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Judgment
C. L. Pangarkar, J.—This appeal is preferred by the original plaintiff after the application for temporary injunction came to be rejected. The facts giving rise to the appeal, are as follows:
The plaintiff is a registered Company. The defendants are being sued in representative capacity. The plaintiff purchased 16,690 square metres of land bearing Survey No.98-A/5 situated at village Morjim. The plaintiff purchased the said property under the sale deed dated 5.1.2007 from the original owners. The defendant Nos. 1 and 2 wanted the original owners to sell the property to one buyer, who was procured by the defendant Nos. 1 and 2. The original owners of the suit property, did not accede to the request of the defendant Nos. 1 and 2 to sell the property to the buyer procured by them. As a result of this, the defendant Nos. 1 and 2 were annoyed and they gave threat to the plaintiff that they would create trouble at the suit site and obstruct the sale. It is contended that the defendant Nos. 1 and 2 are the influential persons of the locality. The defendant Nos. 2 and 3 instigated the residents of the locality with an intention to create trouble in the suit property. They started making a demand to convert the part of the suit land into a crematorium. This was done with a sole intention that the purchasers should not be able to develop the said property. Somewhere in the month of December, 2004, without the knowledge of the plaintiff, the defendants cremated dead body in the suit property. The plaintiff states that he has purchased that property with an intention to set up a hotel and has invested large money. He is a bonafide purchaser. The Village Panchayat of Morjim has, after inspection, granted permission for construction and N.O.C. has also been obtained from Coastal Regulatory Authority. On 10.03.2007, some unknown persons and representatives of the defendants, entered the suit property and damaged the fencing put up by the plaintiff. Again in the third week of May 2007, the defendants trespassed over the suit property and cremated dead body. The plaintiff submits that the acts of the defendants, are illegal. They should be prevented from entering into the suit property.
The defendants resisted the suit. The defendants deny that they have given threat to the plaintiff. They also deny that they had procured any buyer for the suit property. Their main contention is that the suit property was being used by Bagwado residents as crematorium since time immemorial under a customary right. They submit that they have been cremating dead bodies since time immemorial. They have acquired right to do so and the plaintiff, therefore, has no right to obstruct the cremation of the dead bodies there. It is further contention of the defendants that the suit property was being also used at the time of immersion of the Ganesh idols. They submitted that the application for temporary injunction was, therefore, liable to be rejected.
The learned Judge of the Trial Court, found that the plaintiff had failed to make a prima facie case and on the other hand, the defendants have established that since time immemorial, they have been using the suit site as a crematorium. The learned Judge, therefore, dismissed the application. Being aggrieved by that, this appeal has been preferred.
I have heard the learned Counsel for the appellant and the respondent.
The foremost contention that was raised on behalf of the respondent was that this Court cannot interfere with the discretion used by the Trial Court since there is nothing on record to suggest that the order of the Trial Court, is in any way perverse. The proposition that this Court cannot interfere with the discretion used by the Trial Court, is right. However, if it is found that the discretion has been arbitrary or capaciously used, the Appellate Court certainly has a right to interfere. A decision in AIR 2006(5) SCC 282 was placed before me where same proposition has been laid down.
The plaintiff claims to have purchased the suit property i.e. 16,690 square metres of land bearing Survey No.98-A/5 of village Morjim. It is the contention of the plaintiff that the defendants have unauthorisely cremated dead body in the portion of the suit property. It is specifically alleged that since the original owners did not sell the property to the person named by the defendant Nos. 1 and 2, the defendant Nos. 1 and 2 have instigated other people to claim part of the property as a crematorium. The defendants contend that they have, since time immemorial, been cremating the dead bodies on the suit site as per the existing custom. Thus, the defendants claim a customary right to do so.
The suit property is a private property. This is not disputed. If it is a private property, then, the plaintiff certainly has a right to resist any kind of entry on it unless defendants can show that under some law, they have a right to enter over the suit property. As said earlier, the defendants claim that they have a customary right to cremate the dead there. It is obvious that but for alleged customary right, the defendants have no right whatsoever to enter into the land and cremate the dead body. Now that the defendants claim such customary right, the entire burden of proof rests on the defendants. A right as claimed by the defendants, in fact, falls within the scope of Section 2(b) of Easement Act. It is a customary right and not a customary easement. The defendants claim that since time immemorial they have been using the land as a crematorium and thus, claim the right. When a right is claimed as a customary right, the custom prima faice, needs to be proved. Obviously, at this stage, it would be absolutely impossible to decide whether such custom is proved or not, for that, would be a question to be decided on merit. Therefore, prima facie, it would have to be seen if such right was exercised as a customary right. The defendants no doubt, have placed on record certain affidavits showing that dead bodies were cremated in the land. The plaintiff''s own pleadings also go to show that to the knowledge of the plaintiff two bodies were cremated. The incident that are quoted in the affidavit filed by the defendants, are of the recent past i.e. during last 10 or 15 years. There is no prima facie evidence of the use and exercise of such right since time immemorial. If at all such right was exercised by the defendants since time immemorial an entry in the survey record of that right, ought to be there. It was contended on behalf of the defendants/ respondents that such right to cremate the dead under a custom, is not and need not be noted in the record of rights. Thus, according to the learned Counsel, the Court would not find any such entry in the record of rights and the Court should not take that fact as adverse to the defendants. The submission has no substance. In fact, the very title of the document, is record of rights. It is, therefore, in fact a record of the rights over that land. If the defendants claim customary right to use somebody else''s private property and thereby impose liability on the land, such imposition of a liability must find place in the record of rights. Such kind of entries are taken, is clear from the following documents i.e. the record of rights in respect of other survey numbers. In Exh.A-2 at page No.221, there is a copy of record of right of survey No.39 belonging to Shetgaonkar and Redkar family. In other rights column, it is clearly mentioned that there is a crematorium (Smashan) in the said field. At page No.223, there is another record of right of survey No.65. In the other rights column, following entry is taken :
Damu Vithoba has mortgaged the land long ago. There is a public crematorium in the land on which the people of Bandekarwadi have a right to cremate.
These two documents certainly go to show that where ever any land is used as a crematorium, such an entry is taken in other rights column in the record of rights. Even a right of Bandekar family, is also recorded. This shows that there is such practice to take note in the record of rights. The fact that there is no such entry in other rights column in respect of the suit land, suggests prima facie that it must not have been ever used as a crematorium. Had it been so used, the Talathi of the village would not have failed to take note thereof. The learned Judge of the Trial Court, has observed that the absence of such note in respect of suit land, is insignificant. It is difficult to accept this reasoning of the learned Judge of the Trial Court in the teeth of the what has been stated above. The learned Judge has misinterpreted non-existence of entry in respect of the suit property.
The learned Judge of Lower Court, has relied upon one resolution of Gram Panchayat to hold that there is a customary right since time immemorial. The resolution is as follows:
TRUE COPY OF THE RESOLUTION NO.14 OF THE MEETING HELD ON 16.07.2007
SUB. NO.14. Land for Crematorium
RES. NO.14. Letter from office of the Dy. Collector & S.D.O.Pernem Ref. No.Dy Coll/Per /Misc. 07.1430 regarding land for Crematorium in part of property bearing S.No.98/A/5 of Morjim Village was discussed in the Panchayat Body Meeting. Panchayat Body unanimously passed resolution that property in question being private property Panchayat has agreed to use three alternate site as suggested by the current owner in case of emergency for cremation purpose. The body also agreed and decided to provide surface for public crematorium in Morjim village to a common person to cremate dead bodies and person the religious rights.
The resolution, in no manner, goes to show that any customary right is recognised. On the other hand, it only shows that since the land is a private land, the Panchayat has agreed to use other sites. Simply because the Panchayat agrees to use other land, does not mean that the right of cremation on the suit land, was accepted. Such an inference would be for fetched. The next document referred to by the learned Judge, is the letter by S.D.O. to Collector at page No.242. The letter shows that the S.D.O. had informed the Collector about the dispute of Crematorium and has stated on the basis of report of the Mamlatdar that there is crematorium. The report of the Mamlatdar is at page 239. The report of the Mamlatdar seems to be based on the Talathi''s report. It is not clear as to on what basis the Talathi has given such an information to the Mamlatdar. In fact if Talathi knew that such land has being used since long as a crematorium, nothing prevented him from taking entry in the record of rights to that effect. The fact that he does not take such an entry, suggests that no such right was exercised and what he reported, may not be correct.
The next important aspect that needs consideration, is who would suffer, if no injunction is granted. The dispute relates to Village Morjim. The record of rights Exh.A-2 at page 221 and 223 show that there are two recorded crematorium available in the village. It is, therefore, clear that even if the defendants are prevented from cremating dead body in the suit property, they still have two more places available for cremation. No hardship, therefore, whatsoever, is likely to be caused to the defendants.
Section 94 of the Goa Panchayat Raj Act, reads as follows :
Section 94. Registration of burial and burning grounds. -(1) Every owner or person having the control of any place used at the commencement of this Act, as a public place for burying, burning or otherwise disposing of the dead in a Panchayat area, shall, if such place be not already registered under any law applicable thereto, apply to the Panchayat to have such place registered under this Act.
(2) If it appears to such Panchayat that there is no owner or person having control of such place, the Panchayat shall assume such control, and register such place or may close it.
The defendants though want to use the said land, never applied to register the said place with the Panchayat u/s 94. This also suggests that the said land was not used by them as crematorium as alleged. In fact, after coming into force of the Act, they were bound to get it registered. Subsection 2 of Section 94 of the Act provides for consequences of non-registration. It gives two options to the Panchayat. One is to assume the control of such place or to close it. The Panchayat has taken resolution No.14 referred to above. If this resolution is read, it is clear that the Panchayat has decided to provide another site for cremation. Obviously, it has decided not to use the suit site as a crematorium. It would not, therefore, be in fact proper to allow the dead to be cremated in the suit property. In fact they have two places available for cremation. No inconvenience is likely to be caused to the defendants if they are not allowed to cremate the dead in the suit site particularly when the Panchayat has taken a decision that the cremation should take place at some other place. I have not referred to the affidavits filed by the plaintiff and the defendants. There are affidavits one set saying that dead body was cremated and there are affidavits saying that no dead body was ever cremated. It is, therefore, oath against oath. Therefore, I have not placed any reliance on the affidavits filed by either party. The documents as pointed out and the circumstances as pointed out above, were in fact sufficient to restrain the defendants from making use of the land as a crematorium. The defendants have not shown any existence of customary right in them, prima facie. The learned Judge has completely ignored this aspect and in the circumstances, I am left with no alternative but to set aside the order of the Trial Court and allow the appeal. The appeal is allowed. The order passed by the Trial Court is set aside. The defendants, their servants, agents or any person claiming through them, are prevented from entering over the suit land and cremating the dead body there. The costs of this appeal shall be cost in cause.