IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 AS.No. 259 of 1999(B) --------------------- OS.378/1993 of II ADDL.SUB COURT,THRISSUR .................... APPELLANTS/DEFENDANTS: ------------------- 1. PARAMAN, S/O.EDAKKATH KOCHUNHY, ARIMBOOR, PARAKKAD VILLAGE, THRISSUR. 2. INIKKAL CHANDRASEKHARAN, ARIMBOOD, -DO- -DO- (DIED) 3. VARGHESE, S/O.ACHENGADAN DEVASSY, PARAKKAD DESOM, THRISSUR. 4. KURIAN, S/O.CHERPPUKKARAN KUNHIPPALU, -DO -DO- 5. PRABHA, S/O.CHULLLIPARAMBIL KUMARAN, -DO- -DO- 6. A.P. APPUKKUTTAN, -DO- -DO- ADDL. 7. ASHA SASIKUMAR, W/O.SASIKUMAR, CHITTAPURATH HOUSE, AYYANTHOLE P.O., THRISSUR. '' 8. JYOTHI, W/O. BALAKRISHNAN. M., MOOKONLI HOUSE, POOTHOLE, THRISSUR. '' 9. JAYASREE, W/O.JAYAKUMAR., V. VENGASSERY HOUSE, ERAVIMANGFALAM P.O., THRISSUR. (ADDL. APPELLANTS 7 TO 9 ARE IMPLEADED AS L.RS. OF TH DECEASED 2ND APPELLANT AS PER ORDER IN CMP.1803/03 IN A.S.259/99 DTD. 8/4/O3) BY ADV. SRI.DILIP J. AKKARA RESPONDENT/PLAINTIFF: ------------------- BALAKRISHNAN, S/O.VADAKKEDATH KARAPPAKUTTY, ARIMBOOR DESOM, PARAKKAD VILLAGE, THRISSUR. ADV. SRI.M.R.VENUGOPAL FOR R1 SMT.DHANYA P.ASHOKAN FOR R1 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 10/02/2010. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.1869/99 IN A.S.NO.259/99 ------------------ DISMISSED 10/2/2010 Sd/- HARUN-UL-RASHID, JUDGE. True Copy HARUN-UL-RASHID,JJ. ------------------------------- A.S. NO. 259 OF 2009 ------------------------------- Dated this the 10th day of February, 2010 JUDGMENT Defendants in O.S.No.378/93 on the file of the Sub Court, Thrissur are the appellants. The suit is for mandatory injunction, prohibitory injunction and for damages. The trial court passed a decree restraining the defendants and their men from trespassing into the plaint schedule property and from cutting and removing trees situated in the property and removing timber from the plaint schedule property. The plaintiff is also allowed to realise an amount of Rs.38,000/- jointly from the defendants towards damage with proportionate costs. Aggrieved by the said decree and judgment the defendants have preferred this appeal. The parties hereinafter referred are plaintiff and defendants as arrayed in the suit. 2. In support of the claim for damages and for incidental -2- A.S.No.259/1999 reliefs, Pws.1 to 4 were examined and Exts.A1 to A7 were marked on the side of the plaintiff. On the side of the defendants Dws.1 to 3 were examined and Exts.B1 to B4 were marked. Ext.C1 is the commission report and Ext.C1(a) is the rough sketch. 3. The plaint schedule property admittedly belongs to the plaintiff. He has produced the title deed and tax receipt marked as Exts.A1 and A2. It is also not in dispute that there is a public way passes through the eastern side and proceeds to the northern side of the plaint schedule property. It is the case of the plaintiff that the defendants on 24/3/1993 trespassed into the property, demolished the fence, cut down the valuable trees like teak, sandal, jack fruit tree and mango tree with the help of others. Plaintiff is claiming damage on account of the loss sustained by him due to the criminal acts done by the defendants and their men. The total claim for damage is Rs.50,000/-. Regarding the incident a crime was registered by the police. -3- A.S.No.259/1999 Ext.A4 is the FIR, Ext.A5 is the scene mahazar and Ext.A6 is the charge sheet. Ext.A7 is the judgment of the Judicial First Class Magistrate, Thrissur by which the defendants were convicted. The appeal preferred by the defendants was seen dismissed confirming the order of conviction passed by the learned Magistrate. PW1 is the plaintiff, PW2 is his wife, PW3 is the person, who issued Ext.A3 valuation statement and PW4 is the Commissioner. The court below relied on the evidence tendered by PWs.1 to 4 and also the deposition of the 3rd defendant in the suit. The testimony of DW3 was self-contradictory to the contentions raised in the written statement. DW3 admitted that there was an attempt to widen the pathway lying on the eastern and northern side of the property in the year 1993. He also admitted that a road expansion committee was formed in the locality and the members of that committee were behind the incident. In the light of the evidence tendered by the plaintiff's witnesses and the testimony of DW3, the trial court held that the -4- A.S.No.259/1999 plaintiff's case is more probable and believable. The court below also relied on Ext.A7 judgment passed by the learned Magistrate, by which all the defendants were convicted. Taking into consideration of all these facts, the evidence brought out in the case and the preponderance of probabilities, the finding recorded by the trial court that the defendants were involved in the alleged acts, requires no interference. 4. At the same time, the court below relied on Ext.A3 valuation statement furnished by a friend of PW1, who was examined as PW3, accepted the same and granted a decree for Rs.38,000/-, taking into account the fact that an amount of Rs.12,000/- was already given to the plaintiff by the defendants in the criminal case. It is a fact that one teak tree of twenty years old, one tamarind tree of twenty years old, one neem tree of twenty years old, one jack tree of fifteen years old, one sandal tree of ten years old, three mango trees of thirty years old, one cassia tree of six years old and two coconut trees of two years old -5- A.S.No.259/1999 were cut down by the defendants with the aid of others. Except Ext.A3 list produced by PW3 showing the value of the trees, no other evidence was produced in this case. Taking into consideration all the attendant circumstances, this Court is of the view that plaintiff is entitled to realise a sum of Rs.25,000/-. In the circumstances, the decree and judgment passed by the trial court are modified. In the result, the appeal is partly allowed. The plaintiff is allowed to realise an amount of Rs.25,000/- from the defendants and their assets. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.