P.B. Suresh Kumar, J.

Defendants 1 to 3 and 5 to 8 in a suit for declaration of title and recovery of possession are the appellants. Respondents 1 and 2 instituted the suit initially before the Munsiff Court, Payyoli, as OS No. 92 of 1976, seeking a decree of permanent prohibitory injunction restraining the first defendant from trespassing into plaint A schedule property. The suit was instituted in a representative capacity, representing the members of the Muslim community offering worship at Mukapoor Mosque situated adjacent to plaint A schedule property. The suit was dismissed by the Trial Court and the decision of the Trial Court was confirmed by the District Court, Kozhikode in AS No. 118 of 1978. The plaintiffs have taken up the matter before this Court in SA No. 820 of 1982 and this Court remitted the suit to the Trial Court for fresh disposal with a direction to afford the plaintiffs an opportunity to amend the plaint. Thereupon, the plaint was amended and a prayer for declaration of the title of plaint A schedule property and a prayer for recovery of possession of plaint B schedule property on the strength of the title were incorporated. Additional pleadings were also incorporated in the plaint. In the additional pleadings, it was stated that the defendants have trespassed into plaint B schedule property, which is a portion of plaint A schedule property. As the valuation of the suit exceeded the pecuniary jurisdiction of the Court after the amendment of the plaint, the suit was re-presented before the Sub Court, Koyilandy and renumbered as OS No. 66 of 1992. In the meanwhile additional plaintiffs 3 and 4 have come on record and additional defendants 2 to 16 were impleaded.

2. The essence of the case of the plaintiffs as pleaded in the plaint is that the plaintiffs are Muslims offering worship at Mukapoor Mosque, near plaint A schedule property; that plaint A schedule property which is being used for the last more than 300 years for burying dead bodies of those who are offering worship at Mukapoor Mosque is a property given to the Mosque by way of grant by the then British Government and that the first defendant who has no right whatsoever in the property has trespassed into a portion of the said property.

3. The essence of the contentions of the defendants is that the plaint schedule property belonged to Avinhattidam tharawad; that the said tharawad granted a lease in respect of the property on 23/09/1923 in favour of one Madayi Mathu Amma and on her death, the property devolved on her children including one Anandan Nair. The remaining children of Madayi Mathu Amma assigned their rights over plaint A schedule property to one Kannan Nair and the right of Anandan Nair over the property devolved on one Narayanan Nair. On the death of Kannan Nair, his rights devolved on his wife and children and the properties are now held jointly by them and Narayanan Nair. The averments in the plaint that plaint A schedule property is being used from time immemorial as a burial ground by the members of the Muslim community near the property was specifically denied by the defendants in their written statement.

4. The evidence in the case consists of the oral testimonies of PW 1 to PW 6 and Exts. A1 to A19 documents on the side of the plaintiffs and the oral testimony of D.W. 1 and Exts. B1 to B23 documents on the side of the defendants. The reports submitted by the Commissioners appointed in the suit were marked as Exts. C1 to C3.

5. The Trial Court found that though plaint A schedule property does not have conspicuous indications of a burial ground, the same can only be regarded as part of the burial ground attached to the Mosque. The Trial Court also held that the materials on record do not indicate that the defendants have established title to plaint A schedule property as claimed by them. Consequently, the Trial Court decreed the suit, declaring the title of the plaintiffs over plaint A schedule property and permitted the plainti