Kerala High Court
Uthrammal C.K. Vasanthi Thampuratti vs M. Krishna Panikker on 22 January, 1998
Equivalent citations: AIR1998KER149, AIR 1998 KERALA 149, (1998) 1 KER LT 358 (1998) 3 CIVLJ 42, (1998) 3 CIVLJ 42
JUDGMENT S. Marimuthu, J.
1. Plaintiff is the appellant and the defendant by name Krishna Panikker representing the Kuruvanthatla-Vattakkumbad Thiyya Samudaya Sangham is the respondent. The suit was originally filed for an injunction and then it was amended for recovery of the suit property. The suit property lies in R.S. No. 32/5. The case of the appellant-plaintiff, in short, would be as follows : The entire properly measuring 82 cents in the said survey number originally belonged to the Chirakkal Kovilakom, a royal family, in which there was a partition under Ext. A1 in the year 1956. In the said partition, Item No. 9, Schedule No. 25 was allotted to the plaintiff-appellant, who is a member of the said family. Out of the 82 cents in that item for 25 cents, there was a lease in favour of one Saidu Muhammad Koya Thangal. who filed a petition for the purchase of this 25 cents before the Land Tribunal and got me purchase certificate. Out of the balance of 57 cents, a small portion was taken in for the formation of the Panchayath Road. Now the balance, namely, 57 minus the above said portion taken for the road is the suit property for which the suit has been filed. The case of the defendant-respondent would be denying the above contentions of appellant, as follows :
2. From time immemorial, the suit property has been used by their community as the burial ground. Then they have preferred customary right over the suit property. Therefore, the appellant is not entitled to the relief sought for. Before the trial Court, on the plaintiff's side, six documents were marked and on the defendant's side 12 documents were marked. The Commissioner's report and plan marked in O.S. 228/80 were also marked in this case as Exts. C1 and C2. (Exts. B4 and B5). The husband of the plaintiff one Rama Varma has given evidence as PW 1 and one Muhammed Kunhi Haji-has been examined as PW2. The defendant Krishna Panicker representing the community was examined as DW I. An Advocate by name Easwaran Nambudiri has been examined as DW 2. The trial Court namely, The Subordinate Judge. 'Payyanoor in O.S. 13 of 1987 examining the above evidence found that the suit property is being enjoyed as burial ground of the Thiyya community from time immemorial and consequently, it dismissed the suit, aggrieved by the judgment of the trial Court, the plaintiff filed A.S.No. 291 of 1987 before the District Judge, Tellicherry, who on considering the materials on record, dismissed the appeal confirming the judgment and decree of the trial Court. As pointed out above, aggrieved by the judgment of both ihe Courts below, now the plaintiff has come forward with Ihe present appeal. The only point that was urged before me lor consideration is whether the said property is being enjoyed as burial ground of the Thiyya Community from lime immemorial so as to perfect customary right. The learned Counsel appearing for the appellant relying on the principles laid down in the following decisions reported in Sathyabhamakutty Pisharassiar v. Chinnathan Master, (1976 KLT 78), Baba Narayan v. Saboosa (AIR 1943 PC 111); Chidambara v. Vedayya Thevar, AIR 1967 Mad 164 (V 54 C 47) submitted that customary right must be specifically pleaded and established and their contention that they have been using it from time immemorial is not sufficient to cloth the said right on them and, in short, the respondent failed to prove the customary right though such burden heavily lies on him and in addition to the above principle of law, the learned Counsel appearing for the appellant further submitted that in fact there is no specific plea in the written statement that the respondent-community has perfected title over the suit property as their burial ground by customary right and the evidence let in an their side is also not satisfactory. On the other hand, the title of the appellant over the suit property has been admitted by the respondent. In this view of the matter it can be rightly concluded that the respondent has not established the customary right over the suit property. When that be the position the findings of both the courts below are totally erroneous and this Court can interefere under Section 100 of the Civil Procedure Code. On the other hand, the learned Counsel appearing for the respondent would submit that, no doubt, the property orginally belonged to the appellant as per the partition deed in the family of the plaintiff. However, the suit property has been used by the respondent community as their burial ground from the immemorial much less from the year 1934 as mentioned in Ext. B1 till today. Hence they have preferred their customary right over the said property by long user. In this view of the matter, the appellant is barred in claiming recovery of the suit property from the respondents. The learned Counsel appearing for the respondent further submitted that in view of the principles laid down by the Supreme Court in the decision reported in Navaneethammal v. Arjuna Chetty, 1996 (6) SCC 166 : (AIR 1996 SC 3521) the Court has no jurisdiction in this Second Appeal to interfere, especially, when the findings of both the Courts are concurrent on the fooling of oral testimony. He further submitted that, apart from the jurisdiction of this Court, the respondents have established their customary right not only by the oral evidence of the defendant DW I but also Exts. B1, B6, B7 and B8. It is also his contention in view of the principles laid down in the following decisions reported in Chinnaswami Pillai v. Syed Kuthbisha Durga represented by its Trustees A. Abdul, (1955 (I) MLI 150) and Hakimullah Abdullah v. L.Piarey Mohan, AIR 1955 NUC 3 (All), Mohd. S. Labbai v. Mohd. Hanifa, AIR 1976 SC 1569 and Rawaji Gokkal v. Keshav Ramji, AIR 1963 Mudh Pra 202 that for the purpose of enjoyment of a property or a burial ground or tor establishing the customary right no period can be fixed. And that when the surrounding circumstances go to show that the property has been granted for a burial ground of a particular community, that can be termed as a lost grant. The learned Counsel appearing for the appellant submitted, as pointed out above, that it is not a definite case of the respondent that they have acquired me right of burying the dead body or cremating the dead body of their community in the suit properly on the footing of lost grant or lease or customary right. Therefore, the respondent has to be necessarily unsuccessful in this appeal. As I have pointed out above, the submission of the learned Counsel appearing for the appellant would be that there is no specific plea in the written statement about the customary right. Whereas, the contention of the learned Counsel appearing for the respondent is that it is stated in the written statement in paragraph Nos. 3 and 5 which read as follows : .
"3. This defendant submits that R.S. 22/5 of Ramanthaly village originally 82 cents in extent has been from time immemorial a burial ground exclusively used by the Thiyya Community. No part of this Survey Number is ever enjoyed by the plaintiff or anybody else under her. The plaintiff has played into the hands of rich and influential P.M. Syed Muhammmed Koya Thangal mentioned in para three of the plaint and the ultimate attempt is to secure a road thrugh this burial ground to the residence of the said Thangal. Neither the plaintiff nor the said Thangal or their predecessors ever had possession of any part of this burial ground. All attempts made by the said Thangal in various Courts and proceeding are resisted and actions initiated by this defendant as the representatives of the Thiyya Community in Ramanthaly. This defendant does not admit that the plaint property was allotted to the plaintiff in partition and even if it be no possession of this burial ground was ever in the hands of the anyone. It is clear from the document of partition that several properties outstanding in the possession of tenant are seen allotted to various members including plaintiff. As such the partition deed is of no relevance to prove the factum of possession. The averments in para three are false and deliberately made to sustain an action of this nature. Thangal house is a private house and it is not a public place of veneration and worship as alleged in the plaint. There is n o library or prayer hall there. The family of the said Thangal resides there."
4. xx xx xx xx xx
5. It is false to state that the plaint property is not a burial ground. For more than 100 years the plaint property was being used solely as a burial ground of Thiyya community and is being used as a such. The S.M.P. 247 of 1980 mentioned in para 9 of the plaint was dismissed only on the ground that this defendnt is not a cultivating tenant and the properly is a burial ground. That strengthens the case of the defendant."
A careful reading of the above two paragraphs of the written statement would obviously go to show that the respondent has claimed the customary right over the suil properly. Yet another statement of the learned Counsel appearing for the appellant would be that the defendant as DW I has stated that the suit property has been given to them as a lease and in yet another place he would state that it was given to them by the Jenmi as a lost grant and thus inconsistent pleadings or evidence are available on record which are against the case of the respondent and on that score also the respondent has to fail. A reading of the evidence of DW 1 would go to show that he has not stated that they have taken the property from the jenmi on lease. On the other hand, it goes to show that the property had been given by the jenmies and they have been using it from time immemorial. When that be the evidence of DW 1, at no stretch of imagination, it could be said that the respondent has taken different stands. On the other hand, when the oral evidence of DW 1 is compared with the pleadings, particularly, paragraphs 3 and 5 of the written statement, it is obviously clear that the claim is only on the basis of customs. The important documents lo settle the dispute in the appeal, in my view, would be Exts. B1, B6, B7 and B8 and the tax receipts relating to the suit property. Ext. B1 dated 20-8-1934 is a proceeding of the Joint Magistrate, Tellicherry. It is a certified copy. It has been issued in the ordinary course of the official business. Ext. BI discloses that its original contains the seal also. A reading of Ext. BI would go to show that to maintain law and order and for prevailing peace on the initiation of the police, the proceedings had been taken up by the Joint Magistrate under the provisions of the Criminal Procedure Code, and in the proceedings. The Magistrate had been satisfied to hold that the properly is 4 burial ground used by the Thiyya Community. The said proceding had been taken against one Sayed Hamid Koya Thangal who is a predecessor of another Thangal who purchased 25 cents from the plaintiff. I do not find any reason to reject Ext. B1 order which is more than 30 years old and it is a certified copy of the public document. Ext. B6 is a Registration copy of Kanam Kuzhikanam deed dated 10-8-1942. It is also more than 30 years old document. The property of Ext. B6 is comprised in R. S. No. 35/6. The suit property as noticed above lies in R.S. 35/2. In Ext. B6, northern boundary is mentioned as 'Smasanam'. Ext. B7 dated 29-11-1950 is a registration copy of release deed in respect of R.S. 35/13, in which the southern boundary has been shown as 'Smasanam'. No doubt, though the appellant is not a party in Exts. B1, B6 and B7, these documents can be taken into account for the collateral purpose of fixing the suit property on land, particularly, by means of boundaries. Ext. B8 is the proceedings of the land tribunal. Payyannur dated 30-6-1982 in which the 'A' party is the present respondent and 'B' parties arc the appellant and the Saved Muhammed who purchased the 25 cents. The finding of the Tribunal in Ext. B8 would be that no cultivating tenant's right has been established by the parties and however, there is ample material to show that it has been used as burial ground. In this context, the argument of the learned Counsel appearing for the appellant would be that he is not a party in" Exts. B1, B6 and B7 and further he submitted that Ext. B8 is not for deciding whether the suit property is a burial ground or not. It is only for the purpose of deciding Ihe cultivating tenants' right. The facts and circumstances of the above proceeding would not advance the case of the respondent put forward for claiming the suit; property as burial ground, and he further submitted! that nothing has been produced by the respondent from the year 1934 (year of Ext. B1) till 1976 that the suit property was in possession of the respondent as burial ground. On the other hand, the learned Counsel appearing for the respondent submitted that though the appellant is not a party to Exts. B1, B6 or B7 they are documents more than 30 years old and they would go to show that the suit property is a 'Smasanam'. Hence, the fact that it is a burial ground, cannot be ignored though the appellant is not a party to them and further he submitted that the fax receipts marked as Exts. B9 to BI2. right from the year 1958 till 1981 would go to show that the respondent has paid the tax for the suit property as burial ground. Therefore, the contention of the learned Counsel appearing for the appellant that there is no material on record to show that the respondent has been in possession of the property from.1934 till 1976 as a burial ground cannot be accepted. The appellant filed O.S. 228/80 against the respondent for injunction of the entire property (entire survey number) and on the other hand, the respondent field O.S. 80/81 for injunction restraining the Thangal from interfering with their right. Both the suits were tried together and Ext. B2 common judgment was delivered. As per Ext. B2 common judgment, the Thangal was entitled to only a pathway and he is not entitled to the remaining portion. That indicates that the remaining portion of the survey number is in possession of the respondent. No doubt a Commissioner appointed in Ext. B2 suit filed his report and plan which have been marked as Exts. B4 and B5 (C1 and C2) in this present suit. They would go to show that when the Commissioner had visited the property he did not find any remnant to indicate that dead bodies were buried or cremated. But he found a building therein which was built in 1977, and which contains an inscription that it belongs to the Thiyya Community Smasanam. On this report of the Commissioner, the learned Counsel appearing for the appellant attempted to argue that the possession of the respondent at the most can be from the year 1977 and not from time immemorial. Therefore, the appellant is entitled to adecrce for possession and the customary right pleaded by the respondent is not established. But the learned Counsel has forgotten in this context Exts. B1, B6, B7 and B8 in addition to the oral evidence of DW I as well as the tax receipts. A perusal of the above documents along with the Commissioner's report and plan Exts. B4 and B5 would satisfactorily establish that the suit property has been in possession of the respondent from rime immemorial, though the building therein has been built up in the year 1977. The inscription of the year 1977, in the building, I do not think, would advance or support the case of the appellant to any extent.
In view of the above "foregoing reasons and the facts I have discussed in detail. I am fully satisfied to support the judgment of the Courts below and I feel that they need no interference. In the result, the appeal stands dismissed.