Paivalike Grama Panchayath vs U.Krishna Shetty,(Died) Lrs Impleaded

M A Abdul Hakhim, J

The defendant in the suit is the appellant in this Regular Second Appeal.

The plaintiff filed the suit seeking a permanent prohibitory injunction restraining the defendants and its men and agents from trespassing or further encroaching upon or causing any further loss and damages to the plaintiff or to the plaintiff’s property or in any way interfering with the peaceful possession and enjoyment of the Plaint A Schedule property, directing the defendant to pay damages shown in the Plaint B schedule, for a mandatory injunction directing the defendant to remove the dumped earth from the areca garden and to restore the areca garden and the encroached and newly widened portion of the road in plaint A schedule property to its original condition or to get it done at the cost of the defendant by deputing an amin of the court or in the alternative to direct the defendant to pay the amount of damages estimated by the court, directing the defendant to pay the plaintiff mesne profit at Rs. 200 for the unlawful use and occupation by way of dumping the earth in the plaintiff’s property from 30.03.2003 to 30.07.2003 and directing the defendants to pay future mesne profits at Rs.200 per month till removal of the entire earth dumped in the plaint schedule property.

Plaint A schedule contains 3 items of property having an extent of 2.20 acres, 6 cents and 80 cents . Item No.1 is shown as dry land and item Nos.2 and 3 are shown as areca garden. The plaint schedule property is shown as excluding panchayat road with a width of 37 links.

In plaint B schedule, a total amount of Rs.11,300/- is included. Rs.10,000/- is claimed towards damages caused to 18 yielding areca trees, one yielding coconut tree one non yielding coconut plant and one breadfruit tree. Rs.800/- is claimed as mesne profits. Rs.500/- is claimed as cost of registered notice.

As per plaint allegations, the defendant trespassed into the plaint schedule property to widen the existing Panchayat road, having a width of 37 links passing through the plaint schedule property. The defendant employed JCB to cut the hill and to dump the earth removed from the hill, cutting to the areca garden and causing damages to the areca garden belonging to the plaintiff. The newly extended portion of the road unlawfully encroached on by the defendant has a width of 15 links on either side of the original road and a length of 165 links.

The defendant filed written statement contending, inter alia, that the plaintiff is not the owner in possession of the plaint A schedule property; that the width of the Panchayat road passing through the plaint schedule property is not 37 links ; that the defendant has not caused any damage to the plaint A schedule property; that the defendant did not remove earth from hill cutting; that the defendant did not encroach into the plaint A schedule property; that there is no cause of action for the suit, that the defendant is not liable to pay damages or mesne profit to the plaintiff and that the suit is not maintainable.

The Trial Court decreed the suit as per judgment dated 28.02.2004 granting prohibitory and mandatory injunctions sought for by the plaintiff and further directing the defendant to pay an amount of Rs.5,000/- as damages to the plaintiff and an amount of Rs.100/- per month as mesne profits to the plaintiff from 30.03.2003 till the date of restoration of the property to the plaintiff with costs. The defendant filed AS 76/2004 before the First Appellate Court and the same was dismissed as per Judgment dt. 31.08.2006.

The present Regular Second Appeal filed by the defendant Panchayath is admitted on the following substantial questions of law.

What is the evidentiary value of Ext.C2?

Has the plaintiff proved title and possession following such title in accordance with law?

I heard the Counsel for the appellant. There is no appearance for the respondent.

The counsel for the appellant submitted that the dispute with respect to the alleged encroachment and restoration of the property are settled between the plaintiff and the defendant and the defendant is aggrieved by the amount of damages and the mesne profits ordered to be paid by the Trial Court. The counsel contended that though the plaintiff claimed that he obtained the plaint schedule property as per Ext.A1, there is a contradiction in the evidence of PW1 with respect to the details of the property, and the same does not tally with Ext.A1. The learned Counsel contended that the plaint schedule properties are not properly identified by the plaintiff. The counsel contended that it is the plaintiff who dumped the earth removed by the defendant from the panchayat road from the southern side of the Panchayat Road to the northern side of the Panchayat road with the intention to spread over the same to his areca garden. The said action of the plaintiff was questioned by the ward member of the Panchayat as well as the Convenor of the beneficiary committee, and apprehending legal action from the defendant, the plaintiff issued an Advocate Notice making false allegations and instituted the present suit.

On going through the impugned judgments, it is clear that the contention of the defendant is that the plaintiff orally permitted the defendant to form the Panchayat Road passing through plaint A schedule property with a width of 80 links. The defendant has not disputed the widening works done at the instance of the defendant. The defendant has no case that the land which was taken for widening does not belong to the plaintiff. It is proved from the Commission Report and Plan which are marked as Ext.C1 to C3 that fresh widening of the road was there in the portion of Plaint A schedule property; that the width of the place from where the earth was removed is 22 links and length of 178 links . The Commissioner noted fresh hill cutting on the northern side of the road. The Commissioner assessed the estimated cost for removal of dumped soil from the plaint schedule property at Rs. 15000/-. The Commissioner noted that the dumped soil is raised up to 1 to 1.5 meter from the bottom of eleven trees, one coconut plant is fully covered by dumped soil, one areca tree is completely covered by dumped soil and 1 meter from the bottom of the coconut tree is dumped in soil. The Trial Court relied on the Commission Report and the evidence of the Advocate Commissioner as CW1 to fix the damages and mesne profits. The defendant had no case before the Trial Court that the widening works were done without the authority and permission of the defendant. It is proved by the evidence adduced before the Trial Court that the damage to the plaint schedule property is done by the defendant. There could not be any dispute with respect to the identity of the plaint schedule property as the same is correctly identified by the Advocate Commission in Ext.C2 plan and the defendant did not raise any objection with respect to the said identification. The defendant has not adduced any evidence to prove the alleged oral permission given by the plaintiff to the defendant to widen the road.

In view of the aforesaid facts and circumstances there is nothing to interfere with the impugned judgments and decrees passed by the Trial Court as well as the First Appellate Court. The aforesaid substantial questions of law do not arise in this appeal. Accordingly, the Regular Second Appeal is dismissed.