IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 AS.No. 697 of 2001(B) --------------------- OS.193/1995 of SUB COURT,NEYYATTINKARA .................... APPELLANTS/DEFENDANTS ---------------------------------------- 1. STATE OF KERALA, REP BY THE DISTRICT COLLECTOR THIRUVANANTHAPURAM 2. THE TAHSILDAR, TALUK OFFICE, NEYYATTINKARA 3. THE ASST.EXE. ENGINEER NH SUB DIVISION, THIRUVANANTHAPURAM 4. THE ASST.ENGINEER, NH 47 SECTION, NEYYATTINKARA BY GOVERNMENT PLEADER MR.P K RAVIKRISHNAN RESPONDENT/PLAINTIFF ----------------------------------- VIJAYAKUMAR, SON OF KRISHNA PILLAI RESIDING AT THEKKETHIL VEEDU VENGANOOR STREET, PALLICHAL VILLAGE ALSO HAVING MAKAM AYANIMOODU NEYYATTINKARA TALUK ADV. SRI.L.MOHANAN SRI.D.SAJEEV SMT.LIGEY ANTONY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01.09.2011, THE COURT ON 01/09/2011 DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.697 of 2001 ------------------------------------- Dated this the 1st day of September 2011 Judgment Aggrieved by the judgment and decree in OS No.193/95 before the Sub Court, Neyyattinkara, the defendants have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff laid the suit complaining of illegal demolition of a compound wall by the defendants in respect of a property which he claims to have obtained as per Ext.A1 will. According to the plaintiff, the defendants have trespassed into a portion of the property belonging to him and put up a new retaining wall, interfering with his rights over the suit property. He also complained of certain illegal constructions made by the respondents trespassing into his property. He therefore, laid the suit for damages and for other reliefs. AS 697/01 2 3. The defendants resisted the suit. They pointed out that the plaintiff had illegally trespassed into an NH puramboke land and put up a construction there. He was served with a notice and he himself had demolished the compound wall. They denied the allegation of trespass and putting up of compound wall encroaching into the property owned and possessed by the plaintiff. On the above contentions, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised. Evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A8 from the side of the plaintiff. The defendants did not adduce any evidence. Exts.C1 and C2 are the commissioner's report and plan. 5. The trial court, on an appreciation of the evidence, found that the compound wall said to have been demolished and the coconut trees alleged to be cut and removed were standing in the puramboke land, over which the plaintiff had no manner of right. It however, pointed out that the defendants ought to have taken steps in AS 697/01 3 accordance with law and that has not been done. It was found that the plaintiff is entitled to get a sum of Rs.37,064/- as damages from the defendants with 6% future interest. The plaintiff was also granted a decree to the effect that the defendants are liable to remove the granite basement constructed through BL, LM lines marked in Ext.C2 plan and Ext.C2 plan was made part of the decree. It is the said judgment and decree that is assailed in this appeal. 6. In this appeal by the State, strong objection is taken only with reference to the award of damages to the tune of Rs.37,064/- with 6% future interest. The learned Government Pleader also pointed out that having found that the compound wall and the trees cut were in the encroached portion of land, it was improper for the court below to have awarded damages. The learned Government Pleader also took this court through the evidence in the case and pointed out that the plaintiff never had a case that he had seen the defendants demolishing the compound AS 697/01 4 wall. The learned Government Pleader also pointed out that the lower court has failed to appreciate the contention taken by the defendants that in fact, notice was issued to the plaintiff, asking him to demolish the compound wall and he himself had pulled down the wall. At any rate, having found that the plaintiff is a rank trespasser, it was improper on the part of the court below to have awarded damages. 7. Per contra, the learned counsel for the respondent pointed out that even assuming that the portion where the compound wall is located is a trespassed area, the plaintiff had been in possession for a long time and from the level difference between the road adjacent to the property of the plaintiff and the disputed property, it can be seen that the disputed property lies contiguously to the property admittedly owned by the plaintiff. Even assuming that the compound wall and coconut trees are in the trespassed portion, the defendants should have taken steps in accordance with law and they should not have AS 697/01 5 taken law into their hands. Under such circumstances, according to the learned counsel, the lower court was justified in granting damages to the plaintiff. 8. It is difficult to accept the contentions raised by the learned counsel for the respondents. Going by the commissioner's report, it is clear that the compound wall, which is seen demolished was on a road puramboke which admittedly did not belong to the plaintiff. His property was situated south of that area. The lower court has also noticed that when examined as PW1, he had no case that he had seen the defendants demolishing the compound wall. It is significant to notice that the defendants have a definite case that a notice was issued to the plaintiff calling for demolishing the wall and he himself had demolished the compound wall. Of course, the State thought it unnecessary to adduce any evidence in that respect. The trial court, in paragraph 8 of the judgment, has observed as follows : AS 697/01 6 “Hence it is evident that the alleged compound wall constructed by the plaintiff was through the road puramboke on the northern boundary of plaint A schedule property.” 9. After having so found and also that there were no evidence to show that it was the defendants who had pulled down the compound wall, the court below on conjunctures, surmises and on probabilities, came to the conclusion that in all probability, the compound wall must have been pulled down by the defendants. It is on that basis that the damages was awarded. 10. The lower court omitted to note that as the commissioner's report clearly shows that the compound wall and the coconut trees were in the encroached portion, it was absolutely incumbent on the part of the plaintiff to remove the compound wall and he had no right over the coconut trees. The coconut trees admittedly did not belong to him. Under these circumstances, one fails to appreciate the finding of the court below that since the compound wall might have been pulled down by the defendants, the AS 697/01 7 plaintiff is entitled to compensation or damages as the case may be. The court below omitted to note that the compensation/damages have been awarded in respect of the construction made in a trespassed portion over which the plaintiff had no manner of right. By no stretch of imagination, that part of the decree can be sustained in law. Accordingly, that part of the decree awarding compensation to the tune of Rs.37,064/- with 6% future interest, is set aside. Rest of the decree is upheld. No order as to costs. P.Bhavadasan, Judge sta AS 697/01 8