Dismissed

Avara Haji v. Velayudhan

Kerala HC6 Jul 2012RSA/786/2012

Case brief

AI extract

What is this about?

Regular Second Appeal dismissed. Appeal filed against dismissal of suit seeking declaration that proposed burial ground was part of plaintiff's property and praying for injunction. Court held no substantial question of law involved.

What the court decided

AI extract

Avara Haji Vs Velayudhan — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934

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RSA.No. 786 of 2012 ()

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AS.11/2006 of ADDL. SUB COURT, OTTAPALAM OS.25/1997 of MUNSIFF-MAGISTRATE COURT,MANNARKAD

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APPELLANT(S)/APPELLANT-PLAINTIFF:

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AVARA HAJI, AGED 74 YEARS S/O.CHEKKAMMA, KUNNATH, KUNDOORKUNNU THACHANATTUKARA AMSOM & DESOM MANNARKKAD TALUK.

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BY ADVS.SRI.T.K.VENUGOPALAN SRI.SHIBU JOSEPH SRI.V.V.VARGHESE

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RESPONDENT(S)/RESPONDENTS-DEFENDANTS:

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VELAYUDHAN, AGED 59 YEARS S/O.CHAMI, PARA VEEDU, ARIYOOR AMSOM & DESOM KANNARKKAD TALUK-678 702.

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THEYYUNNI, AGED 64 YEARS S/O.KRISHNAN

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RESIDING AT THACHANATTUKARA AMSOM & DESOM MANNARKKAD TALUK-678 582.

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RAMAN, AGED ABOUT 69 YEARS S/O.KRISHNAN

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RESIDING AT THACHANATTUKARA AMSOM & DESOM MANNARKKAD TALUK-678 582.

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KARUPPAN, AGED 71 YEARS

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S/O.AYYAPPAN, KOTTAPPURAM DESOM, KULUKKILIYAD AMSOM OTTAPPALAM TALUK-679 101.

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KARTHIAYANI, AGED 56 YEARS W/O.KANDUNGI, PARIYARATH, ARIYOOR AMSOM & DESOM MANNARKKAD TALUK-678 582.

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APPUKUTTAN @ AYYAPPAN, AGED ABOUT 46 YEARS S/O.KANDUNGI, PARIYARATH, ARIYOOR AMSOM & DESOM MANNARKKAD TALUK-678 582.

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RSA NO.786/2012

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KALI, AGED 50 YEARS D/O.KANDUNGI, PARIYARATH, ARIYOOR AMSOM & DESOM MANNARKKAD TALUK-678 582.

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APPU @ CHAMI, AGED 41 YEARS S/O.KANDUNGI, PARIYARATH, ARIYOOR AMSOM & DESOM MANNARKKAD TALUK-678 582.

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LAKSHMI, AGED 31 YEARS D/O.KANDUNGI, PARIYARATH, ARIYOOR AMSOM & DESOM MANNARKKAD TALU-678 582.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No.786 of 2012

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Dated this the 6^th day of July, 2012.

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JUDGMENT

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Plaintiff in O.S.No.25 of 1997 of the court of learned Munsiff-Magistrate, Mannarkkad is aggrieved by the dismissal of that suit as confirmed by the learned Sub Judge, Ottapalam in A.S.No.11 of 2006.

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Appellant/plaintiff prayed for a declaration that plaint B schedule is not a burial ground and for prohibitory injunction. The case of the appellant is that plaint A schedule items 1 to 3 belonged in jenm to Keezhillath Janaki Amma and was acquired by the appellant as per Ext.A1, assignment deed No.751 of 1953, followed by his obtaining purchase certificate No.1207 of 1975 for the 1.82 acres in S.M.proceedings No.5653 of 1975. Ext.A2 series are the purchase certificates. Ext.A4 is produced to show that appellant is paying revenue for the property. According to the appellant, there is a pathway on the western side of items 1 and 2 and east of item 3 which is covered by Ext.A1. That pathway was later formed into a road with six feet wide space surrendered from item 3 of the plaint schedule. Appellant has constructed a building in items 1 and 2 about 20 years back and a compound wall leaving 30 cents outside that compound wall (which is described as plaint B schedule). According to the appellant, the said 30 cents form part of items 1 and 2 covered by Ext.A1. Respondents made an application to the Revenue Divisional Officer (for short, “the RDO”) claiming the

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RSA No.786/2012

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plaint B schedule as their burial ground. Appellant contends that plaint B schedule is not a burial ground and prayed for declaration and injunction as prayed for.

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Respondents contended that appellant has no right or possession of the plaint B schedule and that it is not part of the plaint A schedule items. Respondents and their predecessors-in-interest are using the plaint B schedule as a burial ground for more than 50 years. Appellant constructed a wall and hence they moved the RDO for necessary direction. The RDO directed the appellant to remove the wall constructed. At that time appellant filed the suit.

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The trial court found against plea of the appellant and non-suited him. That was confirmed by the first appellate court.

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It is argued that there is no evidence to show that plaint B schedule is a burial ground. Nor have the respondents obtained permission from the local authority to use the plaint B schedule as a burial ground. Learned counsel also challenged finding of the courts below that plaint B schedule is not part of the plaint A schedule.

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Ext.A1 refers to items 1 to 3 of the plaint A schedule. Measurement of items 1 to 3 is given in Ext.A1 in six feet koles. Courts below referred to Ext.C5, report of the Advocate Commissioner and found that by measurement also plaint B schedule is not shown to be part of the plaint A

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RSA No.786/2012

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schedule items 1 to 3. According to the courts below, if plaint B schedule is also taken, the extent will be more than what the appellant is otherwise entitled as per Ext.A1. A further fact courts below noticed is that the version of the appellant that he constructed compound wall leaving 30 cents (plaint B schedule) outside the wall is difficult to accept.

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Referring to Ext.C1, report dated 21.07.1997, courts below observed that atleast one dead body was buried in the plaint B schedule. The Commissioner was shown 8 -10 places where dead bodies, according to the respondents were buried. The Commissioner was satisfied that atleast one place was used for burial of the dead body. The Advocate Commissioner conducted a local enquiry and learnt that dead body was buried in plaint B schedule. A further fact that the Commissioner has reported in Ext.C1 is that the plaint B schedule was known by name 'panar chodala' (meaning thereby the graveyard of the panar community).

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The first appellate court also referred to the relevant evidence and held that plaint B schedule does not form part of plaint A schedule items. I must notice that appellant did not ask for a declaration of the title and possession he claimed in the plaint B schedule but prayed for a declaration that plaint B schedule is not a burial ground.

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RSA No.786/2012

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Having heard the learned counsel and gone through the judgments under challenge I am not satisfied that any substantial question of law is involved in this appeal requiring its admission.

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Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Avara Haji v. Velayudhan

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Avara Haji v. Velayudhan

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