IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 772 of 2010(A)
1. KUNDATHIL MOHAMMED, S/O.ASSANKUTTY,
... Petitioner
Vs
1. PUTHANVEETTIL NARAYANAN,
... Respondent
2. PUTHANVEETTIL DAMODARAN, AGED 59 YEARS,
3. PUTHANVEETTIL SREEDHARAN,
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent :SRI.P.U.SHAILAJAN (CAVEATOR) FOR R1&R3
The Hon'ble MR. Justice P.BHAVADASAN
Dated :11/08/2010
O R D E R
P.BHAVADASAN, J.
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R.S.A No. 772 of 2010
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Dated this the 11th August, 2010
J U D G M E N T
Plaintiff who has been non-suited by the courts below
is the appellant before this Court.
2. O.S No.50/2005 was instituted by the plaintiff
for perpetual injunction restraining the defendants from
interfering with the possession of the plaintiffs over plaint
schedule property. According to the plaintiff, he obtained
the plaint schedule property as per Ext.A2 dated
23.6.1994. Ever since then he claimed to be in absolute
possession and enjoyment of the same. Defendants have
no manner of right over the plaint schedule property.
They attempted to trespass into the plaint schedule
property. They claimed to be the owners of plaint
schedule property and attempted to put up a compound
wall in the said property claiming that it is a cremation
ground. They have no right to do so. Apprehending
trouble, the suit was laid.
3. The suit was resisted by the defendants. It is
pointed out by them that property originally belonged to
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Puthenveedu Tarward of which defendants are members.
Traditionally the south eastern portion of the property was
used for cremating the dead bodies of members of the
tharwad. There was no objection or interference from any
one for doing so. In the written statement, names of
some of members of the tarwad whose dead bodies were
cremated in that place is mentioned. It is pointed out that
plaintiff cannot claim absolute right over that portion of the
land which is being used as a cremation ground. On the
basis of the above contention, they prayed for dismissal of
the suit.
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
PW1 and Exts.A1 to A6 were marked from the side of the
plaintiff. Defendants had examined DW1 and DW2 and
Exts.B1 and B2 were marked. Commissioner was examined
as CW1. Exts.C1 to C3 (a) are the are the commissioner’s
report and plan.
5. On evaluation of the evidence in the case, the
trial court came to conclusion that the claim made by the
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defendants is true and accordingly dismissed the suit.
6. Plaintiff carried the matter in appeal as
A.S.No.86/2000 before the Sub Court, Thalassery. The
lower appellate court on an independent evaluation of the
evidence in the case found that the findings of the trial
court are just and proper and accordingly dismissed the
appeal.
7. Against the concurrent findings of the court
below, this appeal has been preferred before this Court.
8. Learned counsel appearing for the appellant
pointed out that defendants have no title or possession over
the plaint schedule property. There is nothing to show that
they had any right to use any portion in the plaint
schedule property as a burial ground. Merely saying that a
portion of the plaint schedule property was used as a
cremation ground will not suffice. The title to the property
rests with the plaintiff and defendants have no manner of
right over suit property.
9. Respondents had lodged caveat Respondents
pointed out that the commission report as well as the
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evidence of DW2 is sufficient to show that a portion of the
plaint schedule property is being used as a cremation i.e for
burial of the members of the Puthenveedu Tarwad. It is to
be noticed that even though plaintiff had claim to 32 1/2
cents of land, the tax receipts produced by him cover only
29.825 cents leaving 2.625 cents. That is being used as
the cremation ground. This was one of the factors which
weighed with the courts below.
10. The courts below have considered the
commission reports in considerable detail. There were
three reports and sketches. The courts below have noticed
that the Commissioner has specifically stated that there is
difference in the nature of property between 2.625 cents
and rest of the property in the possession of the plaintiff.
It is also stated by the the commissioner that there are
indications at the site to show that portion was being used
as cremation ground. The evidence of DW2, supports the
case of the defendants. It is seen that his evidence remains
unimpeached though he was subjected to severe cross-
examinations. Both the courts below have concurrently
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held that plaintiff is not in absolute possession of 32 1/2
cents of land. The lower court also noticed that only the
power of attorney holder has been examined on behalf of
the plaintiff and he was unable to give several details
regarding various aspects of the case.
The findings of the courts below are based on the
evidence of facts. No questions of law arise for
consideration in this appeal. No interference is called for
required under Section 100 C.P.C. This appeal is without
merits and it is accordingly dismissed.
P.BHAVADASAN, JUDGE
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