IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 SA.No. 634 of 2000(A) --------------------- AS.1/1994 of PRL.SUB COURT,IRINJALAKUDA OS.457/1992 of PRL.M.C.,IRINJALAKUDA .................... APPELLANT(S)/APPELLANTS 1, 2, 4 & 5/LEGAL HEIRS OF LATE DEFENDANT NO.1.: --------------------------------------------------------------------------------------- 1. BABY, W/O. MAROTTIKKAL ANTONY, KALLUR VILLAGE AND DESOM, MUKUNDAPURAM TALUK. 2. TINY, D/O. MAROTTIKKAL ANTONY, KALLUR VILLAGE AND DESOM, MUKUNDAPURAM TALUM. 3. INNSE, S/O. MAROTTIKKAL ANTONY, KALLUR VILLAGE AND DESOM, MUKUNDAPURAM TALUK. 4. STEENA, MINOR D/O. MAROTTIKKAL ANTONY, KALLUR VILLAGE AND DESOM, MUKUNDAPURAM TALUK, REPRESENTED BY MOTHER AND NATURALGUARDIAN 1ST APPELLANT. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S)/RESPONDENT & 3RD APPELLANT/PLAINTIFF & L.RS. OF D1: ---------------------------------------------------------------------------------------------- 1. ANTONY, S/O. THALIYAPARAMBIL KOCHAPPU, KALLUR VILLAGE AND DESOM, MUKUNDAPURAM TALUK. 2. MINI, D/O. MAROTTIKKAL ANTONY, KALLUR VILLAGE AND DESOM, MUKUNDAPURAM TALUK. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 634 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2011. JUDGMENT The legal heirs of the first defendant are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for abatement of nuisance. According to the plaintiff, certain coconut trees standing in the property of the defendants are standing in such a way as it cause hindrance to the cultivation of the plaintiff. The dispute relates to eight coconut trees. The plaintiff prayed for a decree to cut and remove the trees. 3. The defendants resisted the suit by pointing out that the complaint made by the plaintiff is not true and no nuisance is caused by the trees standing in the property of the defendants as they are far away from plaint A schedule property. S.A.634/2000. 2 4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The first defendant examined himself as D.W.1. Exts.C1 and C2 are commission report and plan. 5. On an appreciation of the evidence in the case, the trial court found that nuisance is in fact caused by the coconut trees standing in the property of the defendants and the grievance of the plaintiff is genuine. Accordingly, a decree was passed directing the defendants to cut and remove coconut palm Nos.4 and 6 of Ext.C2 plan and they are further directed to tether coconut palm Nos.1, 2, 3, 5, 7 and 8 of Ext.C2 plan with wire in such a way so as to abate the nuisance. 6. Aggrieved by the judgment and decree of the trial court, the legal heirs of the first defendant carried the matter in appeal as A.S. 1 of 1994 before the Sub court, Irinjalakuda. The lower appellate court on an independent S.A.634/2000. 3 evaluation of the evidence came to an identical conclusion as that of the trial court. That brings the legal heirs of the first defendant before this court. 8. Learned counsel appearing for the appellants pointed out that the burden is cast on the defendants to show that the coconut trees do not cause nuisance to the cultivation of the plaintiff. It is also pointed out that it was for the plaintiff to show that the nuisance was caused as a result of the trees standing in the property of the defendants. Learned counsel also contended that in the absence of any evidence to that effect, the courts below ought to have dismissed the suit. 9. There is no merit in the above contention at all. Both the courts below have elaborately considered the evidence on record and had come to the conclusion that two of the trees are positioned in such a way that they will have to be cut and removed and other trees are only to be tethered. Both the courts below accepted the evidence furnished by the plaintiff and they came to an identical S.A.634/2000. 4 conclusion that those trees do cause nuisance and affect the cultivation in the property of the plaintiff. The commission report is self speaking in this regard. It is accepting the commission report and the evidence of P.W.1 that the courts below came to the conclusion that the trees standing in the property of the defendants are causing nuisance to the plaintiff. The findings of the courts below are essentially findings of facts based on evidence. There is nothing to show that the said findings are either perverse or unwarranted by the evidence on record. No substantial question of law arises for consideration in this second appeal. The result is that this second appeal is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.