The 2nd defendant in O.S. No.302/2002 of the Munsiff's Court, Adoor has come up with the Second Appeal by challenging the judgment and decree passed by the Additional District Court, Pathanamthitta in A.S. No. 172/2005.

2. The 2nd defendant is originally styled as Salem Marthoma Church, Chathannoopuzha, represented by its Mooppan Pappan, Nellikunnil veedu, Vayala Muri, Erathu village.

3. Four persons namely, Pappachan Biji, Kutty Amma Pappachan, Ammini Kunjappay and Samuel, filed O.S. No. 302/2002 as a simple suit for injunction seeking the following relief:-

"The defendants or persons claiming under them shall not make use of plaint D, E and F schedule properties for burying the dead or disposal of the dead or to transform it as a burial ground, without obtaining licence from the District Collector under the Kerala Burial and Burning Ground Rules, 1967."

The title of the Rule noted above is patently wrong and the plaintiff might have intended it as 'Kerala Panchayat (Burial and Burning Grounds), Rules 1967' (hereinafter referred to as 1967 Rules').

4. The case of the plaintiffs is that the defendants in the suit are making use of plaint D, E and F schedule properties for the disposal of the dead, without obtaining valid licence from the District Collector under the aforesaid Rules. The suit has been filed after the required notification under Order I Rule 8 CPC. After the filing of the suit, it seems that defendants 1 and 3 have given up their claims with regard to plaint D and F schedule items. The only contesting defendant was the present appellant, whose property is scheduled as plaint E schedule item. According to the 2nd defendant, they purchased plaint E schedule property through Ext.B5 sale deed dated 11.10.1977 for making use of it as a burial ground. It is their further case that even prior to the purchase of the property through Ext.B5, they had been using the said property as a burial ground for burial of the dead, with the permission of the then owners of the property.

5. Initially, the Munsiff's Court, Adoor dismissed the suit and consequently, A.S. No. 172/2005 was preferred by the plaintiffs as appellants. The learned Additional District Judge allowed the appeal by setting aside the judgment and decree of the trial court, and passed a decree restraining the respondents/defendants from burying dead bodies in the plaint D, E and F schedule properties and from converting the said properties as cemetery.

6. The Second Appeal has been admitted on the following substantial questions of law:-

(1) Whether the lower appellate court was justified in concluding that the cemetery of the appellant situated i plaint E schedule property is to be registered as per the provisions of Kerala Panchayat (Burial and Burning Grounds) Rules, 1967?

(2) Whether the lower appellate court was justified in finding that the theory of estoppel by acquiescence is not applicable in this case?

7. Heard Sri. V. Philip Mathews, learned counsel for the appellant, and Sri.Kurian George Kannanthanam, learned Senior Counsel for respondents 1 to 4.

8. According to the learned counsel for the appellant, the suit itself is not maintainable for want of proper notification under Order I Rule 8 CPC and also for want of leave under Section 91(1) CPC. It has also been argued that there is deemed registration of plaint E schedule property as a burial ground, since it was being used as a burial ground even prior to the commencement of 1967 Rules. When deemed registration is there, the appellant can make use of the said property as a burial ground, it is argued. It has been further argued that as per the second proviso to Rule 8 of 1967 Rules, it shall be lawful for the executive authority to permit any burial in private grounds in individual cases in which he is satisfied that such burial is not detrimental to human health or sanitation. Further, according to the learned counsel for the appellant, plaint E schedule property was being used as a burial ground, as