JUDGMENT : 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 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. 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. 4. On the basis of the pleadings following issues and additional issues were framed by the court below: 1. Whether plaintiff's community acquired any customary right of burying dead body of their members in the plaint schedule property as alleged ? 2. Is the suit maintainable? 3. Whether the plaintiff is entitled to get the injunction sought for ? 4. Relief and costs. Additional issue No.5: Whether the defendant has got any absolute right over the plaint schedule property? 5. The defendant in O.S. 453/85, who is the appellant herein filed O.S.772/85 for injunction restraining the defendants ten in number including the plaintiff in O.S.453/85 from trespassing into the plaint schedule property and interfering with his right to enjoy the property. Additional issue No.5: Whether the defendant has got any absolute right over the plaint schedule property? 5. The defendant in O.S. 453/85, who is the appellant herein filed O.S.772/85 for injunction restraining the defendants ten in number including the plaintiff in O.S.453/85 from trespassing into the plaint schedule property and interfering with his right to enjoy the property. It is alleged in the plaint that the plaint schedule property having an extent of 2 acres 411/2 cents in survey No.139/2 and 141/3 of Mupliyam village was obtained as per sale deed Nos.3032, 3033, 3034 of 1958 and 1342/59 of Sub Registrars office, Nellai and obtained Jemman right as per purchase certificate issued in O.A. 1396/71 of Kodakara Land Tribunal and he has been in possession and enjoyment of the same within boundaries put up by him. He had also contended that, except himself, none had any right over the same. He came to understand that the community sabha of the defendants had taken a decision to bury their dead bodies in the plaint schedule property and so he anticipated a threat of trespass by them and that necessitated him to file the suit for injunction as mentioned above. 6. Defendants entered appearance and filed written statement reiterating the contentions raised by the first defendant as plaintiff in O.S.453/85 that they obtained a right of burial of the dead bodies of their community as customery right and this is being used so from ancient times. The property of the plaintiff is lying in a lower level than the property used as burial ground and when plaintiff attempted to trespass into the property claimed by them as burial ground, first defendant herein filed O.S.453/85 before the same court for declaration of the right and injunction and suppressing that fact that the present suit has been filed. So they prayed for dismissal of the suit. 7. On the basis of the pleadings following issues were framed by the court below in this case. 1. Has the plaintiffs exclusive possession over the plaint schedule property? 2. Is the plaintiff entitled to an injunction as prayed for? 3. Relief and costs. 8. Both these suits were tried jointly by the trial court and evidence was recorded in O.S.772/85 treating this as leading case. 1. Has the plaintiffs exclusive possession over the plaint schedule property? 2. Is the plaintiff entitled to an injunction as prayed for? 3. Relief and costs. 8. Both these suits were tried jointly by the trial court and evidence was recorded in O.S.772/85 treating this as leading case. PWs 1 to 6 were examined and Exts.A1 to A8 were marked on the side of the appellant herein and DWs 1 to 5 and B1 were marked on the side of the respondents herein. Exts.C1 to C5 were also marked. After considering the evidence on record, the trial court came to the conclusion that the plaintiff in O.S.453/85 had established that the plaint schedule property in that suit was being used as a burial ground to bury the dead bodies of the members of the sambava community of that locality and they acquired a customary right for the same and granted a declaration to that effect and also granted a decree for permanent injunction restraining the appellant from trespassing into the plaint schedule property in that case and demolishing the boundaries if any or doing any act interfering with the customery right exercised by the sambava community people of that locality for burying the dead bodies in the plaint schedule property and decreed O.S. 453/85 and dismissed O.S.772/85. Aggrieved by the same, the appellant filed A.S. Nos.61/90 and 62/90 before the Sub Court, Irinjalakkuda and the appellate court by the impugned common judgment confirmed the decree and judgment passed by the court below and dismissed the appeals. Aggrieved by the same, the present appeals have been filed by the appellant/defeated party in both the courts. Since these appeals arose out of a common judgment, they are disposed of by a common judgment by this court also. 9. During the pendency of the proceedings the respondent in S.A.342/98 died and filed I.A.Nos.2406/08, 2407/08 and C.M.Appln.No.833/08 to implead additional respondents 2 and 3 as his legal heirs after setting aside the abatement and condone the delay of 957 days in filing the petition. In S.A. 350/98, the appellant filed I.A. 2408/08 to record second respondent as legal heir of first respondent and add additional respondent No.11 as his legal heir and that was allowed. But it is seen from the records that, the applications filed in S.A. 342/98 were not disposed of. Since similar prayer has been allowed in S.A. 350/98. In S.A. 350/98, the appellant filed I.A. 2408/08 to record second respondent as legal heir of first respondent and add additional respondent No.11 as his legal heir and that was allowed. But it is seen from the records that, the applications filed in S.A. 342/98 were not disposed of. Since similar prayer has been allowed in S.A. 350/98. this court felt that these petitions can also be allowed and accordingly the same were allowed along with this judgment and further notice to them in this appeal was dispensed with as they were already served in the connected appeal. This court while admitting the appeal, accepted the question of law raised in the appeal memorandum as the quantum of law arise for consideration and issued notice. The following question of law has been raised in the appeal memorandum which has been accepted by this court. 1. Whether the courts below were justified in holding that the respondents therein have succeeded in proving the essential ingredients of origin reasonableness and continuous use to claim customary easement over the plaint schedule property? 2. Whether the courts below were justified in coming to the conclusion is not justified in not holding that the claim of the respondents that their community having 30 families having a right of burial to the extent of 35 cents is unreasonable and unjustifiable? 3. Whether the courts below were justified in granting a right over the plaint schedule property merely on the ground of custom without considering the question of its unreasonableness? 4. Whether the court below was justified in appreciating their evidence in the right perspective before coming to the conclusion that the respondents have acquired a customary right to bury dead bodies of their community? 5. Whether the courts below were justified in dismissing the suit filed by the appellant and decreeing the suit filed by the respondent? 10. When the appeal came up for hearing, the counsel for the contesting respondents submitted that he has no instruction from the party and in spite of notice issued, none approached him. So the counsel for the appellant in both the case alone was heard. 11. Heard Sri.Roy Thomas (Muvattupuzha), Advocate who represented Sri.K.P.Dandapani, senior counsel appearing for the appellants in both the cases. 12. So the counsel for the appellant in both the case alone was heard. 11. Heard Sri.Roy Thomas (Muvattupuzha), Advocate who represented Sri.K.P.Dandapani, senior counsel appearing for the appellants in both the cases. 12. The counsel for the appellant submitted that there was no proper identification of the property, in respect of which injunction was claimed by the plaintiff in O.S.453/85 and the commissioner's report will go to show that, it was not used as a burial ground. Further the evidence adduced on the side of respondents is not sufficient to come to the conclusion that it was used from time immemorial to claim customary right. Further 35 cents of land is not required for this purpose and the right claimed is unreasonable. He prayed for an opportunity to adduce further evidence and to identify the property by taking out a commission and he prayed for remand of the case. He had relied on the decision reported in Satyabhamakutty Pisharassiar v. Chinnathan Master and Others ( 1976 KLT 78 ) and Jose Lalichan and Another v. Augustin ( 2011 (4) KHC 847 ) in support of his case. 13. The case of the appellant in both the cases was that, he is the absolute owner of the plaint schedule property in O.S.772/85 of which plaint schedule property in O.S.453/85 is a part and respondents herein have no right over the same. O.S.453/85 was field by one of the members of sambavar community of that locality in a representative capacity for a declaration that their community had acquired a customary right to use the plaint schedule property in that suit as their burial ground and appellant herein has no right to obstruct the same. So it is clear from the allegations in both the cases and also on the basis of the issues raised by the courts below that the question to be decided is as to whether defendants in O.S.772/85 of which first defendant was the plaintiff in O.S.453/85 has acquired any customary right to use any portion of the property of the appellant as burial ground to bury the dead bodies of the members of their community. 14. 14. In the decision reported in Satyabhamakutty Pisharassiar v. Chinnathan Master and Others ( 1976 KLT 78 ), it has been held that: “A right to bury the dead in the land of another claimed by a section of the inhabitants of a locality can only be a customary right. It is a right claimed by a fluctuating body of persons. it is a right claimed in respect of a particular locality. It is a right which does not arise from a gram. It is not a claim by a defined person. It is not a claim that arises from the beneficial enjoyment of a dominant tenement. So the right claimed cannot be an easement. if such a right is to be upheld by courts it 'should be immemorial in origin, certain and reasonable in nature and continuous in use'. In view of the peculiar nature of the right involved, a finding on the question of actual possession of the property cannot turn the tables against any party. Though the defendants claimed it as an easement, it is not really an easement.” 15. This was arrived at by this court relying on the decisions reported in Lakshmidhar Misra v. Rangalal ( AIR 1950 P.C. 56 ). Sheo Raj v. Mudur Khan (AIR 1934 Allahabad 868) and Mohidin v. Shivlingappa (ILR 23 Bombay 666), but in that case, since there was some dispute regarding the nature of right claimed on the basis of the pleadings and the matter was remitted to the court below for giving opportunity to the parties to specify their rights precisely and adduce evidence on that aspect. 16. In the decision reported in Raj Nandan Singh and Another v. Ram Kishun Lohar and other (AIR 1958 Patna 571), it has been held that, “easementary right, customary right and easement on the ground of lost grant are all fundamentally distinct and hence must be distinctly pleaded in the written statement. 16. In the decision reported in Raj Nandan Singh and Another v. Ram Kishun Lohar and other (AIR 1958 Patna 571), it has been held that, “easementary right, customary right and easement on the ground of lost grant are all fundamentally distinct and hence must be distinctly pleaded in the written statement. Therefore where the defendants made out a case of customary right in the written statement and the issue that was framed with respect to the acquisition by them of that customary right granting a relief of easement by prescription by the trial court and by lost grant by the appellate court is not correct.” In the same decision it has been held that “a customary right exists independent of any dominant heritage and is vested in a defined class or community or a particular locality as distinguished from individual for their sole benefit.” 17. In the decision reported in Ganpatrao Madhorao Hatker and other v. Sheikh Badar Farid Musalman and Others (AIR 1939 Nagpore 193), it has been observed that, “the Easement Act does not say how a local custom may be established, but it has been laid down by the courts that the English Common Law rule of immemorial user is not required to establish a custom in India.” “See 17 All 87 Kuar Sen v. Mamman, (1895).17 All 87= 1895 A WN 10. at page 92, 20 Mad 389, Palaniandi Tevan v. Puthirangonda Nadan, (1897) 20 Mad 389. 23 Bom 666 Hohidin v. Shivlingappa, (1900) 23 Bom 666 = 1 Bom L R 170. and 33 All 257. Shadi Lal v. Muhammad Ishaq Khan, (1911) 33 All 257=9 I C 198=8 A L J 10, When dealing with Sec. 18, that is to say customary easements, this Bench laid down in L.P.A. No.31 of 1936 Karimbux v. Shamrao, L.P.A. No.31 of 1936. the following requisites: The custom must be “(1) reasonable, (2) certain,” and it must be proved that (3) the user was not permissive, (4) the user was not exercised by stealth, (5) the user was not exercised by force, and (6) that the right had been enjoyed for such a length of time as to suggest that by agreement or otherwise the user has become the customary law of the locality.” 18. In the decision reported in S.K.Wodeyar v. Ganapati Madhuling Dixit (AIR 1935 Bombay 371), it has been held that, the essentials of a valid custom are, it must be definite, ancient, uniform and not illegal in itself or unreasonable. It is further held in the same decision that: “It is open to a court to hold a custom proved, even if there are no instances, provided there is sufficient evidence on which the court can rely and say that, that evidence proves that a particular usage has been so long known and so well known in a particular district as to have been tacitly acknowledged as the law governing that particular district.” 19. It is further held, “where the lower court has applied its mind to the law bearing on the question as to the requirements of a valid custom and satisfied itself that, these requirements are present in a particular custom set up, unless there is an error of law, the findings of the court are conclusions on the question of fact and are binding upon the High Court in second appeal.” 20. In the decision reported in Jwala and another v. Ram Dutta and other (AIR 1964 Allahabad 437), it has been held that, in a suit for injunction restraining the defendants from cultivating the plot in suit and interfering with its use by the plaintiff and other members of village community, as cremation ground, it is not necessary for the plaintiffs to ask for the possession of land. Further in the same decision it has been held that, a member of a village community for the enforcement of customary right in respect of cremation ground, though the cremation ground is vested in the ;Gaon Samaj' under the U.P. Zamindari Abolition and Land Reforms Act, suit is maintainable at the instance of every member of the community. 21. In the decision reported in Ramzan Momin and others v. Dasrath Raut and Other (AIR 1953 Patna 138), it has been held that, the right of Mohammadans of a village to bury dead in another man's land is a customary right which can be established by immemorial user. Neither the conception of easement nor the doctrine of lost grant can be applied to such rights as those of the inhabitants of a particular village to continue an ancient use of some land. 22. Neither the conception of easement nor the doctrine of lost grant can be applied to such rights as those of the inhabitants of a particular village to continue an ancient use of some land. 22. In the decision reported in Prabhu Dayal and Another v. Leela Dhar and Other (AIR 1972 Allahabad 269), it has been held that before advantage of Section 18 of the Act can be taken an easement claimed must be in virtue of a local custom which implies that a custom of kind pleaded is prevalent in that locality. It is settled that before a party can succeed on the basis of custom, the particular custom must be specifically pleaded and proved. 23. In the decision reported in Amar Singh and Others v. Kehar Singh and Others (AIR 1995 Him. pradesh 82), the court has considered the distinction between easement and customary easement as follows: “An easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot b severed from it. There can be no easement without dominant tenement and a servient tenement. Rights which are by a community or class or persons by virtue of a customary right are not easement but are right in gross. An easement must always be appurtenant to a dominant tenement. Indeterminate and fluctuating body of persons such as the public or the community cannot have an easement. A customary right is not easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body of persons like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general.” 24. In the decision reported in Parbhawati Devi and others v. Mahendra Narain Singh and Other (AIR 1981 Patna 133), the court has considered the distinction between customary rights, easement and customary easement, as follows: “A customary right is not easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to a particular persons while customary rights are public rights annexed to the place in general. Customary right is also different from customary easement and Easements Act does not at all deal with it. A fluctuating body like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to a particular persons while customary rights are public rights annexed to the place in general. Customary right is also different from customary easement and Easements Act does not at all deal with it. It expressly excludes it from its scope and purview. An easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be served from it. Where the fluctuating body of persons namely, the villagers and not a particular person claimed easement to get water from a reservoir but there was nothing laid in the plaint as to for which land dominant tenement, easement was claimed, no case of easement could be said to have been made out.” 25. So it is clear form the above decisions that the right to bury dead body of a particular community in the particular locality, in the property of another is a customary right and claim to that right, it must be proved by the persons claiming the same that it has been used by custom by time immemorial. 26. The case of the respondents in the appeal is that, the south eastern portion having an extent of 35 cents of the appellant's property is being used as a burial ground to bury the dead bodies of the members of sambava community in that village and this fact was denied by the appellant. The fact that, plaintiff's predecessor obtained the property as per Ext.A1 to A4 documents and appellant obtained purchase certificate in respect of the same as per Ext.A5 is not in dispute. It is also not in dispute that the appellant was paying revenue for the same. The evidence of PW2 is not sufficient to come to the conclusion that this portion is not used for burying the dead bodies of members of the sambavar community in that locality. It is also brought out in evidence of this witness that, there was no proper cultivation of the plaint schedule property in O.S. 453/85 and in other portions it was cultivated with coconut, areacanut etc., The commissioner was examined as PW3 and Exts.C2 to C5 were marked through him. He had stated that the property claimed as burial ground is situated on a higher level than the remaining land. He had stated that the property claimed as burial ground is situated on a higher level than the remaining land. PW5 is another commissioner who proved Ext.C5, where he had stated that he had found the bones of the dead bodies in the property and so it can be treated as burial ground. PW5 was the village officer, who had submitted that it was revealed from the enquiry that this property claimed by the respondents is used as burial ground of the sambava community. PW5 was the executive officer of the said locality who had submitted Ext.B1 report who inspected the property on the basis of the enquiry conducted by the District Collector wherein it was mentioned that the disputed property is the burial ground of sambava community. 27. DW1 was the plaintiff in O.S. 453/85 and first defendant in O.S.772/85 and he had categorically stated that the disputed property is being used as burial ground of their community members from time immemorial and none had obstructed the same and thereby their community people had acquired a customary right in this regard and when the appellant tried to obstruct the same, he filed the suit for establishing that right on behalf of the community. DWs 2 and 3 were also examined for proving the fact that this disputed land is being used as burial ground of sambava community since long time. This was supported by the evidence of DW4 a neighbour of this property. 28. DW5 is the son of Kunju, who was the previous owner of the property from whom appellant's father obtained the same. He had categorically stated that the south eastern portion of the property belonging to their father was set apart a burial ground to bury the dead bodies of sambava community people of that locality and that is being used since long time. It is also spoken by him that this portion was separated by a fence on the northern side. It will be seen from Ext.C3 plan that there existed an old fencing on the northern side of the disputed burial ground and it was lying in a higher position and there were no much improvements in that portion, whereas there are improvements on the other portion of the property. It will be seen from Ext.C3 plan that there existed an old fencing on the northern side of the disputed burial ground and it was lying in a higher position and there were no much improvements in that portion, whereas there are improvements on the other portion of the property. So this also will go to show that the disputed burial ground was really separated from the remaining portion of the property and used as such by the sambava community people to bury their dead bodies since long time and that was known to the plaintiff as well. Further the evidence of DW5 will go to show that his father was the owner of the property from whom the plaintiff obtained the property and this is being used as the burial ground of the sambava community people since long time. No attempt was made on the side of the appellant for measuring the property or to identify the property with the help of a surveyor as such. On the basis of the evidence, it is proved by respondents in these appeals that, the south eastern portion of the property claimed by the appellant marked by the commissioner in Ext.C3 sketch plan is being used as the burial ground of sambava community people of that locality as a custom from time immemorial and DW1 himself was aged more than 65 years at the time when he was examined and he had deposed about the custom prevailing among their community in the locality of burying the bodies in this portion. So under such circumstances, courts below were perfectly justified, on the basis of evidence in coming to the conclusion that the respondents herein had proved customary right of burying dead body of the members of their community in the portion claimed by them and thereby they are entitled to get the declaration and injunction as claimed against interfering with the right of user of the plaint schedule property in their suit as burial ground and rightly decreed the suit. It cannot be said that it is an unreasonable custom. They are not claiming the entire property of the appellant for that purpose. They are only claiming a portion on the south eastern corner which is as per the commissioner's report is lying as a separate plot distinct from the remaining portion on a higher level without any improvements. It cannot be said that it is an unreasonable custom. They are not claiming the entire property of the appellant for that purpose. They are only claiming a portion on the south eastern corner which is as per the commissioner's report is lying as a separate plot distinct from the remaining portion on a higher level without any improvements. In fact the identity of the property is not in dispute but the question was only whether the respondents herein had established a customary right to use the property for burying the dead body and nothing else. So under such circumstances, the dictum laid down the decision reported in Jose Lalichan & Another v. Augustin ( 2011 (4) KHC 847 ), is not applicable to the facts of this case as that was a case where the identity of the property in respect of which injunction was claimed itself was in dispute and in such circumstances, this court has held that without identifying the property properly, the injunction cannot be granted and to identify the property, the matter was remanded to the court below. So under such circumstances the prayer of the counsel for the appellant for remand of the case does not arise and the same need not be granted after lapse of more than 30 years of pendency of litigation between the parties. 29. In view of the discussions made above and on the basis of facts and evidence, the courts below have rightly come to the conclusion that the respondents herein have established a customary right to bury dead bodies of their community people of that particular village in the portion of the plaint schedule property shown by the commissioner in Ext.C3 plan and rightly granted the relief in respect of that portion of the property and decreed O.S. 435/1985. Since the respondents did not claim any right in respect of the remaining portion and there is no dispute regarding that portion as well, the court below was perfectly justified in rejecting the prayer for injunction in O.S. 772/1985 and there is no substantial question of law arises for consideration in these appeals as the question of customary right claimed has to be considered on the basis of facts and that has been correctly considered by the courts below which do not require any interference at the hands of this court. So the appeals lacks merit and the same are liable to be dismissed. In the result both the appeals fail and the same are hereby dismissed. Considering the circumstances, of the case, the parities are directed to bear the respective costs in both the appeals.