IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 WP(C).No. 9774 of 2006(L) ----------------------------------- AGAINST THE ORDER DATED 19/01/2006 IN EP. 8 /2002 IN OS.23/1998 of MUNSIFF COURT, PALA .................... PETITIONER: ------------------- REENA, D/O.JOSEPH, KALLEKULANGARA, PAREMAKKAL HOUSE, PALAKKAD DISTRICT. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS: -------------------- THOMAS,S/O.MATHEW, PARAMAKKAL HOUSE, KADANADU KARA, KADANADU VILLAGE, MEENACHIL TALUK. BY ADV. SRI.SHAJI THOMAS PORKKATTIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9774/2006 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER DT. 19.1.06 IN EP. NO.8/02 IN OS. NO.23/98 OF MUNSIFF'S COURT, PALA. /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== W.P.(C) No.9774 OF 2006 ===================== Dated this the 1st day of January 2008 JUDGMENT This writ petition is preferred against the order of the Munsiff's Court, Pala in E.P.No.8/2002 in O.S.No.23 of 1998. The suit was decreed (1) for fixation of boundary, (2) for eviction of the defendant from the building and (3) for permanent prohibitory injunction restraining the defendant from interfering with the peaceful possession of the plaintiff over the plaint schedule property. 2. A perusal of the order would reveal that the southern boundary of the plaint item No.1 property was fixed and the delivery of the building was effected on 9.3.2005. Now the contention of the decree holder is that on 27.10.2004 and on an earlier date, the defendant had trespassed into the plaint schedule property and had cut and removed 3 teak wood trees. By an amendment to the execution petition, it is submitted that on 27.10.2004 one teak wood tree was cut and removed and two weeks' prior to the same, the defendant trespassed into the property and had removed two other teak wood trees and thereby had violated the order of the court. The evidence let WP(C) 9774/2006 -:2:- in support of the said act was that of Pws.1 to 3. PW1 is the plaintiff who was represented by the Power of Attorney Holder and a reading of her deposition would reveal that she had no much idea about the property. In the cross examination, she has categorically stated that “.......................................................................................................................... ...............................................................................” The evidence of PW1 cannot be of any help regarding the cutting of the trees standing in the property. 3.The other independent evidence according to the decree holder available is that of Pws.2 and 3. Even in criminal cases, it is the intrinsic reliability and inherent probability that has to be taken into consideration while analysing the evidence of witnesses. Admittedly both Pws 2 and 3 are in one way or the other connected with the plaintiff's family and at least one of them is working with them. One is staying at Palakkad and the other is staying at Mannarkad. The incident takes place in Pala and these two witnesses submitted that they have witnessed the incident of cutting the tree on 27.10.2004. The court below had read the evidence in its entirety and found that the witnesses appeared to be interested witnesses and they have supported the case of the plaintiff and on an overall reading according to the court below would show that they are not dependable witnesses. The court WP(C) 9774/2006 -:3:- below had opportunity to see the witnesses, their demeanour and on a consideration of these materials arrived at a decision. Neither the appellate court nor the revisional court will have the advantage of seeing the witnesses and unless it is palpably incorrect it may not be right on the part of the revisional court to hold that the analysis of the evidence of the trial court is erroneous. The evidence of Pws.2 and 3 appears only a tutored one and therefore it may not be correct on the part of this Court to undo the appreciation done by the court below to arrive at a different conclusion. It has also to be stated that if an act of cutting of trees is done by the defendant in October, 2004 one will not wait till 2005 for the issuance of a Commission. Secondly, the witnesses who are attached to the plaintiff and who are alleged to have seen the act of cutting trees, certainly they should have reported the same to the owner immediately after they have witnessed the same. This shows that the evidence of Pws 2 and 3 cannot be relied upon . There are innumerable number of houses in and around the property and not even a solitary witness is examined to prove the alleged act of cutting. There is no case for the plaintiff that all the witnesses in the neighbourhood are in hostile terms with her. Therefore, on analysis of the entire materials I hold that the court below had arrived at a correct finding and it is not vitiated by any WP(C) 9774/2006 -:4:- irregularity, illegality or perversity which calls for interference by this Court. Therefore, the writ petition lacks merit and the same is dismissed. M.N.KRISHNAN, JUDGE Cdp/-