IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 CRP.No. 960 of 2007() --------------------- AS.26/1999 of ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA OS.162/1996 of SUB COURT, PATHANAMTHITTA .................... REVISION PETITIONER(S): 2ND APPELLANT/2ND DEFENDANT: -------------------------------------------------------------------------------------------- JOSEPH GEORGE, VADAKKEDATH HOUSE, KALLELI, ARUVAPULAM MURI, KOZHENCHERRY TALUK – 689 641. BY ADV.MR.B.KRISHNA MANI RESPONDENT(S): 1ST RESPONDENT:APPELLANTS 1,3 TO 8: PLAINTIFF/DEFENDANTS.1,3 TO 8: ------------------------------------------------------------------------------- 1. K. JOHN, MAMMOOTTIL ESTATE, OOTTUPARA, ARUVAPPULAM VILLAGE, KONNI. 2. P.M. BABY, PARLIE VADAKKETHIL, ARUVAPPULAM MURI, ARUVAPPULAM VILLAGE. 3. RAJAN, ONTHAYATHU MURUPPEL HOUSE, ARUVAPPULAM MURI, ARUVAPPULAM VILLAGE. 4. P.T. PONNACHAN, -DO- -DO-. 5. P.T. APPU OF -DO- -DO-. 6. RAJU ALIAS CHELLY, MICHABHOOMI, OTTUPARA, ARUVAPPULAM MURI, ARUVAPPULAM VILLAGE – 689 691. 7. THULASI OF -DO- -DO-. 8. SHANMUGHAM OF -DO-- DO-. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.960 OF 2007 -------------------------- Dated this the 24th day of July 2009 ------------------------------------- O R D E R The revision is directed against the judgment dated 12/04/2007 in A.S 26/1999 passed by the Additional District Judge, Pathanamthitta. The first respondent as plaintiff filed a suit for damages against the revision petitioners and respondents 2 to 8 before the Munsiff Court, Pathanamthitta which was later transferred to the Sub Court, Pathanamthitta and jointly tried along with another suit O.S 290/1994 pending before that court. O.S 290/1994 was filed by four persons, as plaintiffs seeking a declaration of right of easement and injunction in respect of a way allegedly through the property of the first respondent. That suit jointly tried with O.S C.R.P.No.960 OF 2009 Page numbers 162/1996 was dismissed from which an appeal was preferred by the plaintiffs therein, which too was dismissed for default as could be seen from the impugned judgment in the revision passed by the lower appellate court. Suit filed by the first respondent as O.S 162/1996 was decreed, but the damages awarded was much less than the plaint claim. The trial court awarded 1/3rd of the amount assessed by the advocate commissioner, who after conducting inspection of the property, took note of the damages to the boundary wall, the trees cut and removed etc., and filed a report assessing the total amount of loss at Rs.2,425/-. The learned Munsiff after trial awarded 1/3rd of that amount only ie, Rs.808/- after entering a finding that the defendants in the suit, the present revision petitioner and respondents 2 to 8, were culpable as alleged for causing damages to the plaintiff / first respondent. Against the decree so passed, the defendants preferred an appeal A.S 26/1999 C.R.P.No.960 OF 2009 Page numbers before the District Court, Pathanamthitta, and to the extent the first respondent was aggrieved by the denial of the quantum compensation by the trial court, he preferred cross objections in that appeal. The learned District Judge after hearing both sides dismissed the appeal but allowed the cross objections in part awarding the sum assessed by the commissioner in his report as damages modifying the decree passed by the trial court. Propriety and correctness of the judgment so rendered by the learned District Judge is challenged by one among the defendants, the second defendant in this revision. 2. First respondent has appeared in person before this court in response to the notice given. I heard the counsel for the appellant and also the first respondent in person. The learned counsel for the revision petitioner launched a two fold attack to assail the judgment of the court C.R.P.No.960 OF 2009 Page numbers below contending that the trial court went wrong in awarding damages on the basis of the report of the commissioner which, according to the counsel, as evident from the judgment rendered by the learned Munsiff, was prepared by the commissioner only on the information supplied by the plaintiff. The appellate court interfered with the quantum of damages awarded by the trial court without examining the materials produced and the assessment of the damages as fixed by the appellate court was arbitrary and unreasonable, according to the learned counsel. The second line of attack was that there was total paucity evidence in the case to hold that the damages to the property of the first respondent was committed by the defendants in the suit. The first respondent who appeared in person adverting to the facts and circumstances involved submitted that he had to face continuous litigations and harassment to protect his property from the interference of the revision petitioner / C.R.P.No.960 OF 2009 Page numbers second defendant in the suit. It is submitted that there is no merit in the revision, and the judgment rendered by the court below deserve only to be upheld. 3. Having regard to the submissions made by the learned counsel for the petitioner and also the first respondent in person with reference to the facts and circumstances presented and also the judgment impugned in the revision, first and foremost it has to be pointed out that the scope of the revision being limited the concurrent finding on fact entered by the two inferior courts that the defendants committed damages to the property of the first respondent in destroying the boundary wall and also cutting down of trees in his property no longer can be assailed before this court. Then, the question is whether the trial court or the appellate court is awarding damages, which are wholly attributed to the acts committed by the C.R.P.No.960 OF 2009 Page numbers defendants, committed any jurisdictional infirmity arise for consideration. In that context it has to be taken note of that except the second defendant, the other defendants / respondents 2 to 8 in the revision have no further challenge against the decree. Of course that will not debar the second defendant / revision petitioner in canvassing the challenges in common against the judgment rendered by the lower appellate court as he can file an appeal to get the decree reversed in favour of all the defendants,as covered by Order 41 Rule 4 of Code of Civil Procedure. Perusing the judgment rendered by the learned Munsiff it is evident that after entering a finding that the damages had been caused by the defendants and accepting the commission report in toto negativing the objections raised by the defendants,a decree was passed reducing the damages to 1/3rd of the sum assessed by the commissioner. That was a material irregularity which was corrected by the lower appellate court C.R.P.No.960 OF 2009 Page numbers after reappreciating the evidence in appeal. What has been done by the lower appellate court in awarding the damages as assessed by the commissioner, after examining the materials produced in the case, was proper, valid and correct. There is no jurisdictional infirmity in the judgment rendered by the lower appellate court. 4. The revision is devoid of any merit, and it is dismissed, directing both sides to suffer their cost. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv