Sivan vs Vineetha Krishnankutty

Sathish Ninan, J

RFA 459/2018 arises from OS 386/2013. The suit is one for a mandatory injunction to reconstruct a demolished compound wall. RFA 270/2018 arises from OS 191/2012 which is a suit for damages. The suits were decreed by the trial court against which the defendants are in appeal.

The plaint schedule property was purchased by the plaintiff as per Ext.A1 Sale Deed of the year 1988. On the western side of the plaint schedule property is a public lane. Separating the public lane with the plaint schedule property is a compound wall. The defendants are residents on the northern and western sides of the plaint schedule property. In an attempt to widen the western lane, on 11.12.2011 the defendants and people under them demolished the western compound wall. It is thereupon that the suits were filed to restore the compound wall and also claiming damages.

The defendants denied having committed the alleged act. It was contended that the way on the western side of the plaint schedule property has a width of 9 feet. It was also contended that the compound wall collapsed due to the natural growth of teak tree which was standing on the boundary.

The suit was filed against the defendants under Order I Rule 8 of the Code of Civil Procedure. The trial court granted a decree against defendants 1 to 5 and 7 for mandatory injunction and for damages.

I have heard learned counsel on either side.

The points that arise for determination are:-

(i) Is the finding of the trial court that the compound wall is liable to be restored by the defendants, sustainable on the evidence?

(ii) Was the trial court right in having granted a decree for damages?

The learned counsel for the appellants would argue that the plaintiff has failed to have the western boundary of his property identified. For that sole reason the plaintiff is not entitled to get a decree for restoration of the wall. It is also contended that in the absence of proof of the alleged act of demolition by defendants 1 to 5 and 7, a decree for damages could not have been passed against them.

The arguments of the appellants are misconceived. That there existed a boundary wall on the western side of the plaint schedule property is admitted by the defendants. The fact that the boundary wall was destroyed, is evidenced by Ext.C1 Commissioner's Report. The plaintiff had taken out a survey commission, who prepared Ext.C4 report and Ext.C4(a) plan. Commissioner has identified the plaint schedule property as described

in Ext.A1. Though the learned counsel for the appellants would argue that the Commissioner failed to identify the property based on the descriptions in Ext.A1 title deed, a perusal of the plaint schedule description and also the scheduled description in Ext.A1 reveals that, the description of the plaint schedule is exactly the same as the description of the property in Ext.A1. That apart in the legend on Ext.C4(a) plan it is indicated that, the plaint schedule property as described in Ext.A1 Sale Deed, has been identified.

That there existed a compound wall on the western side of the plaint schedule property and that the same was demolished has been proved by Ext.C1 report of the Commissioner. In Ext.C1, the Commissioner has noticed the demolished portion, the remnants of the demolished wall, and also the foundation of the compound wall at the demolished portion. The Commissioner was examined as CW2. He has proved the contents of the report. Ext.C3 report of the Commissioner noted the existence of foundation of the demolished wall. Therefore, the demolition of the boundary wall that existed on the western side of the plaint schedule property is proved.

Admittedly the plaintiff was abroad at the time of the incident. It is the plaintiff's case that a neighbour, one Achamma Jose had informed him about the incident, immediately upon which the plaintiff rushed to the native place. While it is true that the said Achamma Jose has not been examined, to prove the incident the plaintiff has examined PW2 who was an eye witness to the incident. He happened to see the incident on his visit to the Mata Amritanandamayi Math situated near to the plaint schedule property. Though he was cross-examined at length, nothing could be brought out to discredit his testimony. The trial court which had the opportunity to watch the demeanour of the witness, held his evidence to be reliable. The trial court noticed that, during the course of his examination, he identified defendants 1 and 7 who were then present in the Court. Dws.1 and 3 who were defendants 1 and 3 respectively deposed that they are not beneficiaries of the disputed road. However, in the written statement, it was contended otherwise. Though the first defendant raised a plea of alibi, that on the date on which the incident occurred he was participating in a meeting of Barber's Association, DW3 its Secretary has deposed that he cannot say whether the first defendant had participated in the afternoon session of the meeting on that day. It is to be noted that no such plea of alibi was raised in the written statement. Such a case was attempted to be projected at the time of his evidence. The finding of the trial court that, defendants 1 to 5 and 7 had committed the act of mischief is supported by evidence. The said finding warrants no interference.

Though the plaintiff had claimed ₹ 8 lakhs as damages, the trial court has granted a decree for only ` 40,000/-. There is no appeal by the plaintiff. Hence the said issue does not arise for consideration.

On the entire evidence on record, it can only be concluded that the findings arrived at by the trial court are justified and that the judgment and decree warrants no interference.

Resultantly, the appeals fail and are dismissed.