JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree of the Additional Subordinate Judge's Court II at Trichy, dated 28.08.2001 in A.S.No.180 of 1999 confirming the judgment and decree of the District Munsif Court, Manaparai, dated, 05.10.1993 in O.S.No.667 of 1982.)

1. The 1st defendant is the appellant.

2. The plaintiffs filed a suit for declaration of title and permanent injunction for an extent of 4.01 acres in R.S.No.785/1. The suit was decreed by the trial Court. The 1st defendant filed A.S.No.180 of 1999 before II Additional Subcourt, Trichy. The learned Subordinate Judge was pleased to dismiss the appeal. Hence, the 1st defendant has preferred the present second appeal.

3. The plaintiffs contended that the suit schedule property is the ancestral property of the plaintiffs and they have partitioned the same under a registered partition deed, dated, 01.05.1969 under Exhibit A.1. The patta passbook has been issued in their favour in patta No.360 under Exhibit A.2. The chitta has been issued in favour of the plaintiffs under Exhibit A.3. The adangal extracts have been filed as Exhibit A.4. The kist receipts have been filed under Exhibits A.5 and A.6. According to the plaintiffs, the defendants are attempting to interfere with the peaceful possession and their enjoyment. Hence, the present suit.

4. The defendants have filed a written statement contending that northern 50 cents of the suit schedule property is a public burial ground for the villagers of Manaparaipatti. To reach the said burial ground, the villagers have to go through the pathway found in Sanga Gounder land and crossing the said burial ground, the defendants have to reach their own land located on the western side of the suit schedule properties. According to the defendants, the northern 50 cents of the plaint schedule property is a public burial ground and the same is also the pathway to reach their own property located on the western side of the suit schedule properties.

5. The defendants have filed an additional written statement contending that they are not disputing the title of the plaintiffs for the suit schedule properties, but they are only making a claim that northern 50 cents is used as a public burial ground for the entire villagers from time immemorial and they have prescribed such right.

6. The trial Court after considering the oral and documentary evidence, came to the conclusion that the plaintiffs have established their title and possession over the suit schedule properties based upon Exhibits A. 1 to A.6. The documents filed on the side of the defendants does not indicate the existence of their public burial ground in suit schedule properties. That apart, a new public burial ground has been established by the Government. The trial Court also found that though the defendants might have been using the plaintiffs’ property for going through the same to reach their land on their western side, the defendants have not established their easementary right over the property of the plaintiffs. Hence, the suit was dismissed by the trial Court.

7. The First Appellate Court after considering the oral and documentary evidence and after independently re-appreciating the evidence, came to the conclusion that the suit schedule property is not a public burial ground. However, no finding was given by the First Appellate Court with regard to the pathway rights alleged by the defendants through the plaintiffs’ properties. As against the same, the present second appeal has been filed by the 1st defendant.

8. This Second Appeal has been admitted on the following substantial questions of law:

(i) When Exhibit B.1-letter from the Revenue Inspector to the Tahsildar clearly established that a part of the suit property is used as public burial ground, whether the Courts below are justified in law in rejecting the same on extraneous grounds?

(ii) Whether Courts below are justified in law in ignoring Exhibits C.1 and