SATYABHAMAKUTTY PISHARASSIAR Vs. CHINNATHAN MASTER

JUDGEMENT

(1.) Many a legal battle in Courts is fought as part of man's fight for existence or attempts to better his prospects. But the fight in this case is for the right to bury the dead. The 1st plaintiff in O. S. No. 386 of 1966 on the file of the Munsiff, Perintalmanna is the appellant in this second appeal. The above suit was one for a permanent injunction to restrain the defendants and their agents from entering the plaint schedule property and burying dead bodies therein. The learned Munsiff found the plaintiffs' possession and decreed the suit as prayed for. The first plaintiff's title to plaint schedule property was not disputed by the defendants. From the judgment and decree of the learned Munsiff the defendants appealed to the Subordinate Judge, Mancheri. Learned Subordinate Judge came to the conclusion that the plaintiffs did not succeed in proving their possession on the date of suit and hence could not be entitled for the injunction prayed for. Accordingly, the learned Sub Judge allowed the defendants' appeal and dismissed the suit with costs throughout. It is against the above judgment and decree of the learned Sub Judge that the first plaintiff has come up in this second appeal. The question that arises for consideration in this second appeal is as to what exactly is the nature of the right of a section of the people of a locality to bury the dead in another's property. Can it be an easement or is it a customary right

(2.) The plaint schedule property admittedly belonged to the tarwad of first plaintiff and in partition it was set apart to his tavazhi. The plaintiffs' case is that the property was orally entrusted to the 2nd plaintiff and he was cultivating the property with tapioca. Though the defendants were having no right whatsoever over the property, on 24-9-1965 the defendants and their supporters trespassed into the property, destroyed the tapioca cultivation and buried a dead body ignoring the resistance of the 2nd plaintiff. About this a complaint was filed before the local Magistrate as C. C. No. 418 of 1965 against the defendants which ended in their acquittal on 26-10-1965. On 29-5-1966 the defendants again entered the property and buried the dead body of the mother of the 6th defendant ignoring the protests of the 2nd plaintiff who was in possession of the property. According to the plaintiffs, the property was never used as a burial ground and the defendants have no right over the property and hence the plaintiffs are entitled to a permanent injunction against the defendants. The case of the defendants is that the property is used by the harijans of the locality as a burial ground for the last 150 years and this is the only burial ground for the harijans of the locality. The tapioca cultivation of the 2nd plaintiff is a false story. The property is in the possession of the defendants. The allegation that the defendants on 29-4-1965 destroyed the tapioca cultivation is false. The criminal complaint filed against the defendants was dismissed after taking proper evidence. The allegation that the defendants have no easement right over the property is also denied by the defendants.

(3.) Shri T. R. Govinda Wariyar, learned counsel for the 1st plaintiff appellant contends that there is a misdirection on the part of the court below regarding the question of law to be decided in the case. Learned counsel points out that the suit is one to restrain the defendants from entering the property and burying the dead there and the right set up by the defendants is to come to the property and do something there. Learned counsel further points out that the written statement was amended as per order on I.A. No. 909 of 1968 dated 19-6-1968 to set up a right of easement and hence there is an admission of the plaintiffs' possession by implication. Learned counsel then contends that a right of easement is different from rights in gross and refers to the following passage on pages 99 and 100 on Law of Easements and Licences in India by B. B. Katiyar, 8th Edition.