IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 AS.No. 44 of 2002() ------------------- OS.40/1996 of PRINCIPAL SUB COURT, PALAKKAD APPELLANT/PLAINTIFF: ----------------------- KUTTAN, S/O. PANGAN, RESIDING AT A-8, INSTRUMENTAION QUARTERS, KANJIKODE, PALAKKAD TALUK. BY ADV. SRI.V.CHITAMBARESH SRI.SHAMIER MARICKAR RESPONDENTS/DEFENDANTS: -------------------------------- 1. VEERAPPAN, S/O. MAYANDI. 2. SIVADASAN, S/O. VEERAPPAN. 3. RADHAKRISHNAN, S/O. VEERAPPAN. 4. KANNAN, S/O. VEERAPPAN. RESPONDENTS 1 TO 4 ARE RESIDING AT NELLICHOTTIL, MACHANGAPURAKKAL, POTHUNDI VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 5. MADHAVAN, S/O KUNJU, RESIDING AT ARAMBARUPATHI, POTHUNDI VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 6. THANKAPPAN, S/O. CHAMU, RESIDING AT KANJIRAKEKKAD, MANAYMAPATTU VEEDU, POTHUNDI, NEMMARA, CHITTUR TALUK, PALAKKAD DISTRICT. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 TO R4 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = A.S. No. 44 of 2002 = = = = = = = = = = = DATED THIS, THE 19TH DAY OF JULY, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge, Palakkad, in O.S. No. 40/1996. The suit is one for damages. It is the case of the plaintiff that on 20.5.1995 the defendants forcibly had taken their tractor through his property and destroyed his seedlings and had caused damages. When the plaintiff attempted to prevent them, all the defendants together had wrongfully restrained him and the first defendant, with the handle of a spade, had caused facial injury which resulted in nasal bone fracture. According to the plaintiff, he was taken to the Government Hospital, Nemmara, first and subsequently, to the Medical College Hospital, Thrissur, where he had undergone treatment. Therefore, the plaintiff had claimed damages on all these counts. 2. The defendants, on the other hand, would contend that the incident alleged in the plaint is not true, but on 20.5.1995, when the defendants were taking their tractor through the property of the plaintiff's brother for which they had a right, the plaintiff, his brother- AS 44/2002 :2: in-law Krishnankutty and his wife one Thatha came, obstructed and man-handled the first defendant resulting in injuries to him. He was treated in the District Hospital for a period of six days and thereafter, on the basis of a private complaint, a case had been registered against the plaintiff in this case. The trial court, on appreciation of the materials, did not find in favour of the plaintiff and therefore, dismissed the suit. It is against that decision, the plaintiff has come up in appeal. 3. Heard the learned counsel for the appellant as well as the respondents. It is the case of the plaintiff that on 20.5.1995 at about 5.30 p.m. the defendants had forcibly taken their tractor through the property belonging to the plaintiff in order to reach their paddy field thereby they had caused destruction to the seedlings in the plaintiff's property and when an attempt was made to resist it, all the defendants jointly and wrongfully restrained him and the first defendant with the handle of a spade had caused him facial injuries which resulted in nasal bone fracture and treatment. The defendants, on the other hand, would contend that when they were taking the tractor through the plaintiff's brother's property, the plaintiff, his brother-in-law Krishnankutty, sister Thatha and others came to the property and man-handled the first defendant resulting in injuries to him and so the plaintiff is not entitled AS 44/2002 :3: to any relief. It has to be stated that the burden of proof is on the plaintiff to establish that the incident had taken place as alleged. At the outset, I may like to state that other than the interested oral evidence of PW.1 there are no other independent witness examined in the case to prove the incident. I am conscious of the fact that interestedness of a witness by itself is not a ground to reject his evidence. But in a case where it is of a criminal nature and where there is a counter case set up by the defendants, the burden is more on the plaintiff to establish his case. The plaintiff had been asked whether he has produced any document relating to the property in which the defendants have trespassed. No document is forthcoming. It is also interesting to note that the level difference between the plaintiff's property and the defendants' property is more than 5 feet and the plaintiff has kept totally silent till the ridges had been done away with spade work and reduced into a lower height. In the ordinary circumstance, it cannot be the attitude. The plaintiff has got a definite case that it was in the presence of his brother-in-law Krishnankutty the first defendant had caused injury to him by using the handle of a spade. But for the reasons best known to the plaintiff, this Krishnankutty was not examined before the court. Further, the scene mahazar produced by the defendants Ext.B1 would AS 44/2002 :4: reveal that the property wherein the incident is alleged to have been taken place was a barren land. If it is true, then it should not have been in the plaintiff's property. I am stating so for the reason that the defendants have got a definite case that they were attempting to take the tractor through the property of Sundaran - brother of the plaintiff. According to the defendants, then the plaintiff and others wrongfully restrained the defendants and caused injuries to the first defendant. There were two cases - one on the basis of a police complaint and the other on the basis of a private complaint and though in the criminal case registered against the defendants there was a conviction in the trial court, now it is admitted that it has ended in acquittal. It is stated that on the basis of a private complaint filed by the defendants, a case is registered and is pending before the Judicial First Class Magistrate, Alathur. So, the definite case of the defendants is to the effect that it is the plaintiff who is the aggressor ad not the other way. When these are the circumstances, being a suit for damages, the burden is heavily upon the plaintiff to establish the incident. There is no material evidence forthcoming in this case to substantiate that contention. Therefore, it has to be held that the plaintiff has failed to prove that the defendants have attacked him and thereby he had sustained injuries. The evidence AS 44/2002 :5: of the doctor PW.2 in the chief examination is that these injuries could be caused by a weapon like the handle of a spade. But in the cross examination, he would submit that it can be caused by way of a fall as well. More than anything, unless the plaintiff is able to satisfy the court that the first defendant had caused the injury, he will not be entitled to the relief. As the said matter is lacking, it has to be held that the plaintiff is not entitled to any relief in the suit. It is true that the learned Subordinate Judge had gone and discussed all other matters which will not be of great significance, for the fact that the incident is not proved. So, obviously, for the main reason that the incident is not proved, the plaintiff is not entitled to any relief. Therefore, the judgment and decree of the court below is not liable for interference. The appeal fails and is dismissed; but without any costs. M.N. KRISHNAN, (JUDGE) knc/-