 3 who are the real owners of the property or the first defendant State and the decree for injunction granted is not sustainable. Learned counsel argued that both the trial court and first appellate court, apart from the question of res judicata considered the question of title claimed by appellant, on the evidence and records and rendered a factual finding based on appreciation of evidence and that finding cannot be interfered in exercise of powers of this court under Section 100 of Code of Civil Procedure. It was further argued that first appellate court after detailed examination of each and every item of evidence found that customary practice pleaded and sought to be proved were not established and defendants 2 and 3 validly obtained title to portions of the plaint schedule property and in such circumstances, defendants 2 and 3 are not be directed to seek a decree for recovery of possession and the decree for injunction granted by the trial court and decree for declaration of possession SA 54/94 & 669/95 16 and injunction granted by the first appellate court are not sustainable. 8. Facts are not in dispute. On 31/7/1978 1.06 acres of land in R.S.No.632/2 was assigned in favour of third defendant as provided under Ext.B1 Government order dated 21/12/1945. Said order was promulgated for land reclamation and colonisation of Wayanad colonisation area in Wayanad Taluk as provided under the scheme. Principles of colonisation as provided under Rule 6 are that either 15 acres of dry land or 2 acres of wet and 5 acres of plantable dry land should be given to each colonist and reclamation may be done by the soldiers after armistice and before demobilisation. The property is to be assigned to the different categories of colonists namely, 62% for Ex-servicemen including Madras Guards, 25% to existing owners and sivaijamadars and 12½% to other civilians of Malabar. Similarly as per order dated 18/8/1978 second defendant was assigned 2 acres in survey No.632/2 and pattas were also issued in favour of defendants 2 and 3. While so, appellant preferred objection before the District Collector contending that the entire property in R.S.632/2 is being used as burial ground of Hindu community and therefore cannot be SA 54/94 & 669/95 17 assigned District Collector originally granted an order of stay and communicated the order to the Administrative Officer to send a formal proposal for assignment of the land in R.S.632/2 to the temple authorities under Rule 24 of Kerala Land Assignment Rule. Administrative officer thereafter as per order dated 8/3/1979 cancelled the order granted in favour of third defendant. Similarly as per a similar order the assignment order in favour of second defendant was also cancelled. Defendants 2 and 3 challenged that orders before the District Collector by filing an appeal. When the appeal was dismissed said orders were challenged before the Board of Revenue. Under Ext.B12 and B17 orders, the Board of Revenue found that District Collector has no authority to direct the Administrative officer to cancel the assignment or direct to forward a proposal for assignment of the land under Rule 24 of Kerala Land Assignment Rules and only the Government has a right to do so. Board of Revenue set aside the order of the Administrative Officer canceling the original assignment granted in favour of defendants 2 and 3 and restored the original orders of the assignment. Board of Revenue in the respective orders found that the total extent of the SA 54/94 & 669/95 18 property in R.S.632 is 13 and odd acres and excluding the property assigned in favour of defendants 2 and 3, the balance could be dealt with by the District Collector. Exts.B12 and B17 orders were challenged before this court in O.P.10114/1982. Under Ext.B14 judgment, this court dismissed the writ petition. It was challenged before Division Bench in writ appeal 350/1985. Under Ext.B15 judgment, appeal was dismissed confirming Ext.B14 judgment. Appellant instituted the suit thereafter claiming that plaint schedule property is the burial ground of the Hindu community, which is being used from time immemorial. Though courts below found that Exts.B14 and B15 judgments would operate as res judicata, it is seen from the records that copies of writ petition or writ appeal were not produced before the courts below. From Exts.B14 and B15 it is not possible to hold that question which is sought to be decided in the suit was raised in writ petition or writ appeal so as to invoke the principles of bar of res judicata as found by the courts below. It is now settled that in order to raise a plea of bar of res judicata pleading in the earlier proceedings are to be produced. When the pleadings are not produced, neither the writ petition SA 54/94 & 669/95 19 nor the counter affidavit, courts below should not have upheld the plea of bar of res judicata. More over, question considered