IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 SA.No. 910 of 1998(G) --------------------- AS.77/1996 of SUB COURT, KASARAGOD OS.525/1992 of PRL.MUNSIFF COURT, KASARAGOD .................... APPELLANTS/RESPTS/ D1 TO D6, D8 TO D12 & L.Rs OF DECEASED D7: -------------- 1.THARA BAI, 74 YEARS (D1) 2.ASHOKA SHENOY, 38 YEARS (D2) 3. SURENDRA SHENOY, 40 YEARS (D3) 4. GEETHA, 30 YEARS (D4) 5. JYOTHI, 32 YEARS (D5) 6. NARAYANA, 43 YEARS (D6) 7. KESHAVA, 40 YEARS (D8) 8. CHANDRAVATHI ALIAS MOLU, 58 YEARS (D9) 9. GANESH, 34 YEARS (D10) 10. KAMALAKSHA, 31 YEARS (D11) 11.VITTALA, 28 YEARS (D12) * L.Rs OF LATE RAMA (D7) 12. SUMATHI, 40 YEARS 13. JAYASHRI, 21 YEARS 14.HARISH, 19 YEARS 15. KUSHALA ALIAS PAYASWANI, 18 YEARS BY ADV. SRI.S.VINOD BHAT RESPONDENT/APPELLANT/PLFF: --------------- SMT.RUKMINI M.C. 48 YEARS ADV. SRI.K.G.GOWRI SANKAR RAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 1/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKC P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - S.A.No.910 of 1998 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July , 2011 J U D G M E N T The defendants 8 to 10 legal heirs who suffered a decree in the hands of the lower appellate court are the appellants. Parties and facts hereinafter referred to as they are avaiable before the court. It is necessary to burden this judgment that the entire ..for the simple reason that the entire facts and judgments of the court below. Therefore facts essential for disposal of this appeal are referred to. At preset there was earlier litigation between the defendants in the present predesessor in interest of the plaintiff and other in referred to ....that ended interms which is evidenced by ..... The complaint of the plaintiff in the present suit was that in order to widen the pathway the defendants were trying to cut a jackfruit tree standing in the property and was also pull down that compound wall at the southern side of the property of the plaintiff. The .. of :2: S.A.No.910 of 1998 the pathway is obtained from the reading of the judgment of the lower appellate court ... without no such averment in the plaint. Whatever that be the short case of the plaintiff was a portion of the compound wall had been pulled down by the defendants. Therefore suit was laid for damages and other reliefs. The defendants resisted the suit. According to them in addition to the three feet pathway obtained them as in terms of the premises evidenced by an earlier proceedings the predecessor in interest of the plaintiff was gracious to enough 3.5 feets additional extent of land to show that party have ... way its property. The defendants would pointed out that the story of demonstration under go by the plaintiff with the motivation of annexing on pathway to her property. They therefore prayed for the dismissal of the suit. On the above pleadings issues were raised. The evidence consists testimony of PW1 and exhibits A1 to A10 marked for the plaintiff. Defendants had DW1 examined. :3: S.A.No.910 of 1998 C1 to C3 are the commissioners report and plan. On appreciation of the evidence trial court found that .. want of evidence alleged mischief was caused by the defendant. Therefore could not be held responsible for .. could thereby ..... Accordingly the suit was dismissed. Disappointed ....her the matter in appeal as AS 72/1996 before the sub court Kasaragod. Lower appellate court though ..... trial court recording the finding that there was want of evidence relating to actual involvement of the defendants in the mischief act was of the veiw in all probabilities ...by them with law. Judgment and decree of the trial court was reversed and decree was granted in favour of the plaintiff. Notice is issued in the following question of law. The learned counsel for the appellant criticize the judgment and decree of the lower appellate court by pointing out that is based on surmises rather than the :4: S.A.No.910 of 1998 evidence in the case. The learned counsel also draw the attention of this court to the fact that lower appellate court was of the view that there was want of evidence indicating involvement of the defendants in the alleged mischevious act. However the lower appellate court felt that since the defendants in are.... beneficiaries of the widening of the road it must have been done by them. Learned Government Pleader referred to the Commissioner's report and try to high light unsustainability of the commissioner's report and evidence furnished by PW1. At any rate according to the learned counsel it could be seen that there is no evidence at all to show the involvement of the defendants in the alleged activities and no justification for the lower appellate court reversed the findings of the trial court. Per contra, the learned counsel for the respondents pointed out that lower appellate court was guided by the :5: S.A.No.910 of 1998 probabilities of the case and was justified in coming to the conclusion in all probabilities the act what have been done by the defendants themselves. Learned counsel highligted there have been attempts on the part of the defendants to damages to the roots of the jack fruit tree and that indicates there attitude towards the widening tamper with the pathway. The trial court found that there was want of evidence to show the involvement of the defendants. It is the allegation that the incident took place in the midnight of 21.02.1992. PW1 admits that she did not see the the incident. It is not possible to understand from the evidence of ... she covered the information that it was not done by the defendants. Trial court has noticed that there were several inmates for the house of the plaintiff at the relevant time and nobody had heard any voice ... said act committed by the defendants. ............it is done by the defendants. If at the matter of fact .........What satisfied all portion :6: S.A.No.910 of 1998 of demolition at all. Apart from all these facts lower appellate court is found that there is no direct evidecne regarding the involvement of the defendants. There is some other disputes regarding the actual width of pathway , but it is not the subject matter of this litigation. By these sides ... for the having sustained damages. While the defendants would plaintiffs ...... At any rate there is no evidence to show that either of these parties. Commissioner's report is not very helpful in this regard. As rightly pointed out ... commissioners report has no assistance with the evidence furnished by PW1. That being the assessment of damages notified cannot be ... It is in the light , the trial court.. there was want of evidence to show the involvement of defendants. As . Noticed that the lower appellate court as proceed on probabilities of the case. Of course as rightly pointed out by the learned cousel for the respondent , the evidence required in the Civil case :7: S.A.No.910 of 1998 as stringent as the criminal case. But it cannot be far vast. Imaginations of ... take the place of proof. In the light of the fact that there was no evidence at all to ... the defendants to the alleged act. Lower appellate court was not in reversing the findings of the trial court, the defendants would be held responsible for the alleged demolition of the compound wall. Lower appellate was right in awarding the damages ... by the plaintiff. In the result the appeal was partly allowed and that part of the judgment and decree liable for having .. cause the damages to the compound wall be set aside. There will be no order as to costs. P.BHAVADASAN, JUDGE