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Kerala High Court
Cholakkal Balachandran Nair vs Rajesh on 5 January, 2026
2026:KER:165
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 5TH DAY OF JANUARY 2026 / 15TH POUSHA, 1947
RSA NO. 719 OF 2025
AGAINST THE JUDGMENT AND DECREE DATED 29.10.2025 IN AS
NO.108 OF 2024 OF DISTRICT COURT, KOZHIKODE, ARISING OUT OF
THE JUDGMENT AND DECREE DATED 21.06.2024 IN OS NO.310 OF
2017 OF PRINCIPAL MUNSIFF COURT - II, KOZHIKODE
APPELLANT/APPELLANT/PLAINTIFF:
CHOLAKKAL BALACHANDRAN NAIR
AGED 74 YEARS
S/O. DHAKSHAYANI AMMA, KUNNAMANGALAM VILLAGE,
KARANTHUR DESOM, KARANTHUR P.O., KOZHIKODE, PIN -
673571
BY ADV SRI.E.NARAYANAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 RAJESH
AGED 44 YEARS
S/O. NANDANAN, CHOLAKKAL MEETHAL, KOZHIKODE
TALUK, KUNNAMANGALAM VILLAGE, KARNTHUR DESOM,
KOZHIKODE, PIN - 673571
2 VENUGOPALAN NAIR
AGED 78 YEARS
S/O. RAGAHAVAN NAIR, NEDUM KANDATHIL HOUSE,
KOZHIKODE TALUK, KUNNAMANGALAM VILLAGE, KARNTHUR
DESOM, KOZHIKODE, PIN - 673571
3 GOPALAN NAIR @ VISWAN
AGED 68 YEARS
S/O. APPU NAIR, KUZHIMPATTIL HOUSE, KOZHIKODE
TALUK, KUNNAMANGALAM VILLAGE, KARNTHUR DESOM,
P.O. KARANTHUR KOZHIKODE, PIN - 673571
R.S.A.No.719/2025
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2026:KER:165
4 KUNNAMANGALAM GRAMA PANCHAYATH
REPRESENTED BY SECRETARY,
KUNNAMANGALAM VILLAGE, P.O. KUNNAMANGALAM,
KOZHIKODE, PIN - 673571
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
05.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.S.A.No.719/2025
3
2026:KER:165
EASWARAN S., J.
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R.S.A No.719 OF 2025
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Dated this the 5th day of January, 2026
JUDGMENT
This appeal arises out of the concurrent findings of the
Principal Munsiff Court-II, Kozhikode, in O.S.No.310/2017 as
affirmed by the District Court, Kozhikode in A.S.No.108/2024.
2. The brief facts necessary for the disposal of the appeal
are as follows:
2.1. The appellant is the plaintiff in a suit for prohibitory
injunction restraining the defendants from trespassing into the
plaint schedule property and from committing waste therein and
also for damages for the loss sustained by the plaintiff as a result
of the defendants' action. It is stated that, on 02.05.2017, the
defendants threatened the plaintiff that they will construct a road
at the southern side of plaint schedule property in the east west
direction and that the defendants have no right over the plaint
schedule property. They were acting in collusion with the road
contractors and also the 4th defendant - Panchayat. Due to the
alleged act of the defendants, the plaintiff suffered a loss of
Rs.12,000/-. The defendants entered appearance and contested
the suit. Defendants 1 to 3 contended that they had formed a
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committee for the purpose of widening of the road at the instance
of the 4th defendant - Panchayat. The 4 th defendant also filed a
separate written statement contending that, the Panchayat had no
intention to widen the pathway and the damages sustained by the
plaintiff have to be independently proved. The entire averments in
the plaint as such was denied.
2.2. On behalf of the plaintiff, Exts.A1 to A4 series were
produced and PW1 and PW2 were examined. Ext.C1 is the
Commission Report and Ext.C1(a) is the sketch. The defendants
did not adduce any evidence. The Trial Court, on appreciation of
the oral and documentary evidence, came to the conclusion that
the plaintiff had failed to prove that it was due to the alleged act of
the defendants 1 to 3 that the compound wall was demolished and
that he further failed to prove that he had sustained damages to
the amount of Rs.12,000/-. Accordingly, the suit was dismissed.
Aggrieved, the plaintiff preferred A.S.No.108/2024 before the
District Court, Kozhikode, which was dismissed by judgment dated
29.10.2025 and hence, this present appeal.
3. Heard, Adv.Edamana Narayanan - learned counsel
appearing for the appellant.
4. Adv.Edamana Narayanan - learned counsel appearing
for the appellant, contended that the claim for damages was on
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account of the loss sustained by the plaintiff due to the alleged
overt act of defendants 1 to 3. The finding of the Trial Court that
the plaintiff had not adduced independent evidence to prove the
claim for damages cannot be sustained in the light of the specific
assertion of the defendants 1 to 3 in their written statement,
stating that they had formed a committee for the purpose of
widening of the road. Therefore, it is pointed out that the claim
for damages will have to be decreed on the probabilities and that
the plaintiff cannot be expected to adduce expert evidence for
proving the quantification of the loss caused due to the alleged act
of defendants 1 to 3.
5. I have considered the submissions raised across the
Bar by the learned counsel appearing for the appellant and this
Court is of the considered view that no substantial question of law
arises for consideration in the present appeal.
6. It is trite law that, in a claim for compensation in the
form of damages for a tortious act, the burden will be on the
plaintiff to prove that the defendants had committed the alleged
tortious act. A specific query was raised by the Court as to
whether defendants 1 to 3, in their writtent statement, had
admitted the alleged act. The learned counsel for the appellant
submitted that the defendants had not admitted the act, but had
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categorically stated that they had formed a committee for the
purpose of widening of the road.
7. In the considered view of this Court, the aforesaid
statement in the written statement by itself will not lead to an
inference that, it is defendants 1 to 3 who have committed the
alleged act of demolition of the compound wall. The claim for
damages on account of a tortious act will have to be necessarily
sustained by independent evidence. In the present case, except
the interested testimony of the plaintiff, no independent witnesses
have been examined and therefore, the claim of the appellant that
the suit for damages will have to be decreed on probabilities,
cannot be accepted.
8. That apart, if the Panchayat requires additional
properties for the purpose of widening of the road, then it can be
undertaken only in accordance with law after obtaining necessary
relinquishment of the property in terms of the provisions
contained under Section 3 of the Kerala Land Relinquishment Act,
1958. The plaintiff has no such case that the Panchayat had
obtained the requisite permission from him for the purpose of
surrender of the property. Any attempt made by the Panchayat
dehors the provisions of law for forcefully taking possession of the
plaintiff's property necessarily will constitute a fresh cause of
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action enabling the plaintiff to move the court as and when there
is a threat to his property. In the present case, however, the claim
being primarily for the damages sustained by the plaintiff towards
the alleged act of demolition of the compound wall, this Court is of
the considered view that the suit cannot be decreed merely on the
basis of probabilities. That be so, the findings rendered by the
courts below cannot be found to be faulted with. The right of the
plaintiff to seek appropriate relief against the Panchayat, if any
threat exist as far as deprivation of the property is concerned,
necessarily such right will have to be left open.
In such circumstances, finding that no substantial question
of law arises for consideration in the present appeal, the appeal is
dismissed. However, the right of the appellant - plaintiff against
the respondents, if any threat is caused to his property, is left
open to be separately agitated in appropriate proceedings.
With the above observations, the appeal is dismissed. No
costs.
Sd/-
EASWARAN S, JUDGE
ACR
