The Penthacost Mission vs Thankamma
2021 Latest Caselaw 20653 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
     TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                       RSA NO. 562 OF 2021


 AGAINST THE ORDER/JUDGMENT IN AS 49/2016 DATED 30.01.2021 OF SUB
                   COURT,KOTTARAKKARA, KOLLAM
  ARISING FROM ORDER/JUDGMENT IN OS 569/2013 DATED 29.06.2016 OF
                  MUNSIFF'S COURT,KOTTARAKKARA


APPELLANTS/APPELLANTS 1 & 3/DEFENDANTS 1 & 3:


    1     THE PENTHACOST MISSION
          KOTTARAKARA, REP.BY CENTRAL PASTOR, KIZHAKKEKARA MURI,
          KOTTARAKARA VILLAGE, BY POWER OF ATTORNEY HOLDER JOY
          KUTTY, AGED 67 YEARS, SON OF DANIEL, MELITTU VEEDU,
          NELLIKUNNAM P.O., UMMANOOR VILLAGE, KOTTARAKARA TALUK.

    2     JOY KUTTY, AGED 67 YEARS
          SON OF DANIEL, MELITTU VEEDU, NELLIKUNNAM P.O.,
          UMMANOOR VILLAGE KOTTARAKARA TALUK.

          BY ADVS.
          MATHEW B. KURIAN
          K.T.THOMAS



RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 4 TO 6:


    1     THANKAMMA
          AGED 61 YEARS, W/O.LATE KORITHU KITTIYIL, PUTHEN VEEDU,
          VILANGARA MURI, UMMANOOR VILLAGE, KOTTARARAKA TALUK,
          PIN CODE 691 547
 RSA 562/2021
                                  2




    2      STATE OF KERALA
           REP.BY CHIEF SECRETARY, SECRETARIAT,
           THIRUVANANTHAPURAM 695 001

    3      DISTRICT COLLECTOR
           KOLLAM, CIVIL STATION, KOLLAM 691 547

    4      SECRETARY
           UMMANNUR GRAMA PANCHAYAT, UMMANNUR - 691
           547, KOLLAM DISTRICT.

           SRI.BAIJURAJ, SR.GOVERNMENT PLEADER


        THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION      ON   01.10.2021,       THE   COURT   ON   05.10.2021
DELIVERED THE FOLLOWING:
 RSA 562/2021
                             3



                   N.ANIL KUMAR, J.
                  ============
                  RSA No.562 of 2021
          ======================
          Dated this the 5th day of October, 2021

                       JUDGMENT

This Regular Second Appeal is directed against

the judgment and decree dated 30.1.2021 in AS

No.49/2016 of Sub Court, Kottarakkara (hereinafter

referred to as the "First Appellate Court") arising from

the judgment and decree dated 29.6.2016 in OS

No.569/2013 of Munsiff's Court, Kottarakkara

(hereinafter referred to as the "trial court").

2. The unsuccessful defendants in both the

courts below filed this Second Appeal against the

concurrent judgments of the courts below restraining

defendants 5 and 6 from issuing licence to defendants

1 to 3, so as to use plaint B schedule property as a

cemetery or burial ground by way of decree or

permanent prohibitory injunction.

3. The plaintiff filed the suit before the trial RSA 562/2021

court alleging that the defendants are making

attempts to construct a vault in the plaint B schedule

property violating the provisions contemplated under

the Kerala Panchayat Raj (Burial and Burning Ground)

Rules, 1988 (for short "the Rules").

4. The plaintiff is the owner of plaint A

schedule property as per sale deed No.2221/1984.

Her husband is no more and she has been residing in

the plaint A schedule property along with her two

daughters. The property on the Northern side of the

plaint A schedule property originally belongs to one

Kunjurama, who sold an area of 2.02 Acres of her

property, which is on the North-Western portion of the

plaint A schedule property, to the first defendant.

The first defendant is Penthacost Mission, represented

by its Central Pastor at Kottarakkara. The first

defendant's property is scheduled as the plaint B

Schedule. According to the plaintiff, the defendants

are attempting to convert the property into a burial RSA 562/2021

ground against the Rules. It is stated that, in case, a

burial ground is constructed in the plaint B schedule

property, the seepage of water from the plaint B

schedule property will pollute the well in the plaint A

schedule property and as also nearby wells. Hence,

the suit was filed for permanent prohibitory injunction

restraining defendants 1 to 3 from converting the

plaint B schedule property as a cemetery or as a

burial ground.

5. Defendants 1 to 3 filed written statement

contending that the plaint B schedule property was

purchased by the first defendant as per Ext.B1 sale

deed for the believers of the church. They admitted

that they had purchased the plaint B schedule

property for the purpose of commencing a burial

ground. They also stated that not less than 17 dead-

bodies were already buried in the said property.

6. During the trial of the case, PWs 1 to 5 were

examined on the plaintiff's side and marked Exts.A1 RSA 562/2021

and A2 documents. DW1 was examined on the

defendants' side and marked Exts.B1 to B15

documents. Exts.C1 to C10 were also marked. The

trial court decreed the suit. Challenging the decree

and judgment, the defendants preferred the First

Appeal. The First Appeal was also dismissed

confirming the judgment and decree of the trial court.

Hence, defendants 1 and 3 are before this Court with

this Second Appeal.

7. Heard the learned counsel for the

appellants, who are defendants 1 and 3, and the

learned Government Pleader for respondents 2 and 3.

8. The learned counsel for the appellants

contended that the decree for permanent prohibitory

injunction has prevented the right of the appellants to

move before the statutory Authorities to get requisite

licence, in accordance with law. According to the

learned counsel for the appellants, burial of dead-

body is a fundamental right of the local worshipers of RSA 562/2021

the Mission. Being a right of the local worshipers,

according to the learned counsel for the appellants, it

is regulated by the Rules. The learned counsel

contended that when an equally and efficacious relief

can be obtained from the statutory Authorities and

Tribunals constituted under the Act, a civil suit for

injunction is barred under Section 41(h) of the

Specific Reliefs Act, 1963. Elaborating on the

submission, the learned counsel for the appellants

further submitted that the authority to take action in

the case of burial ground or cemetery is the District

Collector as per the Rules and the civil court has no

jurisdiction to adjudicate on the issue.

9. The learned Government Pleader appearing

for the respondents 2 and 3 submitted that the

plaintiff and the public, at large, filed a mass petition

before the District Collector to take appropriate action

against the defendants for converting the plaint B

schedule property into a burial ground. Consequently, RSA 562/2021

according to the learned Government Pleader, the

District Collector was pleased to stay conversion of

the plaint B schedule property into the burial ground,

which was communicated to defendants 1 to 3. The

learned Government Pleader further submitted that

the local authority has also issued a stop memo for

further construction of the vault in the plaint B

schedule property.

10. Regarding the title of the defendants over

the plaint B schedule property, there is no dispute.

The defendants fairly conceded that they have

purchased the plaint B schedule property for the

purpose of constructing a cemetery or burial ground

in the plaint B schedule property for which they have

made preparations. Alleging nuisance, the plaintiff

filed the present suit for injunction. During the trial,

Ext.C7 report of the District Geologist was obtained.

The District Geologist clearly stated that the soil

condition in the plaint A and B schedule properties is RSA 562/2021

such that there is every chance of the well in the

plaint A schedule property being contaminated, in

case the plaint B schedule property is used as a burial

ground. Admittedly, no permission from the statutory

authorities was obtained to convert the plaint B

schedule property into a burial ground, in accordance

with the Rules. The plaintiff alleges nuisance against

the defendants 1 to 3. Such a suit is maintainable

even without the aid of Section 91 of the Code of Civil

Procedure (CPC). An infringement of civil right can be

questioned by the plaintiff before the civil court. It is

invariably not necessary to seek appropriate remedies

before the statutory authorities constituted under the

Panchayat Raj Act to redress the grievance of the

plaintiff. The suit for injunction simplicitor is

maintainable before a civil court even without the aid

of Section 91 of the CPC.

11. The defendants have no manner of right to

use the plaint B schedule property as a burial ground RSA 562/2021

without obtaining requisite licence, in accordance

with the Rules. In fact, the District Collector and the

local authorities stayed the illegal action of the

defendants, consequent to the mass petition

submitted by the local residents. The trial court and

the First Appellate Court concurrently held that the

plaintiff is entitled to get an injunction as prayed for.

12. This court can exercise its jurisdiction under

Section 100 of the CPC only on the basis of

substantial questions of law, which are to be framed

at the time of admission of the Second Appeal. The

concurrent findings of facts will not be disturbed by

this Court, unless the finding of the two courts below

are palpably perverse.

13. Reverting to the facts of the case in hand, it

is clear that the plaintiff has been residing in the

plaint A schedule property along with her two female

children. The defendants have purchased the

property for the purpose of constructing a burial RSA 562/2021

ground. Of course, they have the right to construct a

burial ground in the plaint B schedule property,

provided it is sanctioned by law. Otherwise, they

have no right to construct the burial ground, on

technical grounds. No substantial questions of law is

involved in this Second Appeal. Hence, the Second

Appeal is liable to be dismissed.

In the result, this Second Appeal is dismissed

without prejudice to the rights and liberties of the

appellants to obtain requisite licence from the

competent authorities for commencing a burial

ground in the plaint B schedule property, in

accordance with law. There will be no order as to

costs. Pending applications, if any, stand disposed of.

Sd/-

(N.ANIL KUMAR, JUDGE) jg