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2022 DIGILAW 442 (MAD)

Nallu Gounder (Died) v. Pitchai

2022-02-18

R.VIJAYAKUMAR

body2022
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree of the Additional Subordinate Judge's Court II at Trichy, dated 28.08.2001 in A.S.No.180 of 1999 confirming the judgment and decree of the District Munsif Court, Manaparai, dated, 05.10.1993 in O.S.No.667 of 1982.) 1. The 1st defendant is the appellant. 2. The plaintiffs filed a suit for declaration of title and permanent injunction for an extent of 4.01 acres in R.S.No.785/1. The suit was decreed by the trial Court. The 1st defendant filed A.S.No.180 of 1999 before II Additional Subcourt, Trichy. The learned Subordinate Judge was pleased to dismiss the appeal. Hence, the 1st defendant has preferred the present second appeal. 3. The plaintiffs contended that the suit schedule property is the ancestral property of the plaintiffs and they have partitioned the same under a registered partition deed, dated, 01.05.1969 under Exhibit A.1. The patta passbook has been issued in their favour in patta No.360 under Exhibit A.2. The chitta has been issued in favour of the plaintiffs under Exhibit A.3. The adangal extracts have been filed as Exhibit A.4. The kist receipts have been filed under Exhibits A.5 and A.6. According to the plaintiffs, the defendants are attempting to interfere with the peaceful possession and their enjoyment. Hence, the present suit. 4. The defendants have filed a written statement contending that northern 50 cents of the suit schedule property is a public burial ground for the villagers of Manaparaipatti. To reach the said burial ground, the villagers have to go through the pathway found in Sanga Gounder land and crossing the said burial ground, the defendants have to reach their own land located on the western side of the suit schedule properties. According to the defendants, the northern 50 cents of the plaint schedule property is a public burial ground and the same is also the pathway to reach their own property located on the western side of the suit schedule properties. 5. The defendants have filed an additional written statement contending that they are not disputing the title of the plaintiffs for the suit schedule properties, but they are only making a claim that northern 50 cents is used as a public burial ground for the entire villagers from time immemorial and they have prescribed such right. 6. 5. The defendants have filed an additional written statement contending that they are not disputing the title of the plaintiffs for the suit schedule properties, but they are only making a claim that northern 50 cents is used as a public burial ground for the entire villagers from time immemorial and they have prescribed such right. 6. The trial Court after considering the oral and documentary evidence, came to the conclusion that the plaintiffs have established their title and possession over the suit schedule properties based upon Exhibits A. 1 to A.6. The documents filed on the side of the defendants does not indicate the existence of their public burial ground in suit schedule properties. That apart, a new public burial ground has been established by the Government. The trial Court also found that though the defendants might have been using the plaintiffs’ property for going through the same to reach their land on their western side, the defendants have not established their easementary right over the property of the plaintiffs. Hence, the suit was dismissed by the trial Court. 7. The First Appellate Court after considering the oral and documentary evidence and after independently re-appreciating the evidence, came to the conclusion that the suit schedule property is not a public burial ground. However, no finding was given by the First Appellate Court with regard to the pathway rights alleged by the defendants through the plaintiffs’ properties. As against the same, the present second appeal has been filed by the 1st defendant. 8. This Second Appeal has been admitted on the following substantial questions of law: (i) When Exhibit B.1-letter from the Revenue Inspector to the Tahsildar clearly established that a part of the suit property is used as public burial ground, whether the Courts below are justified in law in rejecting the same on extraneous grounds? (ii) Whether Courts below are justified in law in ignoring Exhibits C.1 and C.2 Commissioner's report and plan which would decisively establish the contention of the appellant? (iii) When as per Sections 101 to 103 of the Indian Evidence Act, 1872, the burden of establishing the case is upon the person, who would fail, if there is no evidence, whether the Courts below are correct in law in placing the burden of proof upon the appellant/1st respondent instead of the respondents 1 to 3/plaintiffs? 9. (iii) When as per Sections 101 to 103 of the Indian Evidence Act, 1872, the burden of establishing the case is upon the person, who would fail, if there is no evidence, whether the Courts below are correct in law in placing the burden of proof upon the appellant/1st respondent instead of the respondents 1 to 3/plaintiffs? 9. The learned counsel for the appellants contended that the northern 50 cents of the suit schedule property has been used as a burial ground from time immemorial for all the villagers. Hence, the villagers have acquired a right to burry their dead bodies in the suit schedule property. The rest of the property belongs to the plaintiffs. He further contended that the pathway rights of the defendants claimed in the written statement were rejected by the trial Court. However, the same has not been considered by the First Appellate Court. The First Appellate Court has only considered whether the northern 50 cents of the suit schedule property is a burial ground or not. He further contended that, apart from the suit schedule property, there is no other property to reach the lands of the defendants, which are located on the western side of the plaintiff’s property. Hence, he prayed for allowing the second appeal. 10. Per contra, the learned counsel for the respondents 1 to 3 contended that the Courts below have concurrently found that the suit schedule property is the private patta land of the plaintiffs. He further contended that the Courts below have also been found that the suit property is not used as a burial ground for the villagers. The Courts below have arrived at a finding that since there is no common burial ground for the villagers, it was the practice of the villagers to burry the dead bodies in a portion of their own property. According to the learned counsel for the respondents, only their family members have been buried in the suit schedule property and no other villager, who does not belong to the family have been buried in the suit schedule property. He further contended that pending suit a common burial ground for the villagers has been established by the Government and thereafter, no one can be permitted to burry their dead bodies in their own private property. He further contended that pending suit a common burial ground for the villagers has been established by the Government and thereafter, no one can be permitted to burry their dead bodies in their own private property. He further contended that the defendants have not established their easementary right of pathway to go through the property of the plaintiffs to reach the defendants’ property said to be located on the western side of the suit schedule property. Hence, he contended that the Courts below have rightly decreed the suit for declaration of title and permanent injunction. He prayed for dismissal of the second appeal. 11. I have carefully considered the submissions on either side. 12. The suit schedule property is having an extent of 4.01 acres in R.S.No.785. The plaintiffs claimed title and possession over the said property. The defendants in their original written statement have claimed that the northern 50 cents in a suit schedule property is used as a public burial ground. For the rest of the property, the defendants have not made any claim. In the additional written statement, the defendants have categorically admitted that they are not disputing the title of the plaintiff for the entire extent of 4.01 acres and hence, the prayer for declaration of title is unnecessary. From the pleadings on either side, this Court can safely come to a conclusion that the plaintiffs have established their right over the suit schedule properties and the Courts below were right in granting a decree for declaration of title in favour of the plaintiffs. 13. The defendants have made a claim that the northern 50 cents in the suit schedule property has been used as a public burial ground for so many years by the villagers. According to the defendants, there is no common burial ground for the villagers. Hence, the villagers have prescribed a right to use the northern 50 cents of the suit schedule property as a burial ground. The revenue authorities, who are examined on the side of the defendants clearly admit that as per the revenue records, the suit schedule property is a private patta land. It is admitted in the deposition of D.W.1 that there is a burial ground in the 5th defendant's property also. The revenue authorities, who are examined on the side of the defendants clearly admit that as per the revenue records, the suit schedule property is a private patta land. It is admitted in the deposition of D.W.1 that there is a burial ground in the 5th defendant's property also. Hence, it is evident that the villagers have started burying their dead bodies in their own private patta land since there was no public burial ground for the villagers. The plaintiffs have categorically stated that only their family members have been buried in the suit schedule property. That apart, pending suit the Government has established a common burial ground on behalf of the villagers. Hence, this Court can safely come to a conclusion that the defendants have not established that the northern 50 cents of the suit schedule property is being used as a burial ground from time immemorial by the villagers. 14. The revenue records produced on the side of the plaintiffs, namely, Exhibits A.2 to A.6 clearly establish that the plaintiffs are in possession of the suit schedule properties. The defendants in their original written statement have claimed that necessarily they will have to walk through the property of the plaintiff to reach the property of the defendants located on the western side of the suit schedule property. According to the defendants, they have prescribed easementary right by using the said pathway for more that the statutory period. According to the defendants, there is no other pathway to reach the property of the defendants. Hence, the defendants have pleaded an easementary right of pathway over the plaint schedule properties. 15. The trial Court after considering the oral and documentary evidence, came to a conclusion that though the defendants may be using the plaint schedule property as a pathway to reach their own property. They have not established a fact that the defendants have been using the suit schedule property as a matter of right for claiming right of easement. Though a Commissioner was appointed at the instance of the plaintiffs, the defendants have not given any instructions to the Advocate Commissioner to point out that there is no alternative pathway to reach the defendants lands located on the western side of the suit schedule properties. Though a Commissioner was appointed at the instance of the plaintiffs, the defendants have not given any instructions to the Advocate Commissioner to point out that there is no alternative pathway to reach the defendants lands located on the western side of the suit schedule properties. Except the pleadings, the defendants have not let in any credible oral or documentary evidence to establish their right of pathway through the suit schedule properties. The Commissioner report also does not indicate that there is no other alternative pathway to reach the defendants property, except going through the suit schedule property. Hence, the First Appellate Court cannot be faulted with, for not arriving at a finding with regard to the pathway. 16. In view of the above said discussion, the substantial questions of law are answered as follows: (i) Without considering the objections of the plaintiff, the Revenue Inspector has addressed a letter to the Tahsildar under Exhibit B.1, recommending that the suit schedule property be used as a public burial ground. Hence, the Courts below were right in not relying upon Exhibit B.1. That apart, pending suit Government has established a common burial ground for the villagers. (ii) The Commissioner's report under Exhibits C.1 and C.2 would only establish that burial of some dead bodies have taken place within the suit schedule properties. Since all the parties have admitted that there was no common burial ground for the villagers and the villagers have burried the dead bodies in their own private patta land, the said Commissioner's report cannot be relied upon to establish that suit schedule property is a public burial ground. (iii) When the plaintiffs have established their title over the suit schedule property, the burden will be only upon the defendants to establish that they are having right of pathway by prescribtion. 17. The defendants have pleaded easement of pathway in the plaint schedule properties, after admitting the title of the plaintiffs. Hence, the Courts below were right in casting the burden upon the defendant to establish that there was a pathway through the plaint schedule property. That apart, the defendants having admitted the title of the plaintiffs in the additional written statement. The entire burden is upon the defendants to establish either the existence of a public burial ground or right of easement of pathway over the suit schedule properties. 18. That apart, the defendants having admitted the title of the plaintiffs in the additional written statement. The entire burden is upon the defendants to establish either the existence of a public burial ground or right of easement of pathway over the suit schedule properties. 18. In view of the above said discussion, all the substantial questions of law are answered against the appellants. The judgment and decree of the Courts below are confirmed. The Second Appeal is dismissed. No costs.