IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 RSA.No. 813 of 2008() --------------------- AS.125/2002 of PRL.SUB COURT,IRINJALAKUDA OS.1769/2000 of PRL.M.C.,IRINJALAKUDA .................... APPELLANTS/RESPONDENTS 1 AND 2/DEFENDANTS ------------------------------------------------------------- 1. GOPI, S/O.KODAYAKKATTIL RAMAKRISHNAN, PULAKKATTUKARA DESOM, NENMENIKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. JAYAN, S/O.KODAYAKKATTIL RAMAKRISHNAN, PULAKKATTUKARA DESOM, NENMENIKKARA VILLAGE, MUKUNDAPURAM TALUK, TRISSUR DISTRICT. BY ADV. SRI.C.HARIKUMAR SRI.ARAVINDA KUMAR BABU T.K. RESPONDENT(S): APPELLANT & RESPONDENTS 3 & 4/PLAINTIFF ------------------------------------------------------ 1. PARAMESWARAN, S/O.SASTHAMADATHIL SEETHARAMA IYER, PULAKKATTUKARA DESOM, NENMENI KKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. EXECUTIVE ENGINEER, IRRIGATION SUB DIVISION, CHEMBUKKAVU, THRISSUR. 3. ASSISTANT ENGINEER, IRRIGATION SUB DIVISION, PEECHI PROJECT SECTION, MANDAMAGALAM. ADV. SRI.T.M.ABDUL LATHEEF FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 813 of 2008 * * * * * * * * * * * * * * * * * * Dated: 8-01-2009 JUDGMENT The two defendants in O.S. No. 1769 of 2000 on the file of the Principal Munsiff's Court, Irinjalakuda are the appellants in this Second Appeal. The said suit was one for realisation of a sum of Rs. 1,00,000/- as damages for the alleged mischief caused by the defendants to the P.V.C. pipeline and irrigation bund installed in the plaint schedule property admeasuring 2.06 acres of land belonging to the plaintiff's brothers who are abroad and cultivated by the plaintiff with their consent. According to the plaintiff, the defendants who are brothers, out of their enmity towards the plaintiff in proceeding against them for excavating sand from their property endangering the lateral support of the plaintiff's property were wrecking vengeance against the plaintiff by damaging the irrigation canal bund, pipeline, areacanut and coconut trees. The plaintiff alleged that the occurrence of damage to the irrigation bund and pipeline took place in the midnight on 28-11-1999. The plaintiff claimed Rs. 75,000/- as expenses for restoring the bund and pipeline , Rs. 5,000/- for destruction of areacanut and coconut trees and Rs. 20,000/- by way R.S.A. No. 813 of 2008 -:2:- of loss of crops. 2. The suit was resisted by the defendants contending inter alia that they were not the persons responsible for the damage sustained by the plaintiffs , that none of the heads of claim was allowable and that the suit was filed without any bonafides or truth. 3. On the side of the plaintiff's three witnesses were examined as P.Ws 1 to 3 and Exts.A1 to A9 series were got marked. On the side of the defendants both the defendants were examined as Dws 1 and 2 and another witness was examined as DW3. 4. The learned Munsiff, after trial, as per judgment dated 24- 6-2002 dismissed the suit holding that the plaintiff had failed to establish the plaint averments satisfactorily. On appeal preferred by the plaintiff, the lower appellate court has reversed the decree passed by the trial court and decreed the suit but only for a sum of Rs. 60,465. Hence, the Second Appeal. 4. The following are the questions of law formulated in the memorandum of Second Appeal:- 1. Whether, on the facts and circumstances of the case, the lower appellate court is justified in considering the oral testimony of Pws 1 and 2 alone for arriving at a conclusion for mischief committed by the defendant ? R.S.A. No. 813 of 2008 -:3:- 2. Whether Exts.P2 and P2 (a) are the receipts issued by the plaintiff himself to P.W.3 after the incident is a document which is admissible in evidence ? Thus whether the court below justified in relying upon the said document ? 3. Whether the lower appellate court is justified in setting aside the decree passed by the trial court without addressing the point raised by the trial court ? 4. Is the lower appellate court is justified in relaxing the burden of proof on the plaintiff to prove actual damage ? 5. Whether the lower appellate court is right in considering the oral testimonies which are contradictory ? 6. Is the lower appellate court justified on conclusion that an F.I.R. and refer report based on the plaintiff's complaint before the Police is not at all relevant in the present suit where there is any independent witness or any other documentary evidence to prove the case ? 7. Whether Ext.A3 bill is an admissible documentary evidence without corroborating the document by way of examining the proprietor of the Estate ? 5. The learned counsel appearing for the appellants re- iterated the contentions of the appellants. He submitted that the lower appellate court was not justified in relying Ext.A9 reply notice to find that the defendants were present at the scene of occurrence in the R.S.A. No. 813 of 2008 -:4:- midnight of 28-11-1999 and presuming that the defendants were the persons responsible for destroying the bund and pipeline. He also submitted that the lower appellate court should not have believed the testimony of P.Ws 1 to 3. 6. I am afraid that I cannot agree with the above submissions. The lower appellate court which was the final court of facts was not only entitled but it was its plain duty to consider the entire evidence. The findings have been rendered after a re-appraisal of an oral and documentary evidence. The appellate court has taken note of the fact that the defendants had an axe to grind against the plaintiff since the plaintiff had preferred a complaint before the R.D.O. against the defendants for excavating soil to the detriment of the lateral support of the plaintiff's property and had also filed a suit for injunction. The lower appellate court has found that the trial court was not justified in blaming the plaintiff for not taking out a commission since the damaged bund and pipeline were repaired by the plaintiff spending money soon after the occurrence and, therefore, even if a commission were to be taken out the commissioner would not be able to assess the extent of the damage sustained by the plaintiff. The lower appellate court has relied on Ext.A9 reply notice on behalf of the defendants . It has been stated in Ext.A9 that it was R.S.A. No. 813 of 2008 -:5:- the plaintiff who caused mischief to his own bund and pipeline. In Ext.A7 lawyer notice, the plaintiff had alleged that the defendants had caused the destruction during the dead of the night on 28-11-1999. The defendants have no property in the vicinity of the plaint schedule property. If so, they had no business to be in the vicinity of the plaint schedule property so as to witness the alleged occurrence. The lower appellate court has, therefore, found that by admitting their presence in the vicinity of the scene of occurrence at an odd hour of the night, the defendants have virtually admitted the plaintiff's case. As against the claim of Rs. 1,00,000/-, the lower appellate court has awarded only Rs. 60,465/- of which Rs. 30,000/- was the amount paid by the plaintiff to P.W.3 a worker for restoring the bund as evidenced by Exts. A2 and A3 receipts and Rs. 30,465 was the amount expended by the plaintiff for purchase of P.V.C. pipes and other equipments for replacing the damaged pipes and other fittings as evidence by Ext.A3 bill. The findings recorded by the lower appellate court are pure findings of fact after a careful re-appraisal of the oral and documentary evidence in the case. In the absence of any infirmity in the evidence appreciated by the lower appellate court, this Court sitting in its rarefied jurisdiction under Sec. 100 C.P.C. will not be justified in interfering with the same. R.S.A. No. 813 of 2008 -:6:- 7. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The substantial questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. The appellants are given 45 days' time to deposit the decree amount after deducting the amount, if any, already deposited. Dated this the 8th day of January 2009. V. RAMKUMAR, (JUDGE) ani.