IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 AFA.No. 14 of 1994() ---------------------------- AGAINST THE JUDGEMENT/ORDER IN AS.405/1990 DATED 19/08/1993 OS.169/1984 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANTS IN AFA-RESPONDENTS IN A.S.: ----------------------------------------------------------------- 1. LEELAMMA J.KADAVAN, M.A.J. HOSPITAL QUARTERS, EDAPPALLY, KANAYANNUR TALUK. 2. JAMES J.KADAVAN, IN DO. DO. BY ADV. MR S.V.BALAKRISHNA IYER RESPONDENT IN AFA-APPELLANT IN A.S.: ------------------------------------------------------------- P.J. MATHEW, SON OF JOSEPH, MALIKUDI PADAYATTI, SOUTH VAZHAKKULAM, KUNNATHUNAD TALUK. BY ADV. MR.DINESH R SHENOY, MR.VPK.PANICKER. THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.R.RAMAN & K.SURENDRA MOHAN, JJ. ------------------------------------------- A.F.Appeal No.14 of 1994 ------------------------------------------- Dated this the 21st day of August, 2009 JUDGMENT Raman,J. The plaintiffs are the appellants. The suit was one for damages alleging trespass by the defendants in the plaintiff's property removing the kayyala on the western side of the property and cutting and removal of the trees thereon for the purpose of widening the road. Defendant No.1 was the State. D2 is the Block Development Officer. D3 to 5 are party respondents. 2. The basic averment necessary for the disposal of this appeal are as follows:- On the western side of the property of the petitioner, there is a road pre-existing. Under the National Rural Employment Program (hereinafter referred to as 'NREP'), sanction was accorded by the District Collector for widening the road to the length of 3606 metres between Kunnukuzhi Ferry and Chemparakky in Vazhakulam Panchayat. The proposed width was eight metres. The Panchayat was to provide land by getting free surrender from the land owners. AFA No.14/1994 2 On the representation from the Panchayat that free surrender from the land owners has already been obtained, widening work commenced and the same work was entrusted to a beneficiary committee. The 4th respondent herein, who was the fourth defendant, was the Convenor of the Committee. The petitioner's property was bounded by granite wall abutting the road. He did not surrender any land for the purpose of widening the road and raised an objection regarding taking over any portion of his land for the purpose of widening the road. It was the case of the plaintiff that in spite of his resistance, the western boundary wall of the petitioner was demolished. Few rubber trees and other trees were pelted by trespassing into the property by defendants 3 to 5 and their workers that they were acting on the instruction of defendants 1 and 2 who are the State and the Block Development Officer. The cost was estimated at Rs.12,000/- for restoring the boundary wall and after taking out a commission, the claim for damage sustained by the petitioner, as assessed by the Commissioner was enhanced to Rs.27,332/-. 3. Defendants 1 and 2 contended that the suit is bad as against them in the absence of any notice under Section 80. They also contended that instructions were given not to take AFA No.14/1994 3 an inch of land without free surrender. The trial court found that no decree can be passed against D1 and D2 and the suit was held not maintainable in the absence of any notice under Section 80. Though D3 was exhausted. As against D4 being the Convenor of the beneficiary committee, the court below found that he is liable to pay compensation and the compensation was estimated at Rs.27,332/- as prayed and decreed the suit against which the fourth defendant preferred an appeal. The learned single judge of this Court scanned through the entire evidence, both oral and documentary and came to the conclusion that there is no direct evidence of any act of trespass by the 4th defendant or causing any damage to the property or cutting the trees as alleged. Court referred to the finding of the trial court wherein the trial court drew an inference from the totality of the facts that D4 being a convenor of the beneficiary committee, who was responsible for widening the road and the damage sustained by the petitioner and cutting the trees etc. which was established by the Commissioner's report, liability was fastened on the fourth defendant. But,this court found that the Panchayat on being informed of the trespass and resisted by the appellant had written a letter to the convenor of the beneficiary committee, the fourth defendant AFA No.14/1994 4 not to proceed with the work on the portion where the dispute exist. But even before that the fourth defendant himself had written a letter to the Panchayat about the resistance made by the appellant herein. Further, he also did not claim any amount towards the work done in the portion of the land which is alleged to have been trespassed into by the defendants on the land belonging to the petitioner. So the probabilities were defused by the evidence. As a matter of fact if the fourth defendant had not claimed any amount towards widening of the road in the portion in dispute and if he had volunteered to sent a letter to the Panchayat about the resistance made by the plaintiff/appellant, that is a clear indication of his non-involvement in the alleged trespass. If so, at least this is sufficient to rebut the presumption against his possible involvement in the trespass. True, rubber trees and other trees were cut and it has been proved in evidence and the Commissioner has also valued the estimate. The damage has assessed by the Commissioner to which the petitioner is entitled to, the question as to whether the fourth respondent is liable to pay any amount would depend upon the further evidence that he has committed the trespass after cutting and removal of the trees and widening the road. AFA No.14/1994 5 3. In the above circumstances and in the absence of any direct evidence against the fourth defendant, it is not possible to draw any inference against him, especially in the light of the evidence as dismissed above. This is the basis on which the learned single judge set aside the decree as against the fourth defendant and allowed the appeal. 4. We have gone through the judgment of both the courts below and perused the evidence, we are satisfied that there is no warrant for interference in the appeal and the findings of the learned single judge. Though we have gone through the entire evidence, we find that the conclusion reached by the learned single judge is a possible one and a contra finding cannot be entered into for which there is absolutely no evidence. In the circumstances the appeal fails. However, in the circumstances of the case no order as to cost. P.R.RAMAN, JUDGE K.SURENDRA MOHAN, JUDGE css/ AFA No.14/1994 6 P.R.RAMAN, J. & K.SURENDRA MOHAN,J. AFA NO.14 OF 1994 JUDGMENT 21.8.2009