Uthrammal C.K. Vasanthi Thampuratti vs M. Krishna Panikker on 22 January, 1998
'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.