The main legal point established in the judgment is the principles of customary right and the burden of proof in establishing such rights over a property.

S. Marimuthu, J.

Plaintiff is the appellant and the defendant by name Krishna Panicker representing the Kuruvanthatta Vattakkunmbad Thiyya Samudaya Sangham is the respondent. The suit was originally filed for an injunction and then it was amended for recovery of the suit property. The suit property lies in R.S No. 32/5. The case of the appellant-plaintiff, in short, would be as follows: the entire property measuring 82 cents in the said survey number originally belonged to the Chirakkal Kovilakom, a royal family, in which there was a partition under Ext. A1 in the year 1956. In the said partition, item No. 9 schedule No. 25 was allotted to the plaintiff-appellant, who is a member of the said family. Out of the 82 cents in that item, for 25 cents, there was a lease in favour of one Saidu Muhammed Koya Thangal, who filed a petition for the purchase of this 25 cents before the Land Tribunal and got the purchase certificate. Out of the balance of 57 cents, a small portion was taken in for the formation of the Panchayath Road. Now the balance, namely, 57 minus the above said portion taken for the road is the suit property for which the suit has been filed. The case of the defendant-respondent would be denying the above contentions of appellant, as follows:

2. From time immemorial, the suit property has been used by their community as the burial ground. Then they have perfected customary right over the suit property. Therefore, the appellant is not entitled to the relief sought for. Before the trial Court, on the plaintiffs side, six documents were marked and on the defendant's side 12 documents were marked. The Commissioner's report and plan marked in O.S.228/80 were also marked in this case as Exts. C1 and C2 (Exts. B1 and B5). The husband of the plaintiff one Rama Varma has given evidence as PW1 and one Muhammed Kunhi Haji has been examined as PW 2. The defendant Krishna Panicker representing the community was examined as DW-1. An Advocate by name Easwaran Nambudiri has been examined as D W-2. The trial court namely, the Subordinate Judge, Payyaanoor in O.S.13 of 1987 examining-the above evidence found that the suit property is being enjoyed as burial ground of the Thiyya community from time immemorial and consequently, it dismissed the suit. Aggrieved by the judgment of the trial court, the plaintiff filed A.S. No. 291 of 1987 before the District Judge, Tellicherry, who on considering the materials on record, dismissed the appeal confirming the judgment and decree of the trial court. As pointed out above, aggrieved by the judgment of both the courts below, now the plaintiff has come forward with the present appeal. The only point that was urged before me for consideration is whether the said property is being enjoyed as burial ground of the Thiyya community from time immemorial so as to perfect customary right. The learned Counsel appearing for the appellant, relying on the principles laid down in the following decisions- reported in Sathyabhamakutty Pisharassiar y. Chinnathan - Master & Ors. (1976 KLT 78); Baba Narayan v. Saboosa (AIR (3) 1943 Privy counsel 111); Chidambara v. Vedayya Thevar (AIR 1967 Madras 164 (V 54 C 47) submitted that customary right must be specifically pleaded and established and their contention that they have been using it from time immemorial is not sufficient to clothe the said right on them and, in short, the respondent failed to prove the customary right though such burden heavily lies on him and in addition to the above principle of law, the learned Counsel appearing for the appellant further submitted that in fact there is no specific plea in the written statement that the respondent community has perfected title over the suit property as their burial ground by customary right and the evidence let in on their side is also not satisfactory. On the other hand, the title of the appellant over the suit property has been admitted by the respondent. In this view of the matter it can be rightly