The main legal point established in the judgment is that the right to burial is a civil right that can be enforced through a civil court, and the denial of such right can be established in a civil court. The judgment also emphasizes the need to establish a valid customary right through clear and unambiguous evidence.

P.K. Balasubramanyan, J.

The suit O.S.202 of 1983 was filed by the appellants herein in a representative capacity seeking a declaration of the right of the Periyappurathu family to have their family members alone buried in the eastern first row of the cemetery established and maintained by the first defendant church, a further declaration that the first defendant church is not entitled to permit burial of those who are not members of Periyappurathu family and for a consequential injunction restraining the defendants from permitting or carrying out burial of dead bodies of persons who do not belong to the Periyappurathu family in the plaint schedule property which is shown as 1 cent on the eastern side of the 14 cents which is the cemetery of the first defendant church. In addition to the church, the Bishop who was the head of the denomination was impleaded as defendant No. 2. The kaikars of the first defendant church was also impleaded as defendants 3 and 4. Additional defendants 5 to 7 were subsequently impleaded. The defendants resisted the suit questioning the jurisdiction of the Civil Court to entertain the suit and also disputed the right claimed by the plaintiffs to have the right to exclusively bury their dead in the first row of the cemetery. The trial court held that the court has no jurisdiction to interfere in such a matter and that the plaintiffs have not established any customary right for the exclusive user of the first row of the cemetery for burying the dead in their family. It therefore, dismissed the suit. On appeal by the plaintiffs the lower appellate court also held that the civil court has no jurisdiction to grant a declaration as prayed for by the plaintiffs and that the plaintiffs had failed to establish any customary right enabling them to get a declaratory decree as sought for by them. The lower appellate court therefore, dismissed the appeal. This is challenged by the plaintiffs before me.

2. according to the plaintiffs, the first defendant church was established about 163 years back and the construction of the church building and the establishment of it was at the initiative of the members of the Periyappurathu family of which the plaintiffs are members. The first row of the eastern side of the cemetry of the church had been reserved for the burial of the members of the Periyappurathu family exclusively. This was for the reason that the members of that family had been among the founders of the church and in view of the further fact that they were prominent members of the diocese. The one cent on the eastern side of the cemetery shown as the plaint schedule property had been exclusively set apart for the burial of the members of the Periyappurathu family on receiving a sum of 151 Chakrams (coin of the realm of Travancore State). On 14.11.1982, in a meeting of the congregation of the first defendant church there was a decision to enhance the burial fees from 151 Chakrams to Rs. 151/-. There was a corresponding increase in the burial fees of the other rows also. The practice of reservation of space in the cemetery for burial of the members of particular families is not exclusive or peculiar to the first defendant church. Such reservation is made in almost every other cemetery. Since according to the faith special prayers are to be held on death anniversaries and other auspicious days and it is considered as the duty of every catholic to see the soul of his ancestor rest in peace, the practice of reservation of areas for burial had been resorted to so as to enable the members of the family to offer special prayers at the appropriate location. The members of the Periyappurathu family are thus exclusively entitled to be buried in the first row of the cemetery and the said right is a customary right which had acquired the force of law. On the instigation of certain interested persons who are enemical towards the plaintiffs and their family, the first defendant church is attempting to put an end t