IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 RSA.No. 1259 of 2009() ---------------------- AS.12/2002 of SUB COURT, OTTAPPALAM OS.152/1999 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANTS/RESPONDENTS IN A.S/DEFENDANTS IN O.S: --------------------------------------- 1. CHALIYIL KRISHNANKUTTY, S/o. RAMAN NAIR RESIDING AT ALANGAD AMSOM DESOM IN OTTAPPALAM TALUK 2. CHURITHODY KUTTIKRISHNAN S/o. THEVARA GUPTHAN, DO – DO 3. MELEPURAKKAL NARAYANAN S/o. NARAYANAN DO – DO 4. CHALLIYIL NARAYANAN KUTTY, S/o. NARAYANAN NAIR DO – DO 5. MELEPURAKKAL RAMAKRISHNAN S/o. RAMAN DO – DO 6. MELEPURAKKAL UNNIKRISHNAN S/o. RAMAN DO – DO 7. KALARIKKAL VIJAYAKESAVAN MASTER S/o. BALAKRISHNJA PANIKKAR DO – DO 8. ARIKKARAPPARAMBIL CHAMI S/o. CHATHY, DO – DO 9. KOZHITHODY SASIKUMAR S/o. RAMANKUTTY EZHUTHUSSAN DO - DO BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT/APPELLANT/PLAINTIFF: --------------- AMMUNNI AMMAL, W/o. KALLITHODI APPU GUPTHAN ALANGAD AMSOM AND DESOM OTTAPPALAM TALUK PALGHAT DISTRICT THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1259 of 2009G --------------------------------------- Dated this 11th day of March, 2010 JUDGMENT Admit. The following substantial questions of law are framed for a decision: (i) Whether the first appellate court is justified in allowing the claim for damages in the absence of any believable or supporting evidence? (ii)Whether the first appellate court is justified in reversing judgment and decree of the trial court in that regard? Respondent was served on notice before admission but there is no response. 2. Respondent instituted the suit against appellants for a decree for prohibitory and mandatory injunction. Her case is that the suit property belongs to her as per Ext.A1, assignment deed No.2063 of 1994, that property has well defined boundaries on all sides with wire fencing on the east, west and north and that appellants who wanted a new road to be opened along with northern side of the suit property trespassed into that property on 04-04-1999 and demolished the fence on the north. Hence the suit for prohibitory and mandatory injunction. During pendancy of the suit plaint was amended to incorporate a prayer for recovery of damages to the tune of Rs.25,000/- alleging that on 26-04-2000 appellants destroyed the boundary and crops in the suit property resulting in loss to the R.S.A.No.1259 of 2009G 2 respondent. According to the appellant Kallarappadi-Panthapalliyal road which vest in the local panchayath was formed in 1998-99 scheme for development, a beneficiary committee was formed and construction work was done by that beneficiary committee. The road was formed using land surrendered by the respective land owners on either side of the road. Respondent surrendered a portion of her property for formation of the road. She removed the fence on the northern side of her property. They denied that they committed any mischief in the suit property. Trial court found in favour of the contention of appellants, observed that formation of road in all probability was with consent of respondent and evidence regarding the alleged mischief committed by the appellants is not reliable. Accordingly suit was dismissed. Respondent took up the matter in appeal. First appellate court was not inclined to grant relief of prohibitory/mandatory injunction but, acting upon the evidence of PWs.1 and 2 gave a decree for realisation of Rs.1,000/- by way of damages from the appellants. That is under challenge in this second appeal on the substantial questions of law framed above. It is contended by learned counsel that evidence on record would show that the road itself was formed in February 1999 and thereafter, no such activity as pleaded by the respondent was done. He also contended that evidence of PW2 which the first appellate court has placed reliance was found unreliable by the trial court and it is without any R.S.A.No.1259 of 2009G 3 justifiable reason that the said finding of the trial court was reversed by the first appellate court. 3. So far as refusal of decree for prohibitory/mandatory injunction as prayed for by the respondent is concerned it stands concluded as no appeal at the instance of respondent is brought up. Evidence of DWs.2 and 3 along with Exts.X1 to X4 show that construction of the road was entrusted to a beneficiary committee, the committee undertook formation of the road, work was completed by February 1999, and the cheque for the amount due was issued to the Convener of the beneficiary committtee on 31-03-1999. Ext.X1, a copy of complaint dated 04-10-1999 preferred by the respondent before the District Collector and given to DW1, local Sub Inspector also states about formation of the road. Thus, it is clear from the evidence that road was formed by February 1999. 4. Now coming to the question whether first appellate court was justified in granting a decree for recovery of damages it is seen that the finding is based on the evidence of PWs.1 and 2. PW1 is the husband of respondent. PW2 claimed that while coming along the place on 26-04-2000 he saw appellants cutting and removing the crops in the suit property. According to PW2 appellants alone were involved in the alleged incident. PW1, husband of respondent would say that on 26-04-2000 appellants trespassed into the northern portion of the suit property, demolished the fence and destroyed the crops. R.S.A.No.1259 of 2009G 4 5. According to the appellants and as per the version of DWs.2 and 3 who represented the local authority during the relevant time the road was formed by the beneficiary committee. Ext.B1 and the evidence of DW3 would show that eldest son of the respondent had taken part in the meeting in which the beneficiary committee was formed. He was also a member of that committee. In fact Ext.X1 which is admitted by the respondent states that she also had agreed for formation of the road. PW1 in cross examination stated that respondent had surrendered a portion of the property belonging to her for formation of the road but, it was in relation to another plot belonging to the respondent situated 3 or 4 paddy fields away from the suit property. DW2 also stated so initially but in his further evidence he clarified that northern portion of the suit property was surrendered by the respondent for formation of the road. Courts below while disallowing the prayer for prohibitory/mandatory injunction observed that possibility of respondent also surrendering a portion of the suit property cannot be ruled out in view of the admitted presence of eldest son of respondent also in the beneficiary committee which supervised formation of the road. 6. Now the allegation is that on 26-04-2000 appellants trespassed into the suit property and committed mischief. Exts.C1 shows that the Advocate Commissioner inspected the properties on 09- 04-1999, ie. before the alleged trespass on 26-04-2000. What was R.S.A.No.1259 of 2009G 5 then represented to the Advocate Commissioner by the respondent was that there was a trespass into the northern portion of the suit property. That certainly cannot be in respect of the alleged trespass on 26-04-2000. Exts.C2 shows that Advocate Commissioner inspected the property again on 04-06-2000 (ie. after the alleged trespass on 26- 04-2000), Commissioner has stated that the disputed road as well as property of respondent are comprised in the same survey number and hence Taluk Surveyor told him that it was not possible to fix northern boundary of the suit property. Respondent told the Commissioner that at the time of alleged trespass (on 26-04-2000) crops in the suit property were destroyed but, Exts.C2 and C2(a) are not anyway useful to decide whether there was any such trespass on 26-04-2000. Therefore what remained is only the evidence of PWs.1 and 2. So far as PW2 is concerned it has come in evidence that he is involved in a criminal case in which PW1 is his witness and that in another criminal case involving PW1, himself is the surety of PW1. Thus, intimacy between PW.2 is writ large Trial court disbelieved the evidence of PWs.1 and 2 for the said reason but first appellate court thought that the same is not sufficient to disbelieve his version as to the alleged involvement of appellants in the alleged trespass on 26-04-2000. As DW4, appellant No.1 has given evidence about the formation of the road by the beneficiary committee in February, 1999 and denied involvement of any of the appellants in the alleged incident on 26-04- R.S.A.No.1259 of 2009G 6 2000 case of respondent rest solely on the oral evidence of PWs.1 and 2. The rule of practice which has almost the force of law is that a first appellate court does not normally reverse a finding of fact entered by the trial court and which rest upon a proper appreciation of the oral evidence. If there is conflicting oral evidence on an issue and the decision hinges upon the credibility of witnesses, then, unless there is some special feature about the evidence of a witness which has escaped notice of the trial court or there is sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with finding of the trial court on questions of fact. Appellate court has also to bear in mind that it had no opportunity or advantage the trial court had, in having the witnesses before it and watching their demeanour etc,. In the present case there is the conflicting oral evidence of PWs.1 and 2 the one side and DW4 on the other side. Trial court was of the view that the evidence of PWs.1 and 2 was not credible. PW2 was disbelieved for cogent reasons. There was nothing in the oral evidence which went unnoticed by the trial court and which would have tilted the decision in favour of the respondent. Hence the first appellate court could not have reversed the decision of the trial court as to the alleged mischief on 26-04-2000 and the involvement of appellants in that incident. On going through the judgments under challenge and records I find that it was without any proper reason that first appellate court has reversed R.S.A.No.1259 of 2009G 7 judgment of the trial court and made appellants liable for payment of damages. There was no reason to upset the appreciation of evidence made by the trial court. That in my view was not permissible. The substantial questions of law framed above are answered accordingly in favour of the appellants. Resultantly the second appeal is allowed. Judgment and decree of the first appellate court to the extent it concerned award of damages to the respondent are set aside and judgment and decree of the trial court in that respect are restored. No cost. THOMAS P JOSEPH, JUDGE Sbna/