IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 SA.No. 817 of 1996(E) --------------------- AS.4/1992 of I ADDL.SUB COURT, KOZHIKODE OS.456/1987 of ADDL.M.C., KOZHIKODE-I .................... APPELLANT/RESPONDENT/DEFENDANT: MEETHALA NELLIVEETTIL SARADA, AGED 64, W/O RARUKUTTY, RESIDING AT PALATH AMSOM, IRUVALLOOR DESOM OF KOZHIKODE TALUK. BY ADV.SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS/APPELLANTS/PLAINTIFFS: 1. NELLIVEETTIL THAMASIKKUM POYIL KUTTOOLI, AGED 66, W/O PACHUKUTTY, RESIDING AT NELLIVEETTIL PARAMBA, P.O.IRUVELLOOR, (VIA) CHELANOOR, KOZHIKODE. 2. SAVITHRI, AGED 40, D/O DO. DO. DO. 3. PRABHAKARAN, AGED 38, S/O DO. DO. DO. 4. SADANANDAN, AGED 36, DO. DO. DO. BY ADV. SMT.SUMATHY DANDAPANI, SR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- S.A.No.817 of 1996 -------------------------- JUDGMENT Defendant in O.S.No.456/1987 on the file of Additional Munsiff's Court, Kozhikode-I is the appellant. Respondents are the plaintiffs. Respondents instituted the suit seeking a decree for damages of Rs.1,000/- contending that appellant cut and removed an Irul tree from the plaint schedule property, which was standing on the southern side and thereby caused loss to the respondents and in spite of Exhibit A1 notice, appellant did not pay the damages. 2. Appellant resisted the suit contending that she did not cut any tree from the property of the plaintiffs and there was no Irul tree in the plaint schedule property and she is not liable to pay any damages. When respondents amended the plaint seeking damages of Rs.2,478/- instead of Rs.1,000/- as originally claimed, based on the assessment of damages made by the Commissioner in his report, SA 817/96 2 appellant filed an additional written statement disputing the value. 3. Learned Munsiff, on the evidence of PWs 1 to 3 and DW1 and Exhibits A1 and A2 and C1 and C2, dismissed the suit holding that respondents did not succeed in establishing that appellant cut and removed any tree from the plaint schedule property. Respondents challenged the judgment before Sub Court, Kozhikode in A.S.No.4/1992. Learned Additional Sub Judge, on re-appreciation of the evidence, found that there is no dispute that the Irul tree, alleged to be cut and removed, was not in the property of the respondents and evidence of DW1 shows that an Irul tree was cut and its timber was used for the construction of her house. Though the learned Additional Sub Judge noted that the said tree was cut in 1965, as she pleaded in the written statement that she cut and removed a tree. Therefore, on the evidence, it was found that respondents are entitled to the value of the tree and granted a decree for Rs.1,000/- with interest SA 817/96 3 at 6% per annum till realisation. This second appeal is filed challenging the judgment and decree of the first appellate court. 4. Second appeal was admitted formulating the following substantial questions of law: 1. Whether a decree can be granted if the cause of action is not proved by the plaintiffs? 2. Whether the plaintiffs should be examined to prove the cause of action in a suit for damages? 5. Learned counsel appearing for the appellant and the respondents were heard. 6. Though the trial court did not accept the case of the respondents and dismissed the suit, the first appellate court granted a decree on the ground that evidence of DW1 shows that an Irul tree was used for the construction of their house and it was also admitted by DW1 that, that tree was cut for the construction of their house. Based on it, it was found that the said tree was the tree, which was cut from the plaint schedule property and therefore, granted a decree for damages. As rightly SA 817/96 4 argued by the learned counsel appearing for the appellant, when the appellant contended that she has not cut any tree from the plaint schedule property, unless there is evidence to prove that the tree was cut by the appellant or on her behalf by any other person, she cannot be saddled with the liability to pay damages. 7. Even though there are four plaintiffs in the suit, none of them was examined. Instead, the brother of the first respondent was examined as PW1. His evidence is that the property was originally in his possession and he was managing the property and therefore, conversant with the facts. But, even PW1 has no a case that he has seen the tree being cut by the appellant. PW2, a neighbour, was examined to prove that it was DW1, the husband of the appellant, who had cut the tree. Though in chief examination PW2 deposed that the tree was cut by DW1 three or four years prior to his examination and there was exchange of words in respect of cutting of the tree and on enquiry, he SA 817/96 5 knew that the tree was cut by the husband of the appellant, in cross-examination, PW2 admitted that he did not go there at that time when he heard the exchange of words. PW2 also deposed that he had not seen the appellant or DW1 cutting the tree. Therefore, on the side of the respondents, there is no acceptable evidence to prove that the tree was cut by the appellant or on her behalf, by DW1. 8. PW3 is the Commissioner who submitted Exhibit C2 report. Commissioner did not report who had cut the tree. What remains is only the evidence on the side of the appellant. Though appellant was not examined, her husband was examined as DW1. DW1 asserted that neither the appellant nor DW1 cut any tree from the plaint schedule property. Learned Additional Sub Judge relied on a portion of the deposition of DW1 with regard to the timber used for construction of the house of the appellant. As deposed by DW1, in 1962, the property, where the appellant now resides, was purchased and thereafter they shifted their residence to the property. The SA 817/96 6 house was renovated in 1965. It was further deposed by DW1 that for the renovation of the house, a tree was cut from the property given by the mother to DW1. By no stretch of imagination, the said fact could be taken as an admission of cutting of a tree from the plaint schedule property. What was contended in the plaint itself is that the tree was cut on 22.6.1987. Therefore, the admission about a tree, which was cut in 1965 and used for renovation of the house, cannot be made use of for holding that DW1 admitted that a tree was cut from the plaint schedule property, especially when the tree from the plaint schedule property was cut only in June 1987. Therefore, there is absolutely no evidence in support of the finding by the learned Additional Sub Judge that it was the appellant or her husband who had cut and removed the tree from the plaint schedule property. Evidence of PW1 shows that the tree was cut and was lying in the property, for two or three days and with regard to the cutting of the tree, there was a mediation and SA 817/96 7 the mediator was Churakkal Chandukutty, who is none other than the son of his father. But that Chandukutty was not examined. In such circumstances, learned Additional Sub Judge was not justified in reversing the finding of the trial court and granting a decree in favour of the respondents when the fact that the tree was cut by the appellant was not established. In such circumstances, the judgment of the first appellate court can only be set aside. Appeal is allowed. Judgment and decree in A.S. No.4/1992 on the file of Sub court, Kozhikode are set aside and the judgment and decree in O.S.No. 456/1987 on the file of Additional Munsiff's Court, Kozhikode-I, are restored. If the appellant has deposited any amount before the trial court, as directed by this Court, she is entitled to withdraw the same. 11th February, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 817/96 8 M.Sasidharan Nambiar, J. -------------------------- S.A.No.817 of 1996 -------------------------- JUDGMENT 11th February, 2010