IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 CRP.No. 534 of 2009() --------------------- AS.19/2007 of SUB COURT, PALA OS.260/2005 of MUNSIFF COURT, PALA .................... REVN. PETITIONER: APPELLANT/PLAINTIFF ---------------------------------------- LAKSHMIKUTTY AMMA PADMINIYAMMA, PADMANILAYAM (KIZHAKKEKUTTU), LALAM VILLAGE, NECHIPUZHOOR KARA AND POST, FROM EDATTUKANDATHIL, NECHIPUZHOOR KARA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT: RESPONDENT/DEFENDANT ----------------------------------- P.S.MANOJ, PULIKKAKUNNEL HOUSE, NECHIPUZHOOR POST, VALAVOOR KARA, VALLICHIRA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.534 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 7th October, 2009 ORDER Petitioner is the plaintiff in O.S.No.260 of 2005 on the file of the Munsiff Court, Pala. The above suit was one for damages, which after trial was dismissed by the learned Munsiff. The appeal preferred by the petitioner challenging the dismissal of the suit by the learned Munsiff was also unsuccessful with the learned Sub Judge, Pala dismissing that appeal, confirming the findings entered by the court below. The dismissal of the suit as confirmed by the appellate court is challenged in the revision. 2. Suit was one for damages. Admittedly, on a grievance espoused by the respondent/defendant as to nuisance caused by the overhanging branches of a rubber tree situate in the property of the petitioner injuriously affecting the enjoyment of his residential building and property, a proceeding commenced before the Sub Divisional Magistrate, but, later, on the basis of the consensus arrived by the parties, an order was passed, by which, it was agreed to that the overhanging branches of a rubber tree situate in the middle of three rubber trees in the property of the petitioner close to the CRP No.534/09 - 2 - property of the respondent would be cut down and removed. Pursuant to that order, the branches of the tree were cut and removed, but, according to the plaintiff, of a wrong tree situate on the northern side and not of the middle tree, the branches of which were agreed to be cut and removed. The plaintiff, thereupon, alleging that he had suffered a loss of Rs.3150/- by the destruction of the rubber tree and also that the timber value of that tree would come to Rs.1200/- filed the above suit claiming damages for a sum of Rs.4350/- against the defendant. In the suit, an Advocate Commissioner deputed by the court, after conducting local inspection, filed a report which was exhibited as C1. A witness on behalf of the plaintiff who is stated to be in management of the property was examined as P.W.1. A copy of the order passed by the Sub Divisional Magistrate and also the title deed relating to the property of the plaintiff were exhibited as A1 and A2 respectively. On the side of the defendant, three witnesses including the defendant were examined as D.W.1 to D.W.3. The learned Munsiff, after appreciating the materials produced, came to the conclusion that the evidence adduced is not sufficient to hold that the cutting and removal of the branches of a rubber tree from the property of the plaintiff by the defendant CRP No.534/09 - 3 - exceeded the limits of A1 order passed by the Sub Divisional Magistrate. The evidence tendered on behalf of the plaintiff through P.W.1, in the given facts of the case, was also found to be not sufficient to prove the case of the plaintiff. Failure of the plaintiff to mount the box despite the specific stand taken by the defendant that the branches of the rubber tree shown by the plaintiff were cut and removed also weighed with the court in holding that the plaintiff is not entitled to the claim for damages raised in the suit. The learned Sub Judge in appeal concurred with the views formed by the court below and concluded that the dismissal of the suit is proper and correct. 3. Learned counsel for the petitioner inviting reference to the commission report prepared by the Advocate Commissioner contended that the findings recorded by the Commissioner would unmistakably reveal that it was not the branches of the rubber tree standing in the middle, among the three rubber trees, which were alleged of standing towards the residential building and property of the defendants, were cut and removed, but, that of another rubber tree, flouting A1 order of the Sub Divisional Magistrate. The report of the Commissioner would indicate that even at present the branches CRP No.534/09 - 4 - of that rubber tree situate in the middle of the three rubber trees still sland towards the property and building of the respondent, according to the learned counsel. Without adverting to the crucial questions arising for adjudication in the suit, on a wrong appreciation of the evidence and the material tendered, it is the submission of the learned counsel, both the courts below have concluded that the plaintiff's claim for damages was not sustainable with the result of turning down that claim. 4. Though both the courts below have not adverted to the scope and ambit of the order of the Sub Divisional Magistrate, which was passed on the basis of consent of the parties for removal of a nuisance, more particularly a public nuisance, to examine whether the suit claim raised on the allegation that something in excess was committed by the opposite party in execution of such order, it cannot be brushed aside as of no consequence and irrelevant. Needless to point out the order of the Sub Divisional Magistrate was one passed under Chapter XB of the Code of Criminal Procedure, more specifically under Section 133(1)(d) of that Code. Nuisance imputed was relating to a tree standing in the property of the petitioner. In exercise of preventive jurisdiction conferred upon the Sub Divisional Magistrate CRP No.534/09 - 5 - under the Code of Criminal Procedure to abate public nuisance emanating from civil disputes which are likely to spill over and lead to law and order problems, proceedings were taken, and on the basis of the consent of the parties, A1 order was passed. Execution of that order, no doubt, falls within the province of the Sub Divisional Magistrate. If any act had been committed in excess of that order, normally, one would expect a complaint before that Magistrate to examine that question and pass appropriate orders. Of course, a party who suffered damages in the execution of such an order in excess thereof can approach the civil court for being compensated of the loss caused to him as his civil right is also infringed. But in examining a relief claimed thereunder, he/she has not approached the authority which had passed the order, the execution of which is imputed as having been done in excess of the order passed is a material circumstance. If at all, the execution was done in excess of the order passed, the most competent person to examine that matter, needless to point out, is the Sub Divisional Magistrate who passed A1 order. Admittedly, no complaint was filed by the plaintiff before the Magistrate imputing that A1 order was executed by the defendant violating or in excess of that order. In that backdrop also, CRP No.534/09 - 6 - after perusing the judgments rendered by the two courts below, I am satisfied that there is no jurisdictional infirmity in the findings concurrently arrived by the courts below in disallowing the suit claim. I find the revision is not entertainable, and accordingly it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE