DEVASSYKUTTY Vs. AYYAPPAN

JUDGEMENT

(1.) Defendants in O.S. 453/1985 on the file of the Munsiff Court, Irinjalakuda are the appellants in S.A. 342/1998, while plaintiffs in O.S. 772/1985 on the file of the same court is the appellant in S.A. 350/98. Suit O.S. 453/85 was filed by the original first respondent herein in a representative capacity for a declaration that their sambava community has customary right to bury the dead bodies of members of their community in the plaint schedule property and for injunction restraining the appellant herein from obstructing that right or trespass into the property and make any modification in the boundary or commit any act of wast in the plaint schedule property. The plaint schedule property was described as VERNACULER MATTER in survey No.139/2 of Mupliyam village with boundaries on the east-Kittaikunju makan, subrahmanyan vaka parambu, north-Prathi vaka parambu, west-Prathi vaka parambu and south-idavazhy. The allegation in the plaint was that, the property scheduled to the plaint was given to them for the purpose of burial of the bodies of member of sambava community in Mupliyam village long ago and it is being used by the community members from time immemorial as burial ground to bury the dead bodies of their community people and thereby they have acquired a customary right to use the plaint schedule property as burial ground for more than 100 years and none had any right to obstruct the same. It is also alleged in the plaint that, the plaint schedule property is lying as a separate area from that of the defendant's property and there were cashew trees in the property. The defendant had threatened that he would not allow the plaintiffs or their community members to use the property and he would demolish the fencing made on the boundary of the property. The defendant had no right to do the same. So he filed the above suit originally for injunction restraining the defendant from trespassing into the plaint schedule property or causing any damage to the boundaries and obstruct the plaintiff or his community members from using the same as burial ground.

(2.) The defendant entered appearance and filed written statement. He had contended that, the plaint schedule property was included in the property owned by him obtained as per sale deeds and except the defendant, none had any right in the property. He denied the allegation that this property was obtained from Basmathmekkattumana by the sambava community people for using the same as their burial ground. There was no custom prevailing in the community to bury the dead body in a particular place. The plaint schedule property was never used as a burial ground. In fact the people of sambava community buried their dead bodies in their own properties. The allegation of threat etc., were denied. According to him, the plaintiff has no right and he prayed for dismissal of the suit.

(3.) Thereafter the plaint was amended including a prayer for declaration that the sambava community of which plaintiff belongs acquired a customary right to bury their dead bodies in the plaint schedule property as per order in I.A.No.5869/1987. He also filed I.A. 1705/86 for permission to sue in a representative capacity on behalf of the sambava community under Order 1, Rule 8 of Code of Civil Procedure and the same was allowed and publication was effected in this regard. After amendment, defendant filed additional written statement denying the allegation of customary right claimed by the plaintiff and also contended that they are not entitled to get a declaration of customary right as prayed for and prayed for dismissal of the suit.