IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 SA.No. 657 of 1995() ----------------------------- AS.104/1989 of SUB COURT, TIRUR OS.110/1986 of MUNSIFF COURT,PARAPPANANGADI .................... APPELLANT(S): RESPONDENTS/1,3 TO 6, DEFENDANTS 1,3 & 6 -------------------------------------------------------------------------------------------- 1. BALAKRISHNAN, S/O. ATHRAPULIKKAL MAMUKKATTY, RESIDENT OF EDAPPAKKUZHI SMASANA COMMITTEE, VALLIKKUNNU NORTH. 2. KESAVAN, S/O. KARIPPRA SANKARAN, SECRETARY, EDAPPAKKUZHI SMASANA COMMITTEE. 3. CHANDRAN, S/O.OORUTHODI AYYAPPAN, JOINT SECRETARY,EDAPPAKUZHI SMASANA COMMITTEE. 4. DEVADASAN, S/O. AMBALATHINGAL DAMODARAN, JOINT SECRETARY, EDAPPAKKUZHI, SMASANA COMMITTEE. 5. BALAN, S/O. ARAKKAL PARANGODAN, TREASURER, EDAPPAKUZHI SMASANA COMMITTEE. BY ADVS.SRI.K.MOHANAKANNAN RESPONDENT(S): APPELLANTS/ PLAINTIFF ------------------------------------------------------------- *1 NERUMKARITHAKKOT DEVASWOM OORALAM RAJAMANYA RAJASREE KOZHIKKOTT PADINHARE KOVILAKATH SRI.MANAVEDAN ALIAS, KUNHANUJAN RAJA, BY NAME KOZHIKKOTT MANAVIKRAMA SAMOODIRI RAJA, ESQ. AGED 89 YEARS, RESIDING AT VALYANAD AMSOM DESOM OF KOZHIKODE TALUK. * (DIED) tss S.A. NO.657/1995 ADDL. R2 IMPLEADED. 2. P.K.SREE MANAVEDAN RAJA ZAMORIN, CHALAPPURAM P.O., KOZHIKODE. ADDL. R2 IS IMPLEADED AS PER ORDER DTD. 29.7.2010 IN IA. 1777/2007. R1 BY ADV. SRI.M.P.SREEKRISHNAN, SMT.SHAHNA KARTHIKEYAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.657 of 1995 ------------------------------------- Dated this the 8th day of February 2011 Judgment Defendants 1 and 3 to 6 in OS No.110/86 before the Munsiff’s Court, Parappanangadi, are the appellants before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff Devaswom sued the defendants for recovery of possession of the suit property on the strength of their title. The Devaswom had about 3 acres and 19 cents of land comprised in RS No.32/1 of Tirur Taluk. A good portion of the same was acquired for a road and the balance extent is the suit property. Pointing out that the defendants had no manner of right over the suit property and alleging that they are trying to trespass into the suit property, the suit was laid. Thereafter, a prayer for recovery of possession was also incorporated in the plaint. 3. The defendants resisted the suit. They denied the title of the plaintiff and asserted that the suit property is being used by them as a burial ground from time immemorial. On the SA No.657/95 2 basis of these contentions, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendants examined DWs 1 to 6 and had Exts.B1 to B23 marked. Exts.C1 and C2 are the commissioner’s report and plan. 5. The trial court found that the plaintiff was not successful in establishing their title and accordingly, dismissed the suit. The plaintiff took up the matter in appeal as AS No.104/89 before the Sub Court, Tirur. The lower appellate court, after meticulous consideration of the evidence, came to the conclusion that the plaintiff has title to the suit property, but held that the defendants have a customary right of burial in the suit property or in other words, they have a right to use the plaint schedule property as a burial ground. On this basis, a decree was passed, which reads as follows : “In the result, the appeal is allowed, the judgment and decree of the lower court are set aside and the suit is decreed on the following SA No.657/95 3 terms : That the plaintiff is allowed to get recovery of possession of the plaint schedule property subject to the right of the defendants to bury the dead bodies of the lower class of Hindu community at the plaint schedule property. No costs.” 6. Aggrieved by the findings of the lower appellate court, the defendants have come up in second appeal. Notice is seen issued on the following questions of law raised in the second appeal : 1. Whether the title of the plaintiff can be vested on the production of patta and adangal register. 2. Whether the customary right established by the defendants destroys and puts an end to the title of the plaintiff and has the effect of a local law enacted. 7. The learned counsel for the appellants pointed out that the finding of the lower appellate court that the plaintiff has title to the property is incorrect and there was no justification for upsetting the finding of the trial court that the plaintiff has not proved their title. Relying on the decision in SA No.657/95 4 Lakshmidhar Misra and others v. Rangalal and others (AIR 1950 PC 56), it was contended that any right of the plaintiff had been lost by the use of the property from time immemorial as a burial ground. 8. The learned counsel for the respondent, on the other hand, pointed out that the plea of the appellants was one of customary right of burial and that itself shows that the title of the plaintiff is admitted. The plea of adverse possession was found against the defendants and therefore, there was no necessity to interfere with the judgment and decree of the lower appellate court. 9. Having pleaded the customary right of burial or in other words, seeking a right to bury the dead bodies as a customary right in the property of the Devaswom, the appellants cannot be heard to dispute the title of the Devaswom. It is felt that regarding the title of the Devaswom, it was rightly found by the lower appellate court. The plaintiff has disputed that the property had been used as a burial ground. According to them, only on one occasion, a dead body was buried there with their permission. But, the commissioner’s report is clear to the effect SA No.657/95 5 that a number of burials have been conducted in the suit property. This evidence remains unimpeached. Therefore, the contention of the respondent in this appeal that the property was not being used as a burial ground, cannot be countenanced. There was also evidence to show that the property is known as 'Savakandiparambu'. Evidence is also there to the effect that burials were being made in the suit property since 1942. The defendants have succeeded in establishing that the property was being used as a burial ground for burying dead bodies of Hindu low class persons. The lower appellate court has correctly appreciated the facts and evidence in the case and has come to the right conclusion. No grounds are made out to interfere with the judgment and decree of the lower appellate court. If any prejudice is caused to the defendants in continuing the practice, it will be open to them to seek appropriate remedies from the appropriate forum. Subject to the above observation, the appeal is dismissed. There will be no order as to costs. P.Bhavadasan, Judge SA No.657/95 6 sta SA No.657/95 7