AYYAPPAN Vs. FR. THOMAS

JUDGEMENT

(1.) Plaintiff is the appellant and revision petitioner. Apprehending unauthorised construction of a road through his property by the respondents he sued them for injunction. In violation of the order of injunction issued by court, it is alleged that, the respondents, with help of others also, cut open a road through his land. By amendment he sought mandatory injunction also. Respondents said that the road was already there. Any how they denied their liability and pleaded that others are responsible for the acts of widening. Trial Court decreed the suit both for mandatory and prohibitory injunctions and allowed the petition under O.39 R.2A also though no attachment or imprisonment was ordered. The property was ordered to be restored to its original position. The C. M. Appeal against the order was allowed in full and appeal against the decree was allowed in part by vacating the order for restoration. Hence the second appeal and revision.

(2.) Normally in second appeal I would not have thought of interfering with the appellate decree and the order. But in this case the injustice resulted is such that interference is found inevitable for doing justice. The evidence consist of the testimonies of PWs.l to 5 and Dws. 1 to 10 as well as Exts. Cl to C4 reports and plans submitted by pw.5, and Advocate Commissioner. PW.1 is the plaintiff and Dws.1 to 5 are the defendants. PWs.2 to 4 are the independent neighbours who heard and saw the instigation by the first defendant and actual commissions by defendants 2 to 5 and others. pw.5 visited the property on the date of suit namely 28-11-1978 and thereafter on three more occasions. On the first day there was no road through the plaint property and fences on the three sides were found in tact. When he visited a second time the road was found cut open and fence destroyed. Both the Trial Court and appellate court found on evidence that in violation of the order of injunction the road was cut open after suit and after injunction order was taken for service. That finding is not under challenge.

(3.) First defendant is a Catholic priest in the locality having several years service there. The case of the appellant is that the road was cut open under the leadership of the defendants, particularly first defendant, and the other defendants as well as others physically joined in the acts. It is said that the acts were done with the knowledge of the injunction order which was taken to them but not accepted. It is the case of the appellant that first defendant is habitually getting himself involved in giving leadership for controversial construction of roads in violation of orders of injunction from courts. In this case he is said to have given such leadership by his presence and announcement over loud speaker instigating and inciting others to violate the order of injunction saying that he is not concerned with the orders of injunction issued by courts. PWs 2 to 4 have spoken to these facts and they have also stated that defendants 2 to 5 and others cut open the road and destroyed the fence. After considering the entire facts and circumstances which include Exts. C1 to C4 and the testimony of PW 5 as well as the admissions made by the first defendant as dw. 1 and his demeanour as well as the evidence of a process server examined as dw. 9 the Trial Court believed PWs 1 to 4 and found that the road was cut open in violation of the order of injunction. Some of the defendants admitted their involvement as representatives of the people and public workers, though they denied violation of injunction and said that what was involved was only widening an existing road. So also the fact of a new road being cut open after the suit and injunction was found by both the courts.