IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 AS.No. 223 of 2002(C) -------------------------------- OS.612/1993 of ADDL.SUB COURT,KOLLAM .................... APPELLANT(S): DEFENDANTS ------------------------ 1. CHIEF SECRETARY,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. VALSAN P. JOHN,EXECUTIVE ENGINEER, ROAD SECTION,ASRAMAM,KOLLAM. 3. P.C.BASHURUDEEN LEBBA,ASSISTANT EXECUTIVE ENGINEER,ROAD SECTION,ASRAMAM,KOLLAM 4. R.JAYA RAJAN,ASSISTANT ENGINEER, ROADS SECTION,ASRAMAM,BEACH ROAD,KOLLAM. 5. MS.SASIDHARAN PILLAI,II GRADE OVERSEAR, PWD OFFICE,BEACH ROAD,KOLLAM. * 6. G.CHANDRAN BABU,PWD CONTRACTOR, SREE DHANYA HOUSE,NO.IX/875,SASTHAMANGALAM, THIRUVANANTHAPURAM.(TRANSPOSED AS 2ND RESPONDENT) *THE 6TH APPELLANT IS TRANSPOSED AS 2ND RESPONDENT VIDE ORDER DTD. 18.11.2002 ON CMP. NO.6068/2002. BY SR. GOVERNMENT PLEADER P.K.BABU RESPONDENT(S): PLAINTIFF ------------------------ 1. G.CHANDRIKA W/O.KRISHNANKUTTY, AGED 35 YEARS,RESIDING AT REVATHY,MARUTHADY P.O., KOLLAM. 2. G.CHANDRA BABU, PWD CONTRACTOR, SREE DHANYA HOUSE, NO.IX/875, SASTHAMANGALAM, THIRUVANANTHAPURAM. * THE 6TH APPELLANT IS TRANSPOSED AS 2ND RESPONDENT VIDE ORDER DTD.18.11.2002 IN CMP. 6068/02. BY ADV. SRI.K.SUBASH CHANDRA BOSE SRI.K.P.SUJESH KUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.269/2005 IN AS. NO.223/2002 DISMISSED 01/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 223 OF 2002 = = = = = = = = = = = = = = = Dated this the 1st day of June, 2010. J U D G M E N T This appeal is preferred by the defendants against the judgment and decree passed by the Subordinate Judge, Kollam in O.S.612/93. During the pendency of the appeal the 6th appellant has been transposed as 2nd respondent. The suit is one for damages and mandatory injunction. The brief facts necessary for the disposal of the appeal are as follows. 2. The plaintiff along with her children are residing in the plaint schedule property and there was a compound wall on the front portion of her property separating the road from her property. That road was not kept in a good condition and therefore P.W.D. Department decided to repair the road and also in the process requested the inhabitants of the locality to A.S. 223 OF 2002 -2- remover their compound wall so that the work can be done effectively if necessary by increasing the width etc. It has to be stated that the plaintiff did not agree for any demolition of the compound wall but it is submitted by her that defendants 5 and 6 approached her and the plaintiff did not agree for the demolition but they highhandedly did the act of demolition with an undertaking to reconstruct the compound wall after the laying of the road. They did not reconstruct the wall at all and therefore ultimately the plaintiff has moved the suit for damages as well as for mandatory injunction. 3. Defendants on the other hand would contend that they were not responsible for the demolition of the wall and it was the inhabitants of the locality who had removed the wall and when an attempt was made to reconstruct the wall the inhabitants decided to have a drainage through that portion and they prevented them from reconstructing the compound wall and therefore they are not liable for the act. The learned Subordinate A.S. 223 OF 2002 -3- Judge on an analysis of the documentary as well as oral evidence found in favour of the plaintiff. There is admittedly no consent taken from the plaintiff for the demolition of the compound wall. It was really a highhanded action on the part of the authorities to do the same. It was the defendants 5 and 6 who approached the plaintiff and the 6th defendant was the contractor with whom the work was going on. So a plea of ignorance about the demolition cannot be sustained even for a minute. 4. From a lawful owner without any legal authority the Government officials through the aid of the contractor had demolished the structure namely the compound wall, is a highhanded action which requires consideration by the Court. An attempt was made to the effect that though they had intention for reconstruction but on account of the intervention of the local people that they want a drainage through the property where the compound wall is situated, it was not done. It has come A.S. 223 OF 2002 -4- out in evidence that the plaintiff moved a suit and had obtained an injunction against the said act. Therefore it has to be held that without the permission and consent of the owner the compound wall has been demolished. There is a prima facie duty on those persons who had demolished the wall to put it back in its original position to the satisfaction of the plaintiff. The Court below had analysed the entire materials and had arrived at a decision that the plaintiff is entitled for reconstruction of the wall as noted by the Commissioner in Ext.C1 report thereby had granted a decree directing defendants 2 to 6 to reconstruct the demolished original wall. I do not find any mistake committed by the Court below in granting such a decree and I wish and hope that the persons concerned will do the work without any delay so that the injustice done to the plaintiff is undone. Appeal is dismissed accordingly. Sd/-M.N. KRISHNAN, JUDGE. Ul/- // true copy // P.A. to Judge. A.S. 223 OF 2002 -5- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 223 OF 2002 = = = = = = = = = = = J U D G M E N T 1st June, 2010.