IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 RSA.NO. 1293 OF 2009() ----------------------------------- AS.194/2005 OF ADDL. DIST. COURT (ADHOC) III, PALAKKAD OS.231/1996 OF PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/1ST RESPONDENT/PLAINTIFF: -------------------------------------------------------- LEELA,W/O.CHANDRAN, SOUPARNIKA, THENUR, PARALI, PALAKKAD. BY ADV. SRI.P.VIJAYA BHANU SMT.M.M.DEEPA RESPONDENT(S): APPELLANTS & RESPONDENTS 2 & 3 DEFENDANTS 1, 4, 2 & 3 --------------------------------------------------------------------------- 1. SUKUMARAN, S/O.CHELLAN, PALLATH HOUSE, THENUR, PARALI, PALAKKAD. 2. CHELLAN,S/O.MAYANDI, KUNDUMARIL VEEDU, THENUR, PARALI, PALAKKAD. 3. BALAN, S/O.CHAMI, PALLATH HOUSE, THENUR, PARALI, PALAKKAD. 4. THANKAMANI,S/O.KRISHNAN, THANDATHARA, KINAVALLUR, PARALI, PALAKKAD. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/01/2010 ALONG WITH R.S.A. NO.1324 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NOS.1293 & 1324 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of January, 2010 J U D G M E N T --------------------- These appeals arise from common judgment and decree of learned Additional District Judge, Palakkad in A.S. Nos.194 and 232 of 2005 reversing the judgment and decree of learned Munsiff, Palakkad in O.S. No.231 of 1996. Appellant sued the respondents for a decree for prohibitory injunction and recovery of damages alleging that on the midnight of 28.4.1996 respondents trespassed into the suit property and committed mischief of destroying the fence and cut and removed valuable trees for the purpose of widening the road. Appellant claimed that she suffered loss of Rs.12,850/- and wanted decree for injunction and decree for recovery of damages to the tune of Rs.12,850/-. It is the case of appellant that respondent Nos.3 and 4 had attempted to demolish the western boundary wall on a previous occasion which was successfully prevented by the appellant by filing O.S. No.132 of 1993 and the present acts were done in violation of the decree obtained in that case. Respondents denied the allegations against R.S.A. Nos.1293 & 1324 of 2009 -: 2 :- them and claimed that the road was widened by the authorities related to the nearby Harijan Colony for the use of members of that Colony. They also contended that development of the road was with the co-operation of the inhabitants of the Colony making use of portion of the land surrendered by the appellant and other adjacent land owners. It is contended that the trees in the portion surrendered by the appellant were actually cut and removed by herself. Respondents have no role in the alleged widening of the road. Trial court found that appellant has no apprehension about trespass since the appellant did not claim relief against the respondents in respect of the area already used for widening of the road. Relief of injunction was sought for the purpose of protecting the old boundary fence on the western side from being destroyed by the respondents but appellant when examined as P.W.1 stated that she is not claiming the area beyond the existing boundary wall on the western side (after widening of the road). Hence relief of injunction was disallowed. That part of the decree has become final. 2. So far as the claim for damages is concerned, trial court observed that there is evidence to show that respondents are involved in widening the road. Trial court relying on the evidence of R.S.A. Nos.1293 & 1324 of 2009 -: 3 :- P.W.1 came to the conclusion that mischief was committed by the respondents and accordingly a sum of Rs.8,500/-, made up of Rs.5,000/- towards mental agony of appellant, Rs.2,000/- towards value of trees cut down and Rs.1,500/- towards cost of gate was awarded as damages. Respondents preferred A.S. Nos.194 and 232 of 2005 challenging the decree for damages. First appellate court did not interfere with the finding of trial court that respondents are instrumental in widening the way but found that claim for damages is not established and consequently reversed that part of the decree awarding damages. That part of the suit also was dismissed. Hence these Second Appeals. 3. Substantial questions of law urged in the memoranda of appeal are whether appreciation of facts and circumstances made by the first appellate court is perverse which resulted miscarriage of justice and whether finding of first appellate court regarding the claim for damages is correct. It is contended by learned counsel for appellant that finding entered by the first appellate court is not legally correct. 4. It is interesting to note that so far as the alleged trespass by the respondents is concerned in spite of denial made by them only evidence on record is that of the appellant as P.W.1. The R.S.A. Nos.1293 & 1324 of 2009 -: 4 :- incident allegedly occurred on the midnight of 28.4.1996. It is the case of the appellant that in connection with that a criminal case is also registered against the respondents. Exhibit A8 is the copy of the judgment in the criminal case. But it is settled position of law that judgment of criminal court is not binding on the civil court and vice-versa. Exhibit A8 can be used only for the purpose of ascertaining whether there was a conviction. In the case on hand only evidence is that of the appellant as P.W.1. On the other hand D.Ws.1 and 2 have given contra evidence. It is also seen from the judgment of the trial court that involvement of respondents in the alleged mischief was found by the trial court for the reason that D.W.1 stated that he has also taken part in the development of the road in that he had talked to some of the adjacent land owners regarding their surrendering portion of their land. But there is a finding that respondents are involved in the alleged mischief. These Second Appeals concern the refusal to award damages. So far as claim for damages is concerned, first appellate court found that the sum of Rs.5,000/- awarded towards mental agony is without pleadings and hence that was set aside. So far as the sum of Rs.2,000/- awarded towards value of trees cut and removed is concerned first appellate court stated that the nature of R.S.A. Nos.1293 & 1324 of 2009 -: 5 :- improvements and the loss thereby caused are not given in detail by the Advocate Commissioner. Commissioner has not stated how the figure was arrived at and hence that claim cannot also be sustained. Similar was the view taken by the first appellate court in respect of the claim for damages towards cost of gate. Commissioner did not say how he assessed the damages. Nor did the appellant say that he spent Rs.1,500/- for construction of the gate. It is in the above circumstances that first appellate court was not inclined to sustain the decree for damages. First appellate court on the facts and evidence came to the conclusion that the claim for damages cannot be sustained. Considering the over all circumstances I do not find any substantial question of law involved in the Second Appeals requiring admission. Second Appeals are dismissed in limine. Interlocutory Application Nos.2968 and 3044 of 2009 shall stand closed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. Nos.1293 & 1324 of 2009 -: 6 :- THOMAS P.JOSEPH, J. =================== R.S.A.NOS.1293 & 1324 OF 2009 =================== J U D G M E N T 6TH JANUARY, 2010 R.S.A. Nos.1293 & 1324 of 2009 -: 7 :-