IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 AS.No. 127 of 1996(B) -------------------- OS.263/1991 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT(S): --------------------- KRISHNA PILLAI, THEKKUMKARA KOVOORCHIRA JAYANTHI COLONY, PLOT NO.8, PULLICHIRA, MAYYANAD VILLAGE, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE SRI.JAGADEESH LAKSHMAN SRI.V.PREMCHAND RESPONDENT(S): --------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVT. OF KERALA SECRETARIATE, THIRUVANANTHAPURAM 2. MAYYANADU PANCHAYATH REPRESENTED BY THE EXECUTIVE OFFICER, MAYYANADU PANCHAYATHU KOLLAM. 3. AYYAN GOVINDAN, CHIERAKKARA PUTHEN VEEDU, KOTTIYAM COLONY, KOTTIYAM PO, KOLLAM. 4. KOCHUNKUNJU, KOVOORCHIRA JAYANTHI COLONY, PLOT NO.9, PULLICHIRA, MAYYANADU VILLAGE KOLLAM. GOVERNMENT PLEADE, SRI. T K SAJEEV SRI.B.S.SWATHI KUMAR FOR R4. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON 01/07/2009 DELIVERED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - A.S. NO: 127 OF 1996 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st Day of July, 2009. JUDGMENT This appeal is filed by the plaintiff in O.S. No: 263 of 1991 on the file of Prl. Sub Court, Kollam. Respondents 1 to 4 are the defendants 1 to 4 in that suit. That is a suit for damages. The facts of the case is briefly as follows: 2. The plaintiff and the third defendant are allottees of adjacent plots in the Jayanthi colony allotted by the Mayyanadu Panchayath. The fourth defendant is residing in the third defendant's plot situated to the east of the plaintiff's plot. There is a coconut tree aged more than 50 years standing at the western portion of the plot occupied by the fourth defendant. It was standing dangerously above the plaintiff's house. Tender coconuts and fronds from this tree were falling on the plaintiff's house, breaking the tiles of the house and damaging the roof. Complaints were filed by the plaintiff to A.S. NO: 127 OF 1996 : 2 : the second defendant on many occasions but no effective action was taken by him. On 30.10.1988, at about 3 a.m. a tender coconut fell on the house of the plaintiff which resulted in injury on his left leg, requiring medical treatment. On 31.10.1988, the plaintiff complained to the second defendant who passed a resolution for taking steps to prevent this nuisance but the tree was not cut and removed. The plaintiff filed a complaint before the R.D.O. on 12.12.1988. On 2.1.1989, a tender coconut fell on the tiles of the plaintiff's house, the tiles were broken and the broken pieces fell on the right eye of the plaintiff who sustained serious injury. He was taken to the hospital and was under treatment for several days. The plaintiff spent huge amount for treatment which was continuing. He was not able to work following the accident. It is admitted that if proper action was taken the injury could have been avoided. So suit was filed for damages for Rs.50,000/- , A.S. NO: 127 OF 1996 : 3 : Following are the different heads: Rs.3,800/- towards purchase of medicine, Rs.6,000/- for unliquidated damages for pain and agony, Rs.40,000/- for loss of earnings and Rs.200/- for maintenance and repair of the house. 3. Defendants 3 and 4 remained ex-parte. Defendants 1 and 2 filed written statement contending that the suit was not maintainable, they were unnecessary parties, the petition filed by the plaintiff on 6.6.1988 was closed to the full satisfaction of the plaintiff; regarding the complaint dated 31.8.1988, an enquiry was conducted and notice was issued to the 4th defendant on 11.11.1988 to avoid the apprehended nuisance. Defendants 3 and 4 did not take any steps. So the Executive Officer reported the matter to the R.D.O on 12.12.98 and brought the same to the notice of the plaintiff, the R.D.O. after complying the legal formalities passed an order for cutting and removing the tree with the assistance of the local police. It is A.S. NO: 127 OF 1996 : 4 : not correct to say that the plaintiff filed complaints to the second defendant on many occasions, on the complaint dated 30.10.1988 the second defendant took timely action, the plaintiff had not sustained any serious injury, there was no negligence or willful omission on the part of the defendants 1 and 2. They are not jointly or severely liable to pay damages, the damages claimed were imaginary, the suit was bad for want of proper statutory notice, the plaintiff had no cause of action and not entitled to any reliefs. 4. In the Sub Court, PW1 and PW2 were examined and Ext. A1 to A14 and B1 to B4 were marked. Learned Sub Judge on considering the evidence found that defendants 1 and 2 are not liable to pay compensation to the plaintiff. 5. The suit was decreed against defendants 3 and 4. The plaintiff was allowed to realise a sum of Rs.46,200/- from the defendants 3 and 4 from their assets, since they are the owner and occupier of the land in which the coconut tree was A.S. NO: 127 OF 1996 : 5 : standing and there was negligence on their part to cut and remove the tree even after specific orders from the second defendant. They are also liable to pay cost of suit. Being dissatisfied with the judgment and decree, the plaintiff filed this appeal. 6. Heard the learned counsel for the appellant and learned counsel for the respondents. 7. Learned counsel for the appellant submitted that the lower court seriously erred in not decreeing the suit in its entirety as prayed for in the suit. The learned counsel for the appellant further submitted that learned sub judge should have found that defendants 1 and 2 are also equally liable along with defendants 3 and 4 for the damages. 8. There is no dispute that the plaintiff is residing in plot No:8 allotted to the wife of plaintiff by the second defendant and plot on the eastern side was allotted to the 3rd defendant and that the 4th defendant is residing in the plot. It A.S. NO: 127 OF 1996 : 6 : is also an admitted fact that disputed coconut tree was standing in the boundary of the plot allotted to the third defendant and was slanding towards the house where the plaintiff was residing. The plaintiff has no case that the disputed coconut tree was standing in the property belonging to the second defendant, Panchayath. PW1 swears that the coconut tree was standing on the property belonging to the 3rd defendant and that now the 4th defendant is residing in the property. PW2 swears that 4th defendant was taking the usufructs from that coconut tree. 9. Ext.B1 is the petition dated 6.6.1988 filed by the plaintiff before the Executive officer of second defendant Panchayath, complaining that the coconut tree standing in the plot of 4th defendant is slanding towards the house of plaintiff and that tender coconuts are falling on the roof of the house causing damage to the roof tiles. The plaintiff requested second defendant Panchayath to take action to cut and remove A.S. NO: 127 OF 1996 : 7 : that coconut tree. In Ext.B1, it is seen that Panchayath Executive officer on the same day issued an order to the over sear to report about the matter within 3 days. The over sear submitted a report stating that only way to abate the nuisance caused to the plaintiff by the disputed coconut trees is to cut and remove the same. Ext. B1 petition was closed on 25.6.88 stating due to the intervention of the Panchayath member the matter was settled. Ext.B2 is another complaint filed by the plaintiff on 31.10.1988 with regard to the same coconut tree. In that complaint, it is mentioned that the Panchayath member intervened in the matter and that the 4th defendant agreed to cut and remove the coconut tree and the coconut tree was tied with wire rope on 3 occasions which were not successful in abating the nuisance. Ext. B3 is the copy of the resolution of 2nd defendant Panchayath dt.31.10.88 authorising the Executive officer to issue notice to the 4th defendant to cut and remove the coconut tree. Ext.B4 is the copy of the notice dt.11.11.88 issued A.S. NO: 127 OF 1996 : 8 : by the Executive Officer of second defendant Panchayath asking the fourth defendant to cut and remove the coconut tree immediately. But the 4th defendant has not complied with that order. The report of the oversear in Ext. B1 will show that the disputed coconut tree was not standing in such a dangerous condition which might fall on the house of the plaintiff at any time. It cannot be said that the second defendant failed to take immediate steps to cut and remove that coconut tree. It is admitted that the disputed coconut tree was cut and removed as per the order of the R.D.O. in 1991. Since there was no much delay in taking the action on the basis of the complaint filed by the plaintiff, the 2nd defendant Panchayath or the first defendant Government cannot be made liable for the damage caused to the plaintiff. Therefore, the learned Sub Judge is perfectly justified in absolving defendants 1 and 2 from paying compensation to the plaintiff. Defendants 3 and 4 have not filed any appeal against the decree passed against them. A.S. NO: 127 OF 1996 : 9 : Therefore no interference is called for with regard to the decree passed against them. Hence, I find that this appeal is without any merit and is liable to be dismissed. Accordingly this appeal is dismissed. The judgment and decree in O.S. 263/1991 on the file of Principal Sub Court, Kollam is confirmed. The parties are directed to suffer their respective costs in this appeal. M. L. JOSEPH FRANCIS, JUDGE. dl/