IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 AFA.No. 18 of 1998() ------------------- AGAINST THE JUDGEMENT/ORDER IN AS.300/1988 Dated 01/09/1997 OS.187/1983 OF SUB COURT, THRISSUR .................. APPELLANT / IST RESPONDENT / 1ST DEFENDANT : ------------------------------------------------------------------------ VALLACHIRA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VALLACHIRA. BY ADV. SRI.N.P.SAMUEL RESPONDENTS / APPELLANTS / PLAINTIFFS : ---------------------------------------------------------------- 1. RAPPAI, S/O. PARAKKAL OUSEPH, VALLACHIRA VILLAGE AND DESOM, THRISSUR TALUK, TRICHUR DIST. 2. GEORGE, S/O. PARAKKAL OUSEPH, VALLACHIRA VILLAGE AND DESOM, THRISSUR TALUK, TRICHUR DIST. 3. PORINCHU, S/O. PARAKKAL OUSEPH, THRISSUR TALUK, VALLACHIRA VILLAGE, TRICHUR DIST. 4. VARAPPAN, S/O. PARAKKAL OUSEPH, VALLACHIRA VILLAGE AND DESOM, THRISSUR TALUK, TRICHUR DIST. ...2/- AFA.No. 18 of 1998() -2- 5. DAVID, S/O. PARAKKAL OUSEPH, VALLACHIRA VILLAGE AND DESOM, THRISSUR TALUK, TRICHUR DIST. R1 TO R5 BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AFA No.18 of 1998 ------------------------------------------------------------------------ Dated 6th October 2010 Judgment Thottathil.B.Radhakrishnan, J. This appeal is by the first defendant in a suit for recovery of possession and damages. 2. Plaint A schedule property belongs to the plaintiffs. Plaint B schedule is part of it. That property abuts a panchayat road. The panchayat decided to widen that road upto 8 feet, with the intention to hand over that road to the Public Works Department. Many of the owners of lands abutting the road had, it is stated, surrendered their property to the panchayat. But the plaintiffs, even going by the records of the panchayat, did not surrender their property. The third defendant contractor was carrying on the work of widening the road. The plaintiffs sued on the allegation that plaint B schedule property was reduced from the possession of the plaintiffs and annexed to the road unauthorisedly, thereby causing damage to their AFA No.18/1998 2 property. The plaintiffs, therefore, wanted recovery of plaint B schedule property and also a decree for damages. Even before the trial court, the appealing defendant panchayat had no case that plaint B schedule property belonged to it. It, in fact, took the stand that neither the first defendant nor its president - the second defendant, had anything to do with the alleged acts and the third defendant contractor was never authorised to proceed in excess of land actually surrendered. The third defendant contested on the plea that he had completed the work earlier. At trial, as noticed by the learned single Judge in the first appeal, there was really no controversy as to the eligibility of the plaintiffs for a decree for recovery of plaint B schedule property. However, even that was not granted. The trial court also disbelieved the witnesses and refused a decree for damages. 3. In the first appeal, the learned single Judge found that the plaintiffs are entitled to recovery of possession of plaint B schedule property. Apart from AFA No.18/1998 3 adverting to and considering the oral evidence on record and also the panchayat documents including Exts.B2 and B3 series, the learned single Judge concluded that the panchayat is liable to pay damages. Reversing the decree of dismissal of the suit, the learned single Judge allowed the appeal and granted a decree for recovery of possession of plaint B schedule property and for recovery of damages to the extent of Rs.17,346.80 and costs before the trial court. 4. In this appeal by the panchayat, it is contended that the panchayat ought not to have been penalised for the damages. It is argued that the documentary and oral evidence on record do not support the conclusion of the learned single Judge. The commissioner, who visited the property had placed Ext.C1 report. The first plaintiff gave evidence as PW1. His version regarding the incidents that occurred on the night of 07.01.1983 was accepted by the learned single Judge. The evidence of PWs 3 and 4 corroborated the evidence of AFA No.18/1998 4 PW1. The learned single Judge also found that the trial court had, without any sustainable reason, rejected the oral evidence on behalf of the plaintiffs. The documentary evidence, including the letters and resolutions of the panchayat, as disclosed by Exts.B2 and B3 series documents, were adverted to and considered by the learned single Judge to conclude that on facts, it is proved by the plaintiffs that they had suffered damages. The learned single Judge had found that even with reference to a mahazar prepared in a criminal case filed by the plaintiffs, materials have been established. The loss caused was referable to acts, which the panchayat ought to have envisaged in the scheme of things, while proceeding to widen a road, for which admittedly, the requisite width was not available either by voluntary surrender by the local people by relinquishment in accordance with law or by acquisition under the Land Acquisition Act. There could not have been any deprivation of property otherwise than through the procedure provided under the Land Acquisition AFA No.18/1998 5 Act. We do not find any ground to interfere with the findings of the learned single Judge. The appeal is accordingly dismissed. However, the parties are directed to bear their respective costs. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AFA No.18/1998 6