IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 SA.No. 762 of 2000(G) --------------------------- AS.279/1991 of II ADDL. DISTRICT COURT, PALAKKAD OS.72/1991 of MUNSIFF COURT, ALATHUR .................... APPELLANT(S):APPELLANTS/DEFENDANTS -------------------------------------------------- 1. K.K.HAMZA, S/O. KUNHAHAMMED, AMBALAKKAT HOUSE, KALLEPULLY, PUTUR AMSOM, PALAKKAD DISTRICT, NOW RESIDING AT PULLAKKAT HOUSE, MANJALUR AMSOM & DESOM, ALATHUR TALUK. 2. NAZAR, S/O. K.K.HAMZA,AMBALAKKAT HOUSE, KALLEPULLY, PUTUR AMSOM, PALAKKAD DISTRICT, NOW RESIDING AT PULLAKKAT HOUSE, MANJALUR AMSOM & DESOM, ALATHUR TALUK. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------- RADHAKRISHNAN, S/O. KARATHIYANI AMMA, KIZHAKKEKUNNATH HOUSE, MANJALOOR AMSOM & DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE ADV. SRI.P.B.KRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------- S.A.No. 762 of 2000 --------------------------------- Dated this the 21st day of June, 2011 JUDGMENT The defendants in O.S.No.72/1991 before the Munsiff's Court, Alathur, who found themselves liabile for damages to a tune of Rs.14,500/-, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff laid the suit on the allegation that the defendants were trying to encroach into their property and cut and remove trees therefrom. Along with the suit, he had moved Interlocutory Application for interim injunction. The plaintiff sent a notice to the defendants asking them to restrain from trespassing into the plaint schedule property or committing any waste therein. In spite of accepting the notice, the defendants are making every effort to commit waste and hence the plaintiff was constrained to file this suit seeking a permanent prohibitory injunction. Since during the pendency of suit trees were cut and removed, plaint was amended claiming damages. 3. The suit was resisted by the defendants by pointing out S.A.No. 762 of 2000 2 that they never cut and removed the trees that stood in the plaint schedule property and they learnt that the trees were cut and removed at the instance of one Rajan Nair who is the power of attorney holder of Indira and that the suit is frivolous, vexatious and false. The defendants therefore, sought a dismissal of the suit with compensatory costs. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 4 and documents marked as Ext.A1 series from the side of the plaintiffs. Defendants had DWs 1 and 2 examined and documents marked as Exts.B1 and B2. Ext.C1 is the commissioner's report. 5. Both the courts below on an appreciation of the evidence found that Rajan Nair had nothing to do with the incident and it was the defendants, who were responsible for the mischief committed in the property, in which the plaintiffs, who had interest and right. Accordingly, the suit was decreed, which is confirmed in appeal. S.A.No. 762 of 2000 3 6. Notice is seen issued on the following substantial questions of law: 1. Have the courts below appreciated the legal implications of the facts and circumstances available in the case and could it come to the legally correct finding on the issues. 2. Are the courts below legally correct in decreeing the suit filed by a co-owner having negligible share in the property as against strangers, when the alleged action was done by a non-party to the suit, at the instance of the other co-owner, having lion share in the property. 3. Are the courts below legally correct in decreeing the suit to realise damages for cutting and removing trees from the plaint schedule property while the courts below have specifically found that, the plaintiff has not prove his title and possession over the plaint property. 4. Whether the courts below are legally correct in decreeing the suit on the basis of alleged cut and removal of trees, while a non-party to the suit admits himself in court as he had done the alleged acts. 5. Are the courts below legally correct in decreeing the suit when there is no evidence to the effect that the appellants are responsible for the alleged cut and removal of trees. 7. The learned counsel appearing for the appellants pointed out that both the courts below have erred in law and on facts in appreciating the evidence as well as in not directing the plaintiff to implead the Rajan Nair, who according to the counsel was a necessary party in the suit. The Rajan Nair, who is allegedly a power of attorney holder for Indira, the other co-owner of the S.A.No. 762 of 2000 4 property, deposes as DW2 that he was managing the plaint schedule property on behalf of Indira and he had sold the trees standing in the property. These vital aspects have been omitted to be noticed by the courts below and that resulted in miscarriage of justice. 8. This court is fully aware of the institution under Section 100 of the C.P.C, but allowed the learned counsel for the appellants to refer to the entire evidence on record since one of the complaint was that there has been misappreciation of the evidence in the case. 9. The commissioner report Ext.C1, dated 23.03.1991 clearly shows that trees were cut and removed from the plaint schedule property. The question is whether it was at the instance of Rajan Nair as contended by the defendants. 10. Both the courts below have found on an appreciation of the evidence that none other than the defendants could have cut and removed the trees. Of course, the defendants had examined Rajan Nair, who says that he had cut and removed the trees. But a reading of the evidence of DWs 1 and 2 shows that S.A.No. 762 of 2000 5 Rajan Nair is speaking utter false hood. He has absolutely no idea about the property at all. It is unnecessary to refer to the evidence of these persons since the same has been done by the courts below and this court does not find sufficient reasons to take a different view. 11. Apart from the inconsistent and contradictory evidence of DWs 1 and 2, there is the evidence of PW4 an independent witness who says that it was on instruction from the first defendant that he had loaded the timber in a tempo and received wages from him. Further, the plaintiff issued a notice to the defendants asking them to refrain from entering into the property and cutting and removing the trees there. It is the admitted fact, the defendants received the notice. No reply was sent. 12. Further, the said Rajan Nair who claims to have executed Ext.B2 on the basis of a power of attorney has chosen to not to produce the power of attorney, which he claims to have been executed by Indira in his favour. In fact, DW1 would say that it was at the instance of Rajan Nair he had sent his S.A.No. 762 of 2000 6 employees to cut and remove the trees. Interestingly enough the Rajan Nair says he did not call upon any one to sent his employees to cut and remove the trees. Thus the anomalies and inconsistencies in the evidence adduced by the defendants clearly reveal that both the defendants were solely responsible for the mischief. The findings of the courts below are neither perverse nor unwarranted by the evidence on record. No substantial question of law arises for consideration in the second appeal. The Second Appeal is without merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE. ln