IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 SA.No. 678 of 1998(E) --------------------- AS.112/1996 of SUB COURT, KASARAGOD OS.636/1993 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANT/RESPONDENT/DEFENDANT(S): ---------------------------------------------- AMMINI HENGSU, W/O.SHANKARA PATALI, RESIDING AT MADUMATHIMARU IN NETTANIGE VILLAGE, KASARAGOD TALUK AND DISTRICT, POST NETTANIGE, (VIA) MULLERIA. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENT/APPELLANT/PLAINTIFF(S): -------------------------------------------- THEYI AMMA, W/O.PAKEERA PATALI, RESIDING AT MADUMATHIMARU IN NETTANIGE VILLAGE, KASARAGOD TALUK AND DISTRICT, POST NETTANIGE, (VIA) MULLERIA. ADV. SRI.K.G.GOURI SANKAR RAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.1910 OF 1998 IN S.A.NO.678 OF 1998 //DISMISSED// 29.06.2010. SD/- S.S.SATHEESACHANDRAN, JUDGE. /TRUE COPY/ S.S.SATHEESACHANDRAN, J. ------------------------------------------- S.A.No.678 OF 1998 ------------------------------------------- Dated this the 29th day of June, 2010 JUDGMENT 1.The defendant in a suit for damages is the appellant. The respondent, hereinafter referred to as 'plaintiff', filed a suit claiming a sum of Rs.7,500/- as damages towards cutting down and removal of a Bolpale tree from her property which is described as B schedule in the suit. Her case was that when disputes emanated over the cutting down of the tree from her property, mediation was effected by PW2, in which, a consensus was arrived that if the tree cut and removed was found to be in her property, after measurement, the sum that had been collected towards timber of the tree would be paid to her. Survey measurement was carried out with the assistance of the Village Officer, under the supervision of PW2, mediator, and it was found that the stump of the tree was situate in the property of the plaintiff. Still the defendant was not prepared to pay the damages caused to the plaintiff by cutting down the SA.678/98. 2 tree. Resisting the suit claim, the defendant refuted the allegation as to the mediation at the instance of PW2 and also carrying out of measurement of the property. However, she contended that she has got 1 acre 7 cents of property to the south of plaintiff's property and that she had cut and removed a Bolpale tree one year ago. Her case was that the tree was cut down from her property and she is not liable to pay any compensation to the plaintiff. On the materials produced by both sides, the trial court found merit in the contentions taken by the defendant as there was discrepancy in the evidence of PW2, the mediator, with that of PW1 and also for the reason that the report of the Commissioner did not assist the plaintiff in showing that a Bolpale tree was cut from her property. The trial court, therefore, dismissed the suit, against which, the plaintiff preferred an appeal. The appellate court, on re- appreciation of the materials tendered, differed from the conclusions drawn by the trial court and arrived at a finding that the facts proved clearly established that the defendant SA.678/98. 3 had cut and removed a Bolpale tree from B schedule, the property of the plaintiff. In that view of the matter, reversing the dismissal of the suit, a decree was passed in favour of the plaintiff, as prayed for in the suit. Challenge in this appeal is against the decree so granted by the first appellate court. 2.Having regard to the submissions made with reference to the materials produced in the case, I find that a wrong reading of the Commission report and also the evidence of PW2 prompted the trial court to reach the conclusion that the plaintiff had failed to prove her case for damages from the defendant. The report of the Commissioner which was exhibited as C1 clearly spell out that the stump of the cut down tree still remained in B schedule. When the Commissioner visited the property, the defendant did not show the stump of a Bolpale tree or of any other tree cut down in her property situate to the south of B schedule. Particulars of the stump detected in the B schedule property, as described by the Commissioner, would clearly SA.678/98. 4 indicate that there is merit in the case canvassed by the plaintiff that one Bolpale tree was cut down from her property. In the plan prepared by the Commissioner, C2, the stump of the tree is shown as point 'P'. The Commissioner stated in his report that at the place where the stump was detected, some buds of Andipunar tree were seen. On that statement alone, it is seen, the court had taken the conclusion that the stump detected in the B schedule property was not of a Bolpale tree, but of some other tree. In fact, no material was placed before the court, even by the defendant, to show that the stump detected in the property of the plaintiff, B schedule, was not that of a Bolpale tree. Long after the cutting and removal of that tree at the place where the stump stood, buds of some other tree were seen sprouting up in no way lead to a conclusion that the stump found there was of some other tree. Similarly, perusing the evidence of PW2, who was stated to have mediated to bring about a settlement between the parties, it is seen, even the defendant has no case that the SA.678/98. 5 above witness has any ill will or animosity to depose against her. Other than total denial of mediation and that PW2 has some interest in the plaintiff, nothing material was culled out during the examination of PW2 to doubt the intrinsic worth of his testimony before the court. The appellate court has correctly and rightly appreciated the evidence of PW2 which goes a long way in sustaining the case of the plaintiff that a Bolpale tree in her property was cut down by the defendant. 3.So far as the assessment regarding the quantum arrived at towards damages, other than denial of the case of the plaintiff, the defendant had not placed any material to dispute such claim. So much so, no interference with the quantum is also called for in the present case, especially, taking note of the existence of the stump detected in the B schedule property as described by the Commissioner in C2 report. The measurement of the stump would indicate that a tall Bolpale tree valuable at the sum claimed by the plaintiff might have SA.678/98. 6 been cut and removed from that place. That being so, no interference with the quantum is also called for. The appeal lacks merit, and it is dismissed, but, in the circumstances, without any order as to costs. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.30/06.