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GOVINDAN v. SATHIDEVI - SA No. 287 of 1993(A)  RD-KL 4617 (5 March 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 287 of 1993(A)
For Petitioner :SRI.P.VELAYUDHAN
For Respondent :SRI.V.CHITHAMBARESH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
S.A.No.287 OF 1993
Dated this the 5th day of February, 2007
Defendant in O.S.604/84 on the file of Munsiff Court, Palghat was the appellant. On his death, his legal heirs were impleaded as additional appellants 2 to 7. Plaintiff in the suit is the respondent. Respondent filed the suit seeking a decree for permanent prohibitory injunction restraining defendant from entering upon the thadaya varamba or cutting and removing the trees and demolishing the varamba and also for damages of Rs.500/- contending that she sustained a loss of Rs.500/- as defendant cut the trees belonging to the plaintiff. It was contended that plaint schedule property belongs to the plaintiff under Ext.A1 partition deed and defendant has no manner of right or possession over the same. Defendant in the written statement contended that there is no teak tree standing on the varamba and the existing S.A.287/93 2 teak trees form part of the paddy fields on the western side of the varamba belonging to defendant and plaintiff has no manner of right or possession over the same. It was contended that nuisance is being caused to the paddy field by the shades of branches of the trees and defendant lodged a complaint before executive Magistrate, Palghat and Revenue Inspector submitted a report and then the suit was filed without bonafides. It was also contended that defendant did not cut and remove any trees and therefore he is not liable to pay any damages. It was further contended that defendant has a right to cut and remove the branches of the trees overhanging his paddy filed, causing nuisance and obstruction to cultivation in the paddy fields and therefore plaintiff is not entitled to the decree sought for.
2. Learned Munsiff framed necessary issues. On the evidence of Pws.1 and 2 and Ext.A1 and C1 and C2 learned Munsiff found that plaint schedule property is the property obtained by plaintiff S.A.287/93 3 under Ext.A1 and the disputed teak trees stand in the thadaya varamba which form part of Plaint `A' schedule property and defendant has no manner of right over the same. Learned Munsiff also found that if at all any nuisance is caused defendant has a right to abate the nuisance as provided by the law of torts but he is not entitled to trespass into the plaint schedule property. Learned Munsiff found that by cutting trees defendant caused a loss of Rs.161/- to the plaintiff. The suit was decreed restraining defendant from trespassing on the thadaya varamba or cutting and removing the trees and demolishing the varamba subject to any legitimate right available to him to abate any nuisance under the law of torts. Though defendant filed a counterclaim to abate the nuisance, he did not adduce any evidence. Learned Munsiff therefore dismissed the counter claim. Defendant challenged the decree and judgment before Sub Court, Palakkad in A.S.32/91. Learned Sub Judge on reappreciation of evidence found that there is no evidence to S.A.287/93 4 prove that defendant committed any damages by cutting the trees and held that plaintiff is not entitled to the decree for damages granted by trial court. That portion of decree was set aside. But learned Munsiff found that defendant has no right to trespass into the property of plaintiff and though he alleged that a complaint was lodged before Executive First Class Magistrate and Revenue Inspector submitted a report, no material was produced and there was no evidence to prove that any nuisance is being caused. The appeal was dismissed confirming the decree for injunction granted by learned Munsiff. This appeal is filed challenging concurrent decree for injunction granted by the courts below.
3. The Second Appeal was admitted without formulating any substantial question of law. The substantial question of law suggested by appellant in the appeal memorandum was whether appellant is entitled to abate nuisance by cutting trees and branches of trees which caused shade and nuisance S.A.287/93 5 to the adjoining land of plaintiff and whether appellant is entitled to get unfettered right to enjoy his land without interference.
4. Though it was contended by appellant before trial court that thadaya varamba does not belong to plaintiff and is not part of the property covered under Ext.A1, both the courts found that it forms part of the property covered under Ext.A1. That factual finding was not disputed. Though the trial court granted damages, first appellate court set aside that part of the decree and confirmed only the decree with regard to the injunction. The contention of appellant was that nuisance is caused by the trees standing in the thadaya varamba of property of plaintiff and defendant has a right to abate that nuisance. The decree of learned Munsiff shows that decree granted was subject to the right available to defendant under the law of torts to abate the nuisance. That finding has not been varied by learned Sub Judge. The defendant infact had filed a counter claim S.A.287/93 6 along with written statement seeking a decree for abating nuisance. No evidence was adduced to prove the alleged nuisance. Though it was contended that proceedings were pending before executive Magistrate and report was also submitted by Revenue Inspector, nothing was produced either before trial court or first appellate court. There is absolutely no evidence to prove that trees standing in the varamba of plaint schedule property is causing any nuisance to defendant. In such circumstances, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR
M.SASIDHARAN NAMBIAR, J.W.P.(C).NO. /06
SEPTEMBER,2006 M.SASIDHARAN NAMBIAR,J.
W.P.(C) NO. OF 2006
Dated this the day of 2007
M.SASIDHARAN NAMBIAR, J.W.P.(C).NO. /06
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