IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 CRP.No. 339 of 2005 ----------------------------- [AS.NO.10/1999 OF SUB COURT, MANJERI, OS.NO.56/1995 OF MUNSIFF- MAGISTRATE COURT,PERINTHALMANNA] .................... REVISION PETITIONERS/APPELLANTS/DEFENDANTS: ----------------------------------------------------------------------------- 1. MUHAMMED, S/O. AMBATTU ALAVI, RESIDING AT KIZHATTUR AMSOM, DESOM, PERINTALMANNA TALUK. 2. UMMER ALIAS KUNHIPPA, S/O. MOHAMMED, RESIDING AT -DO- -DO-. BY ADVS. SRI.T.SETHUMADHAVAN, SRI.PUSHPARAJAN KODOTH. RESPONDENTS/RESPONDENT/PLAINTIFF: ------------------------------------------------------------- KRISHNANKUTTY, S/O. KOLLAMTHODIYIL ITTIKUTTY, KIZHATTUR AMSOM AND DESOM, PERINTALMANNA TALUK. BY ADV. SRI.K.M.SATHYANATHA MENON. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/06/2010, THE COURT ON 09/06/2010, DELIVERED THE FOLLOWING: C.R.P. NO. 339/2005-E: ORDER ON I.A. NO. 2210/2005 IN C.R.P. NO. 339/2005 DISMISSED 09/06/2010. SD/- P.BHAVADASAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 339 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2010. ORDER The defendants in O.S. 56 of 1995, who suffered a decree for damages and whose appeal was dismissed by the lower appellate court are the revision petitioners. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff laid absolute ownership over plaint schedule property as per Ext.A1 dated 27.2.1978. Ever since the acquisition, he was in absolute possession and enjoyment of the same. When the defendants tried to trespass into the property, he instituted O.S. 140 of 1988 for permanent injunction. That was decreed. Ext.A3 is the judgment and Ext.A4 is the certified copy of the decree in the said suit. On 6.4.1994, it is alleged that contrary to the permanent prohibitory order and violating the same, the defendants and their men destroyed the iron gate and compound wall of the CRP.339/2005. 2 plaintiff. They also cut and removed certain trees standing in his property. Moreover, the plaintiff was threatened by the defendants. Even though a crime was registered, nothing transpired thereafter. Pursuant to the decree in O.S.140 of 1988, the plaintiff filed I.A. 956 of 1994 for putting up a compound wall. When he attempted to do so, he was prevented from putting up the boundary by the defendants and others. Another crime was registered as Crime No. 10 of 1995. According to the plaintiff, due to the acts of the defendants in destroying the compound wall, gate, cutting and removal of the trees etc., he has suffered a loss of Rs.13,060/-. He is entitled to recover the same from the defendants. On the basis of these allegations, the suit was laid. 3. The suit was resisted by the defendants. They disputed the identity of the property scheduled to the plaint. They claimed that they have property on the eastern and southern sides of the plaint schedule property. They denied the allegation that they had violated the judgment and CRP.339/2005. 3 decree in O.S. 140 of 1988 and maintained that they have not committed the acts alleged against them. Pointing out that the plaintiff has no cause of action against the defendants, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 3 and the documents marked as Exts.A1 to A6. The defendants had D.Ws. 1 and 2 examined and Exts.B1 to B3 marked. Ext.C1 is the commission report. On an appreciation of the evidence in the case, the trial court found that the allegations made by the plaintiff have been established and accordingly granted a decree to the plaintiff enabling him to recover a sum of Rs.13,060/- from the defendants. 5. The defendants carried the matter in appeal as A.S. 10 of 1999 before the Sub court, Manjeri. The Sub Court on an evaluation of the evidence in the case concurred with the trial court and confirmed the decree. Hence the revision. CRP.339/2005. 4 6. Learned counsel appearing for the revision petitioner pointed out that the courts below have erred in law in decreeing the suit. The main contention raised was that the identity of the property has not been established and without doing so a decree could not have been granted. The defendants had specifically put the identity of the property in issue and there was no commission taken out to identify the property. Accordingly it is contended that the judgment and decree are liable to be set aside. 7. Learned counsel appearing for the respondent on the other hand pointed out that there is no basis for the above contention at all. The property has been identified in O.A. 140 of 1988, to which the defendants were parties and in which a decree has been passed against them. Ext.A6 is the certified copy of the plan in the said suit. The very same commissioner had inspected the property in the suit also filed Ext.C1 report. Learned counsel pointed out that going by Ext.C1 report it can be seen that the allegations made by the plaintiff are true. In the light of the judgment and CRP.339/2005. 5 decree in O.S. 140 of 1988 the defendants could not have disputed the identity of the property. Accordingly, it is contended that the revision is without merits and the same may be dismissed. 8. Learned counsel appearing for the respondent seems to be well founded in his submissions. The courts below have considered the evidence of the witnesses, ie., P.Ws. 1 to 3 and had come to the conclusion that the allegations in the plaint are true. P.W.1 is the plaintiff himself. The plaint schedule property has an extent of 5.82 acres. It is not disputed that there was an earlier suit as O.S. 140 of 1988 between the same parties, wherein the plaintiff had complained that the defendants had trespassed into his property. The said judgment and decree had become final. The evidence of P.Ws. 1 and 2 clearly show that the gate as well as the compound wall were damaged by the defendants. 9. As pointed out by the learned counsel for the respondent, P.W.3 is the commissioner, who is none other CRP.339/2005. 6 than the person who has filed Ext.C1 in O.S. 140 of 1988. He was able to identify the property in the present case also. The trial court has noticed that the defendants were conspicuously absent at the time of inspection. There is nothing to show that they had any objection to the commission report, ie., Ext.C1. 10. It appears that the main contention of the defendants was that there is considerable difference in the date mentioned in Ext.B1 and plaint with regard to the acts said to have been committed by the defendants. While Ext.B1 showed the date as 6.4.1994, the plaint showed it as 27.2.1994. The trial court has considered this aspect in great detail and has found that the claim made in the plaint cannot be wholly untrue. It is found that there were two acts of vandalism committed by the defendants and one was on 27.2.1994. 11. The trial court considered the issue regarding the identity of the property and found that the contention of the defendants is unsustainable. It was clearly found that CRP.339/2005. 7 the property owned by the plaintiff had been properly identified in O.S. 140 of 1988 and there was no dispute that the property involved in the present suit is the same as the one in O.S. 140 of 1988. If that be so, the judgment and decree in O.S. 140 of 1988 is binding on the defendants. 12. The trial court also found on the basis of the commission report that the compound wall to a length of 28 carpenter koles, the pillars and gate had been damaged and destroyed and also that eight arecanut trees have been cut and removed. The trial court also came to the conclusion that these acts were infact done by the defendants themselves. 13. The appellate court had considered the evidence independently. The appellate court has taken note of the contentions in the written statement and to the extent to which the defendants had gone to deny the claim made by the plaintiff. Even though the defendants disputed the identity of the property, the appellate court also came to the conclusion in the light of Exts.A3 and A4 that the contention CRP.339/2005. 8 cannot be sustained. Before the appellate court also, anomaly in the dates between Ext.B1 and plain was highlighted and the appellate court too has considered the issue in detail. It has come to the conclusion that there were two incidents and in the light of the said fact the anomaly in the dates is easily explained. Based on the evidence P.Ws. 1 to 3 and the commission report, the appellate court came to the conclusion that the acts alleged by the plaintiff have been proved. It has also found that the evidence produced by the defendants too show that the claim made that they have not committed the acts cannot be accepted. When the first defendant was examined as D.W.1 he had admitted that he had no right over the suit property and that is in the exclusive possession and enjoyment of the plaintiff. The evidence of the Commissioner, namely, P.W.3 is clear on the issue, and so also his report. Both the courts below have noticed that there is nothing to show that the quantum of damages assessed by the Commissioner is wrong. In fact no CRP.339/2005. 9 serious objection seems to have been taken against the quantum. 14. The contention based on the identity of the property is therefore without any basis whatsoever. Both the courts below have concurrently found that there is no dispute regarding the identity and that the acts of vandalism infact been committed by the defendants. It is essentially a finding on facts. The courts below have arrived at the conclusion based on the evidence adduced in the case. No jurisdictional error could be pointed out by the revision petitioner with respect to the finding by the court below. This revision is without merits and it is accordingly dismissed. P. BHAVADASAN, JUDGE sb.