JUDGMENT : The 2nd defendant in O.S. No.302/2002 of the Munsiff's Court, Adoor has come up with the Second Appeal by challenging the judgment and decree passed by the Additional District Court, Pathanamthitta in A.S. No. 172/2005. 2. The 2nd defendant is originally styled as Salem Marthoma Church, Chathannoopuzha, represented by its Mooppan Pappan, Nellikunnil veedu, Vayala Muri, Erathu village. 3. Four persons namely, Pappachan Biji, Kutty Amma Pappachan, Ammini Kunjappay and Samuel, filed O.S. No. 302/2002 as a simple suit for injunction seeking the following relief:- "The defendants or persons claiming under them shall not make use of plaint D, E and F schedule properties for burying the dead or disposal of the dead or to transform it as a burial ground, without obtaining licence from the District Collector under the Kerala Burial and Burning Ground Rules, 1967." The title of the Rule noted above is patently wrong and the plaintiff might have intended it as 'Kerala Panchayat (Burial and Burning Grounds), Rules 1967' (hereinafter referred to as 1967 Rules'). 4. The case of the plaintiffs is that the defendants in the suit are making use of plaint D, E and F schedule properties for the disposal of the dead, without obtaining valid licence from the District Collector under the aforesaid Rules. The suit has been filed after the required notification under Order I Rule 8 CPC. After the filing of the suit, it seems that defendants 1 and 3 have given up their claims with regard to plaint D and F schedule items. The only contesting defendant was the present appellant, whose property is scheduled as plaint E schedule item. According to the 2nd defendant, they purchased plaint E schedule property through Ext.B5 sale deed dated 11.10.1977 for making use of it as a burial ground. It is their further case that even prior to the purchase of the property through Ext.B5, they had been using the said property as a burial ground for burial of the dead, with the permission of the then owners of the property. 5. Initially, the Munsiff's Court, Adoor dismissed the suit and consequently, A.S. No. 172/2005 was preferred by the plaintiffs as appellants. 5. Initially, the Munsiff's Court, Adoor dismissed the suit and consequently, A.S. No. 172/2005 was preferred by the plaintiffs as appellants. The learned Additional District Judge allowed the appeal by setting aside the judgment and decree of the trial court, and passed a decree restraining the respondents/defendants from burying dead bodies in the plaint D, E and F schedule properties and from converting the said properties as cemetery. 6. The Second Appeal has been admitted on the following substantial questions of law:- (1) Whether the lower appellate court was justified in concluding that the cemetery of the appellant situated i plaint E schedule property is to be registered as per the provisions of Kerala Panchayat (Burial and Burning Grounds) Rules, 1967? (2) Whether the lower appellate court was justified in finding that the theory of estoppel by acquiescence is not applicable in this case? 7. Heard Sri. V. Philip Mathews, learned counsel for the appellant, and Sri.Kurian George Kannanthanam, learned Senior Counsel for respondents 1 to 4. 8. According to the learned counsel for the appellant, the suit itself is not maintainable for want of proper notification under Order I Rule 8 CPC and also for want of leave under Section 91(1) CPC. It has also been argued that there is deemed registration of plaint E schedule property as a burial ground, since it was being used as a burial ground even prior to the commencement of 1967 Rules. When deemed registration is there, the appellant can make use of the said property as a burial ground, it is argued. It has been further argued that as per the second proviso to Rule 8 of 1967 Rules, it shall be lawful for the executive authority to permit any burial in private grounds in individual cases in which he is satisfied that such burial is not detrimental to human health or sanitation. Further, according to the learned counsel for the appellant, plaint E schedule property was being used as a burial ground, as is evident from Ext.B4 burial register, for the period from 1965 onwards and, therefore, the said property has deemed registration within the meaning of Rule 4(1) of 1967 Rules. Further, according to the learned counsel for the appellant, plaint E schedule property was being used as a burial ground, as is evident from Ext.B4 burial register, for the period from 1965 onwards and, therefore, the said property has deemed registration within the meaning of Rule 4(1) of 1967 Rules. It has also been argued that there is no evidence in the suit to show that there is violation of Rule 5 of the 1967 Rules for enabling the individual plaintiffs to point out violation of the 50 metres distance rule. It has also been argued that the lower appellate court has failed to consider the entries in Ext.B4 for the year 1965 and 1966 relating to two burials. The learned counsel for the appellant has argued that the suit is barred by limitation and further that, the suit is hit by Section 41(g) as well as Section 41(h) of the Specific Relief Act, 1963. 9. Per contra, learned Senior Counsel for respondents 1 to 4 has argued that this is not a suit coming within the scope of Section 91(1) CPC and further that even without having recourse to the provision of leave under Section 91(1) CPC in individual cases, persons can maintain the suit to challenge the statutory violation, which paves way for individual grievances. According to the learned Senior Counsel, no leave under Section 91(1) CPC is required in the matter as far as the present plaintiffs are concerned. Regarding the relief sought for, it has been argued that the court below was perfectly justified in granting such a relief by moulding the relief, even though the plaintiff had quoted the wrong provision of law in the relief sought for in the plaint. It has been further argued that even though the Commissioner appointed by the trial court was not examined as a witness to prove the Commissioner's report, and even in the absence of any proof relating to the distance rule, the suit can be well maintained, when there are other statutory violations. It has been further argued that even though the Commissioner appointed by the trial court was not examined as a witness to prove the Commissioner's report, and even in the absence of any proof relating to the distance rule, the suit can be well maintained, when there are other statutory violations. It has been further argued that when the property itself was purchased through Ext.B5 by the appellant in the year 1977 only, the appellant cannot be heard to say that the said property covered by Ext.B5 was being used as a burial ground for any period prior to 1977 and, therefore, the appellant cannot contend that at the commencement of 1967 rules, the property was being used as a burial ground enabling deemed registration. 10. Regarding the question of limitation, the learned counsel for the appellant has relied on the decision in Manuel Vivera v. Union of Anglo Indian Association & Others [2016 (3) KLJ 781]. In the said case, what was considered by this Court was the application of Article 58 of the Limitation Act, 1963. In that case, it was held that the legislature has prescribed that the suits for such declaration should be filed within three years when the right to sue "first accrues". Here, in this particular case, what is applicable is Article 113 of the Limitation Act. Therefore, the period of limitation prescribed is three years when "the right to sue accrues". If the complaint is of a recurring cause of action, no doubt, the suit can be filed within three years when such right to sue accrues. Unlike in the case of Article 58, in Article 113 the terms "first accrues" are absent. Therefore, there is no merit in the argument forwarded by the learned counsel for the appellant that the suit is barred by limitation. 11. The learned counsel for the appellant has argued on the basis of the decision in Rev. Fr. Antony v. Health Inspector & others [ 1964 KLT 15 ] that burial of the dead by itself does not constitute a nuisance. It was held therein that parties to constitute a nuisance must come within the definition of that expression as given in Sections 227 and 39 of the Travancore Cochin Public Health Act, 1955. The argument is that a suit alleging public nuisance will not lie. It was held therein that parties to constitute a nuisance must come within the definition of that expression as given in Sections 227 and 39 of the Travancore Cochin Public Health Act, 1955. The argument is that a suit alleging public nuisance will not lie. Relying on the decision in B.K.N. Pillai v. George Mendez [ 1988 (2) KLT 605 ], it has been argued that when four persons have come up with a plaint claim, it should be treated as a suit under Section 91(1) of the Code of Civil Procedure, even when they are complaining of nuisance or complaining of other wrongful act affecting or likely to affect the public. It has also been argued that a suit claiming reliefs based on common law principles is not maintainable in Travancore Cochin area, wherein such English principles were not available. 12. In the decision in B.K.N. Pillai (supra), it was held in paragraph 4: "However, if two or more persons opt to file a suit involving public nuisance, the institution of the suit shall be with the leave of the court. If it is instituted without leave of the court, it is open to the court to dismiss the suit or to treat that the suit has not been validly instituted. If plaintiffs succeed in obtaining leave, the suit, though filed earlier, will be treated as instituted only when leave is obtained. If there is any application for grant of leave, it is not proper to dismiss the suit until disposal of such application." 13. Per contra, the learned Senior counsel for respondents 1 to 4 has pointed out that this is a suit in which the plaintiffs have highlighted statutory violation, which clearly raise individual grievance on the part of the plaintiffs. According to the learned Senior Counsel, when a property is not registered as a burial ground or when it has no deemed registration within the meaning of Rule 4(1) of 1967 Rules, the same cannot be made use of as a burial ground. Of course, the second proviso to Rule 8 of 1967 Rules is an exception. 14. It has been pointed out that even according to DW1, who was examined by the appellant as the Secretary of the appellant Church, E schedule property was being used as a burial ground for the period from 1987 onwards. Of course, the second proviso to Rule 8 of 1967 Rules is an exception. 14. It has been pointed out that even according to DW1, who was examined by the appellant as the Secretary of the appellant Church, E schedule property was being used as a burial ground for the period from 1987 onwards. On this point, the learned counsel for the appellant has argued that DW1 was a young man of 37 at the time of his examination and he was, in fact, not aware of the history and details of the Church as well as the burial ground. 15. According to the learned counsel for the appellant, the lower appellate court has failed to peruse the entries in the first page of Ext.B4 burial register, wherein two burials, the first one in the year 1965 and the second one in the year 1966, were recorded. In the second page, which is the over leaf of the first page, a burial dated 22.06.1986 was recorded. From page No.4 onwards, burials for the period from 04.07.1987 onwards were recorded. It is true that the lower appellate court has failed to note down the entries in page No.1 of Ext.B4. 16. According to the learned Senior Counsel for respondents 1 to 4, even if two burials were there, one in the year 1965 and another one in the year 1966, even then it cannot be said that the said property was a burial ground and the said property was being used as a burial ground at the commencement of 1967 Rules. Even if the second proviso to Rule 8 of 1967 Rules has been accepted with regard to the said two burials, the said proviso does not say anything with regard to the burial ground; whereas, it says only with regard to the burial in individual cases in private grounds. The said provision enables the executive authority to grant permission to conduct such individual burial in a private ground. That does not mean that by merely permitting such an individual burial, the ground can be categorised or classified or transformed as a burial ground. The said provision enables the executive authority to grant permission to conduct such individual burial in a private ground. That does not mean that by merely permitting such an individual burial, the ground can be categorised or classified or transformed as a burial ground. There are admissions from the part of DW1 that he gave information to the learned counsel for the 2nd defendant to incorporate in the affidavit as well as the appeal memorandum in the Civil Miscellaneous Appeal that the plaint D schedule was being used as burial ground by the Church for the period from 1987 onwards. The learned counsel for the appellant has pointed out that DW1 was not a competent or qualified person to submit anything about the state of affairs that were prevailing prior to 1967. It is true that DW1 was young at the time of his examination. 17. As rightly pointed out by the learned Senior Counsel for respondents 1 to 4, when individual grievances have been raised and alleged by the plaintiffs on account of statutory violations, it cannot be treated as a suit coming within the scope of Section 91(1) of the CPC. As per Section 91(2), nothing in the said Section shall be deemed to limit or otherwise affect any right of suit, which may exist independently of its provisions. According to the learned Senior Counsel, the plaint E schedule property is situated just within 10 to 15 metres away from the residential building of the plaintiffs. It has been reported by the Commissioner that plaint E schedule property is situated just at a distance of 29 metres from the house of one of the plaintiffs. It has also been pointed out that the said E schedule property is situated 21 metres away from the boundary of the property of another plaintiff. It is true that the distance with regard to plaint E schedule property from the house of the said plaintiff is not shown in the Commissioner's report. 18. The learned Senior Counsel has relied on the decision in Mariamma v. Thomas [ 2003 (1) KLT 245 ], wherein an individual suit was preferred by the plaintiff alleging the violation of building Rules. In that case, it was contended that the suit was hit by Section 91(1) of the CPC, for want of leave. 18. The learned Senior Counsel has relied on the decision in Mariamma v. Thomas [ 2003 (1) KLT 245 ], wherein an individual suit was preferred by the plaintiff alleging the violation of building Rules. In that case, it was contended that the suit was hit by Section 91(1) of the CPC, for want of leave. In Mariamma's case (supra), it was held: "It is clear that when a citizen starts construction of a building in violation of the Municipal Regulations and there is allegations of collusion between the officers of the local authority, a single individual can file a simple suit for injunction to restrain the wrongdoer from proceeding such an illegal act. Such a suit will not be one coming under S. 91(1) of the Code of Civil Procedure. So, there is no force in the argument that since the suit is filed by single individual it is not maintainable." Matters being so, this Court is of the view that the suit is not hit by Section 91(1) CPC for want of leave. 19. The learned counsel for the appellant has pointed out that a Commission was appointed ex-parte and even according to the Commissioner's report, notice was served by the Commissioner on the first defendant only. It has been argued that the Commissioner had not cared to issue notice to the present appellant and, therefore, without the examination of the Commissioner as a witness, the Commissioner's report could not have been admitted in evidence or relied on. When the report has not been proved, its contents cannot be relied on. It is true that the mere marking of a document alone cannot make its contents admissible in evidence. 20. Regarding the existence of individual grievances on account of any statutory violation, it has to be proved whether the burial ground is a new burial ground within the meaning of Rule 5 of 1967 Rules, which is presently Rule 5 (1) of Kerala Panchayat Raj (Burial and Burning grounds) Rules, 1998 (hereinafter referred to as 1998 Rules'). 21. Presently, 1998 Rules hold the field. In order to bring out deemed registration for a cemetery, Rule 4(1) of the 1998 Rules has to be applied. 21. Presently, 1998 Rules hold the field. In order to bring out deemed registration for a cemetery, Rule 4(1) of the 1998 Rules has to be applied. In order to apply the said provision, it should be a cemetery, which existed at the commencement of 1998 Rules and further that, it should be one registered or deemed to have been registered under 1967 Rules. When the said two qualifications are there, it should be deemed that the said cemetery is duly registered. According to the learned Senior Counsel, if there is no such deemed registration for a cemetery as per Rule 4(1) of 1998 Rules, it is hit by Rule 5(1) of 1998 Rules. If there is no deemed registration within the meaning of Rule 4(1) of 1998 Rules, it is incumbent upon the party, who has to open a new burial ground or cemetery, to file an application as prescribed under Rule 6 of 1998 Rules. Earlier, there was a provision enabling deemed licence under Rule 6(8) of 1967 Rules. At the same time, such a provision is not there in 1998 Rules. 22. According to the learned counsel for the appellant, an application was preferred by the appellant for licence in respect of plaint E schedule for making use of it as a burial ground in the year 1999 or prior to it, which invited O.S. No.236/99 of the Munsiff's Court, Adoor. The same is evident from Ext.B2. In paragraph 4 of Ext.B2 plaint, it was averred that this appellant had also preferred an application for licence. Of course, whether there was such an application or not and whether there was deemed licence or registration under 1967 Rules is a matter of evidence and the same has to be proved. From Ext.B4, it is evident that several burials were conducted in the property. It is for the appellant to establish that they have deemed registration as aforesaid. 23. In the year 1996, at first O.S. No. 216/1996 was filed by three persons as plaintiffs seeking a decree for perpetual injunction against the use of the properties including plaint E schedule herein, as a burial ground or for the disposal of the dead. The plaintiffs in the said suit had withdrawn from the said suit with liberty to file a fresh suit. 24. The plaintiffs in the said suit had withdrawn from the said suit with liberty to file a fresh suit. 24. Thereafter, some other plaintiffs including the father of the 1st plaintiff herein, filed O.S. No. 236/1999 whereby, they have sought for a relief that licence shall not be granted for making use of C, D and E schedule property as burial ground. During the pendency of the said suit, the present suit has been filed. 25. According to the learned counsel for the appellant, the relief sought for in the present suit cannot be granted in the light of the repeal of the 1967 Rules and the coming into force of 1998 Rules. The relief that has been sought for is that until the appellant obtains licence under the 1967 Rules, the appellant shall be restrained from making use of the plaint E schedule property as a burial ground or for the disposal of the dead. According to the learned counsel for the appellant, in case such a relief is granted, the appellant will be no where in the sense that the appellant cannot obtain a licence under the 1967 Rules as the said Rules are no longer in force. 26. It has to be noted that the lower appellate court has not decreed the suit in terms of the plaint; whereas the lower appellate court has decreed the suit by restraining the defendants from burying dead bodies in plaint D, E and F schedule properties, and from converting the said properties as cemetery. According to the learned counsel for the appellant, the lower appellate court ought not to have granted such a relief, especially when such a relief has not been sought for. It has been argued that what has been granted is more than what has been demanded. Apart from that, the learned counsel for the appellant has pointed out a serious infirmity in the decree, which has resulted in a situation wherein the appellant is precluded from applying for the grant of licence, in case it is under 1998 Rules or to claim the benefit of the deeming provision within the meaning of Section 4(1) of the 1998 Rules. The said arguments seem to be perfectly correct. 27. The said arguments seem to be perfectly correct. 27. Even though the learned counsel for the appellant has argued that on account of acquiescence, the plaintiffs are not entitled to have a decree of perpetual injunction as prayed for in view of Section 41(g) of the Specific Relief Act, 1963, presently, it cannot be said that the plaintiffs had acquiesced the use of plaint E schedule property as a burial ground. It is a matter for evidence to prove such acquiescence. Whether there was an intentional relinquishment of a known right is also a question that has to be decided. 28. Further, the learned counsel for the appellant has argued that as per Section 41(h) of the Specific Relief Act, when an equally efficacious relief can certainly be obtained by any other usual mode of proceeding, the relief sought for cannot be granted. As per Rule 4(2) of the 1998 Rules, if any dispute arises as to whether the cemetery is in existence at the commencement of the Rules and deemed to have been registered under the 1967 Rules, the same shall be subject to the decision of the concerned District Collector and the decision thereon shall be final. It is true that it is an enabling provision for the decision of such a dispute. At the same time, it cannot be said that the jurisdiction of the civil court has been taken away by such a provision. This is, no doubt, a suit coming under Section 9 CPC and, therefore, the civil court can entertain such a suit. The relief sought for is one for perpetual injunction. It cannot be said that through the decision of the District Collector under Rule 4(2) of the 1998 Rules, an equally efficacious remedy can be granted to the plaintiffs. In such case, it cannot be said that a decree of perpetual injunction cannot be granted under Section 41(h) of the Specific Relief Act. 29. It cannot be said that through the decision of the District Collector under Rule 4(2) of the 1998 Rules, an equally efficacious remedy can be granted to the plaintiffs. In such case, it cannot be said that a decree of perpetual injunction cannot be granted under Section 41(h) of the Specific Relief Act. 29. This Court is of the view that much discussion is not required to conclude that the matter has to be decided afresh by the trial court, after giving an opportunity to the plaintiff to amend the plaint, if required and if permissible, and also for deputing the very same Commissioner, if available, or another Commissioner in order to ascertain the distance between the then existing residential building of the plaintiffs and plaint E schedule property and also the distance between the then existing water resources of the plaintiffs and the plaint E schedule property and to see whether there is violation of Rule 5(1) of 1998 Rules. 30. As far as plaint D and F schedule properties are concerned, the judgment and decree passed by the lower appellate court have attained finality, since the same has not been challenged. Presently, the matter is open to challenge with regard to the plaint E schedule property only. Therefore, defendants 1 and 3 are bound by the judgment and decree passed by the lower appellate court. In the result, this Regular Second Appeal is allowed and the judgment and decree so far as it relates to plaint E schedule property and the 2nd defendant are concerned, are set aside. The matter relating to the 2nd defendant and the plaint E schedule property is remitted to the trial court for fresh disposal in accordance with law, based on the observations made above. The said parties concerned, shall be permitted to adduce further evidence, if so advised. The parties shall appear before the trial court on 15.03.2017. Being an old matter, the trial court shall dispose of the matter, expeditiously.