Poulose Mathew and Titoo Poulose vs Thrikkur Grama Panchayat and Others

M.N. Krishnan, J.—This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Irinjalakuda in O.S.745/95. The suit is one for recovery of possession, mandatory injunction and for damages. The brief facts necessary for the disposal of the appeal are stated as follows. The plaintiff by virtue of two assignment deeds has obtained 14 cents of property and out of this 14 cents he had originally executed a document with respect to 3 cents in favour of P2 and later that has come into possession of the 3rd plaintiff. The first defendant is the Panchayath and defendants 2 to 4 are said to be members of Njellur Temple Road Development Samithy. It is the case of the plaintiff that he had purchased the property and even at the time of purchase he was having more extent than 14 cents and so in order to widen the pathway which is situated on the western side of his property he had given some land. Thereafter the Panchayath with the connivance of defendants 2 to 4 had trespassed into the property of the plaintiff, demolished the wall and the sunshade and caused damages. According to the plaintiff the understanding was that other than the property wherein the building is situated, from the rest of the property some land can be given for the purpose of widening of the road with the specific understanding that equal extent should be acquired from both the sides so that no hardship is caused to anybody. Under the leadership of the Secretary of the Panchayath defendants 2 to 4 and others came at 12 noon on the unfortunate day and had marked places. At 8 p.m. on the same day they had trespassed and demolished and thereby had caused damages to a tune of Rs. 25,000/- and defendants had reduced that land into their possession which has to be recovered.

The first defendant would contend that the Panchayath had not trespassed into any of the property and the widening of the road has been done in the area which has been given to the Panchayath for the widening of the road by the plaintiff. Defendants 2 to 4 also would contend that they had not committed any mischief and they cannot be held liable for damages.

In the trial Court PWs1 to 5 and DWs.1 and 2 were examined. Exts.A1 to A10 and B1, C1 and C1(a) were marked. On an analysis of the evidence the trial court did not grant a decree and so dissatisfied with the same the plaintiff has come up in appeal.

Heard the learned Counsel for the appellant as well as the respondents. Learned young counsel appearing for the appellant would strongly contend before me that this is a case where the high handedness of the Panchayath and defendants 2 to 4 had resulted in damages and loss of property to the plaintiff and the trial Court has approached the matter in a wrong perspective which requires correction. He had also elaborately taken me through the documentary and oral evidence as well as the judgment which is under challenge. Now the crux of the matter is as follows.

The road which belonged to the Panchayath originally is situated in Sy. No. 287. Now the property from Sy. No. 286 had been attached to Sy. No. 287 for the purpose of widening the road. It is contended by the plaintiff that though his document of title only shows 14 cents of land he was in possession of excess land and that had been originally given for the purpose of widening of the road so as to make a width of 2 mtrs. and rest of the property he was enjoying with a wall separating the way and the pathway.

Now the suit has got the characteristic of a recovery of possession on the strength of title. Here the plaintiff has to succeed or fail on the basis of his case and not on the loophole or weakness of the defendants'' case. Now it has to be stated that we have to pin down the plaintiff with respect to his title deeds which would show that he was only having 14 cents of land. Now at present, as per the present Commissioner''s report the plaintiff is still in possession of 12.379 cents of land and the property which is said to be the way is having an extent of 4.695 cents in Sy. No. 286. So if the case of the plaintiff as per the Commissioner''s plan is taken into consideration it will come to at least 17 cents of land. The plaintiff is only entitled to 14 cents of land as per his title deeds. The Commissioner who has visited the property would submit that he had fixed the boundary only on the western side of the property and he had not fixed the boundary with reference to the document so far as the eastern northern and southern sides are concerned. Therefore just because the plaintiff is having property in Sy. No. 286 we cannot find that the plaintiff was having excess land in Sy. No. 286 over and above the extent mentioned in the document.

Now, the next point. It is not the case of the plaintiff that he has not given any land to the Panchayath at all. According to him he had given the land to Panchayath also for the purpose of widening the road. It is also submitted by him that he had agreed to give land to the Panchayath again with some restrictions. So in order to find out which is the actual property that is alleged to have been trespassed by the Panchayath one has to definitely find out what was the extent of land originally surrendered by the plaintiff in favour of the Panchayath. Absolutely no materials are forthcoming except the statement that land having some area to make the width at 2 mtrs. is surrendered. It has also to be stated if it is so and since the roads in the Panchayath is vested in the Panchayath, plaintiff should have been taken care to see that the registers are produced to note the previous width of the road which is not done in this case. Therefore in the absence of the materials to fix the actual extent which is alleged to have been admittedly surrendered by the plaintiff in favour of the Panchayath, the Court cannot find out what is the alleged trespassed area that is alleged to have been done by the Panchayath in widening the road. So being a suit for recovery of possession on the strength of title unless that is able to be fixed the Court will not be in a position to grant a decree as prayed for by the plaintiff with respect to recovery of possession. Therefore I hold that the trial court was justified in refusing to grant recovery of possession.

Now to the damages. Defendants 2 to 4 are impleaded as the persons who had demolished the portions as the members of the road Development Samithy. Absolutely no steps are taken or no tangible evidence is forthcoming to show that a Samithy has been constituted for the purpose of widening the road. So really there is no evidence to show that the members and President of the Samithy had been responsible for the alleged demolition. There is no evidence to show that these persons are connected with the so called Samithy and therefore they cannot be held liable. Further the trial court has analysed the evidence of PW2 and PW3. PW2 is an employee of the Catholic Syrian Bank and PW3 is another person on whose evidence also the trial court has not placed any reliance. It is a well settled principle that the trial court is able to see the witness in person and know their demenour. Unless and until there is total mis-appreciation of the evidence the appellate judge is not expected to interfere with the same. So taking into consideration the discussions above I agree with the decision of the trial court in not giving any damages as well. Therefore the judgment and decree of the trial court are confirmed and the appeal fails and the same is dismissed without costs.