THURAVOOR GRAMA PANCHAYATH Vs. PETER JERRY

JUDGEMENT

(1.) The scope and application of R.22 and R.33 of O.41 of the Code of Civil Procedure (for short, "the Code") with other incidental questions arises for a decision in the Second Appeal and First Appeals.

(2.) Respondents 1 to 3, claiming to be the owners in possession of plaint A and B schedules sued the appellant for a decree for mandatory injunction and recovery of damages. They claimed title and possession of plaint A and B schedules as per Exts. A1 to A3. On the eastern side of plaint A and B schedules there is a road. It is said that without the consent of respondents, appellant trespassed into the eastern portion of plaint A and B schedules and widened the road annexing a portion of plaint A and B schedules. It is further alleged that for the said purpose trees standing in that portion of plaint A and B schedules were cut and removed causing loss of Rs.8,600/- to the respondents. Appellant resisted the suit denying the claim of respondents regarding title and possession and contended that the road was in existence even earlier. It denied the allegation of respondents that it committed mischief in the suit property.

(3.) The Advocate Commissioner inspected the suit property with the assistance of a Surveyor and submitted Exts. C1 and C1(a), report and plan. The Advocate Commissioner and Surveyor were examined as PWs 2 and 3. Evidence of PWs 2 and 3 and Exts. C1 and C1(a) revealed that as per measurement with reference to the documents of title, plaint A schedule extended to 60 cents (as against 61 cents referred to in the document of title) and that plaint B schedule extended to 72 cents (as against 67 cents referred to in Ext. A3). Trial Court, relying on Exts. A1 to A3, C1 and C1(a) granted a decree for mandatory injunction in favour of respondents directing the appellant to restore the disputed portion of plaint A and B schedules to its original position. For want of evidence relief of damages was disallowed. Appellant challenged the decree for mandatory injunction in AS No. 120 of 2003 in the Sub Court, Cherthala. Respondents neither filed an appeal nor a cross objection in AS No.120 of 2003 challenging that part of decree against them (disallowing damages). First Appellate Court confirmed finding of the Trial Court as regards mandatory injunction. It reversed finding of the Trial Court that there is no evidence regarding the claim for damages and granted a decree in favour of respondents for recovery of Rs.8,600/-. Judgment and decree of the first Appellate Court are under challenge in the Second Appeal on the following substantial questions of law.