ASSISTANT ENGINEER,P.W.D. Vs. KARUNAKARAN KIDAV

JUDGEMENT

(1.) Defendants are the appellants. The suit was filed by the deceased plaintiff for a declaration that the rose wood tree in dispute belongs to him and for a consequential mandatory injunction to remove the number/mark affixed on that tree. Ext. C5 is the plan prepared by the District Superintendent of Survey and Land Records which was produced by the Advocate Commissioner along with Ext. C6 report. The plot shown in Ext. C5 is admittedly the property held by the deceased first plaintiff, whose legal representatives are plaintiffs 2 to 6. Koyilandy-Thamarassery road is situated along the northern boundary of the plaint A schedule property. The plaint schedule property was purchased by the deceased plaintiff as per Ext. A1 sale deed dated 29.10.1971. The plaintiff contended that even in Ext. A1 specific reference was made about the trees situated in the property. Ten coconut trees and this rose wood tree are made mention of in Ext. A1. The defendants on the other hand contended that this rose wood tree is situated in P.W.D. road puramboku and so the plaintiff has no right over the property. The defendants affixed the mark and number to indicate that this rose wood tree belongs to the Government. It was then the suit was filed for declaration and consequential relief as stated earlier. Before the trial court, PW 1 to PW 3 were examined and Exts. A1 to A17 were marked. The Engineer attached to PWD was examined as DW 1 and Exts. B1 and B2 the registers maintained by PWD showing the number and description were also marked. The Commissioner's report and plan were marked as Exts. C1 to C6. The learned Munsiff after meticulous examination of the entire evidence found that a major portion of the trunk of the tree falls in plot A purchased by the deceased first plaintiff as per Ext. A1. Since the defendants had no case that the said tree was planted by them and since it was all the more possible that due to natural growth a small portion of the trunk of the tree happened to protrude into the PWD road puramboku, it cannot be said that the tree belongs to the Government. It was found that it is all the more reasonable to accept that the tree was planted in plot A and during the natural growth a portion of the girth of the trunk happened to project into the PWD road puramboku. Hence, the trial court found that the plaintiffs are entitled to get the declaration and injunction sought for.

(2.) The defendants challenged the same in the appeal. The appellate court had a reappraisal of the evidence and agreed with the trial court and thus the appeal was dismissed.

(3.) In this second appeal, the substantial questions of law framed are: