K.R.Kunjukrishna Pillai vs S.Suresh
2021 Latest Caselaw 18676 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
 THURSDAY, THE 9TH DAY OF SEPTEMBER, 2021/ 18TH BHADRA, 1943
                      RSA NO. 573 OF 2021
[Against the judgment and decree dated 30.3.2021 in AS No.16/2016
on the file of the Sub Court, Karunagappally confirming the judgment
and decree dated 22.12.2015 in O.S. No.47/2009 on the file of the
Munsiff's Court, Sasthamcotta]
APPELLANT/APPELLANT/PLAINTIFF:


           K.R.KUNJUKRISHNA PILLAI,
           AGED 81 YEARS,
           S/O LATE KUNJU PILLAI,
           KARAL VEEDU, VENGA P.O, SASTHAMCOTTA,
           KOLLAM DISTRICT, PIN-690521.
           BY ADVS.
           AJAYA KUMAR. G
           M.JAYAKRISHNAN


RESPONDENT/RESPONDENT/RESPONDENT:

           S.SURESH,
           AGED 52 YEARS,
           S/O SADANANDAN PILLAI,
           ALINTE KIZHAKKATHIL VEEDU, VENGA P.O,
           SASTHAMCOTTA, KOLLAM DISTRICT, PIN-690521.

    THIS REGULAR SECOND APPEAL HAVING COME UP
FOR ADMISSION ON 06.09.2021, THE COURT ON
09.09.2021 DELIVERED THE FOLLOWING:
 R.S.A.No. 573 of 2021

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                        JUDGMENT

This appeal is directed against the judgment and

decree dated 30.3.2021 in AS No.16/2016 on the file of the Sub

Court, Karunagappally confirming the judgment and decree

dated 22.12.2015 in O.S. No.47/2009 on the file of the

Munsiff's Court, Sasthamcotta.

2. The appellant is the plaintiff and the respondent

is the defendant in the suit. The parties are hereinafter

referred to as referred in the original suit. The suit was for

recovery of damages based on the trespass and mischief

committed by the defendant in the plaint schedule property.

3. The plaint averments in brief are hereinbelow:-

The plaintiff is the owner in possession of 1 acre of

land comprised in Sy.No.441/3 of the Mynagappally Village.

The plaintiff has been residing in the plaint schedule property.

The defendant has been residing on the western side of the R.S.A.No. 573 of 2021

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property. There were some disputes between the plaintiff and

the defendant over the serpent grove owned by the family of

the plaintiff. On 21.1.2009, at about 1.30 p.m.,the defendant

trespassed into the property and committed mischief therein

and thereby, the plaintiff sustained a loss of Rs.45,000/-. He

also claimed an amount of Rs.5,000/- for the mental agony

and sufferings.

4. In the written statement filed,the defendant

contended that the plaintiff has no manner of right over the

disputed property. According to him, the major portion of the

property was a serpent grove. It is his further case that reptiles

in the serpent grove have created threat to the life of the

neighbours. The defendant was an elected Panchayath

member then. The local people requested the defendant to

discuss the matter with the plaintiff and accordingly he

requested the plaintiff to remove the grove. The allegation of

trespass is denied.

R.S.A.No. 573 of 2021

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5. During the trial of the case, Pws. 1 to 3 were

examined and marked Exts.A1, A1(a) to A5 on the plaintiff side

and Ext.C1 commission report was marked as court Exhibit.

DW1 was examined on defendant side and Exts.B1 to B5 were

marked.

6. Heard the learned counsel for the appellant.

7. Concurrent findings are sought to be set aside in

this second appeal. Admittedly, the defendant was a

Panchayat member at the time of the incident. He stated that

local people complained that the reptiles in the grove have

created threat to the life of the neighboring property owners.

Being the Panchayath member, according to DW1, he was

constrained to intimate the plaintiff to remove the thick

vegetation from the property owned by him.

8. It has come out in evidence that the plaintiff filed

a private complaint before the Judicial First Class Magistrate R.S.A.No. 573 of 2021

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Court, Sasthamcotta as C.M.P.No. 953/2009 and forwarded

the complaint for investigation under Section 156(3) of Cr.P.C.

Ext.A3 is the FIR in Crime No.184/2009 of Sasthamcotta

Police Station against the present defendant as an accused.

The Police filed a refer report as evidenced by Ext.A4. The

plaintiff filed Ext.A2 protest complaint as C.M.P.

No.1089/2010 before the Judicial First Class Magistrate

Court, Sasthamcotta on 24.02.2010. After trial, the accused

was acquitted on merits.

9. The plaintiff claims title and possession over one

acre of property in Sy.No.441/3 of Mynagappally village. PW1

further stated that recently, a snake bit a child residing nearby

and infuriated by the above said reason, the local people set

fire to the disputed property.

10. It is a fact that there is no plaint schedule

description in the plaint for properly identifying or locating

the property of the plaintiff. Learned counsel for the appellant R.S.A.No. 573 of 2021

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would contend that the plaint schedule property is not

scheduled in the plaint. Invariably, it is not necessary to

schedule the property involved in a case where special damage

is claimed. This court is empowered to decide the question of

compensation without scheduling the property. As per the

pleadings, the fire has destroyed the entire agriculture of the

property and thereby caused damages including teak trees,

anjili trees, banana plants, ginger plants, colocasia etc. Ext.C1

report shows that some damages were caused to the trees and

plants in the property. The damages were fixed for an amount

of Rs.10,000/-.

11. According to the defendant, the alleged

occurrence in this case was occurred within the 46 cents of

land. The plaintiff sustained a loss of Rs.75,000/- on account

of damages caused to the one acre of property.

12. The courts below have considered the material

evidence from the proved facts. There is no evidence to show R.S.A.No. 573 of 2021

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that the defendant did the wrongful act. The trial court and the

first appellate court disbelieved the version of PWs.1 to 3

regarding the alleged act done by the defendant. The

defendant was one of the elected representatives of the

Panchayath. He stated that the local people were on inimical

terms with the plaintiff on account of the nuisance created by

the reptiles from the serpent grove. He would contend that he

had no role in setting fire to the property. In view of the facts

and circumstances alleged, the trial court disbelieved the

version of the plaintiff and his witnesses. On identical set of

facts, the plaintiff filed a criminal complaint before the

Judicial First Class Magistrate Court, Sasthamcotta. The

Police filed a refer report. Although a protest complaint was

filed, the defendant was acquitted finding him not guilty.

13. In a suit for damages, it is the duty of the

plaintiff to plead and prove the version of the plaintiff

specifying the damages correctly. Details of the damages R.S.A.No. 573 of 2021

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sustained are not stated. It is averred that the trees in the

property owned by the plaintiff have been destroyed by the act

of the defendant. The nature of the trees and the value thereof

have not been proved. According to the plaintiff, he is the

owner in possession of 1 acre of property in Sy.No.441/3 of

Mynagappally Village and he is residing along with his wife

and children.

14. Admittedly, the defendant is residing on the

western side of the plaintiff's property. He has not produced

any title deed before the trial court. Ext.A1 tax receipt

produced by the plaintiff would show that the plaintiff paid tax

to the property having an extent of 20.95 ares. However,

Ext.A1(a) tax receipt would show that plaintiff paid tax to the

property having an area of 16.90 ares of property, which is

equivalent to 41.743 cents only. There is nothing on record to

show that the alleged trees, which were destroyed by fire, were

situated in the 41.743 cents of property allegedly owned and R.S.A.No. 573 of 2021

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possessed by the plaintiff.At the same time, plaintiff asserted

title and possession of 1 acre of land for which no material was

produced before the trial court. Under the circumstances,

both the trial court and the first appellate court concurrently

held that the claim for damages was not established by the

plaintiff and accordingly, he was non-suited.

15. In a second appeal, the jurisdiction of the High

court being confined to substantial question of law. A finding

of fact is not open to challenge in a second appeal even if the

appreciation of evidence is palpably erroneous and the finding

of fact is incorrect. The plea made by the learned counsel for

the appellant is that the courts below dismissed the suit

mainly for the reason that the plaint schedule property was

not scheduled.

16. It is true that non-scheduling of plaint schedule

property is not a ground to dismiss a suit for damages

provided the plaintiff has succeeded in proving the actual R.S.A.No. 573 of 2021

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damages sustained. In this case, on merits, the plaintiff failed

to establish his case. The respondent, being an elected

representative of the Panchayath, cannot be burdened with

damages unless positive evidence is adduced to prove the

same. Hence, there are no materials before this Court to

admit the appeal on substantial questions of law. The appeal

is liable to be dismissed in limine.

In the result, this second appeal is dismissed.

There will be no order as to costs. Pending applications, if

any, stand closed.

Sd/-

(N.ANIL KUMAR) JUDGE MBS/