M. Abdul Jaleel v. Chaeko Thomas — 1976 DIGILAW 127 (KER)

JUDGMENT : V. Khalid, J. The Defendant is the Appellant. This second appeal arises from a suit for damages. The suit was originally dismissed by the trial court. In appeal, the judgment and decree of the trial court were reversed and hence this second appeal. 2. The plaint schedule property is in the possession of the Plaintiff. It is planted with arecanuts, pepper vines and other trees. On the south of this property are situated properties belonging to the Forest Department given on contract to persons to cut and remove the timber and fire-wood trees. The Defendant had taken sub coupe No. 3 for this purpose. This is situated immediately to the south of the Plaintiff's property. On the west of this sub coupe are situated sub coupe Nos. 2 and 1. According to the agreement between the Defendant and the Forest Department, the cormer had to burn and reburn the coupe area after finishing the work as per the contract. The Plaintiff had specifically asked the Defendant to be careful in setting fire to the coupe. On 30. 3. 1969 the Defendant set fire to the tree-tops and branches and the fire so caused spread into the adjoining property of the Plaintiff and destroyed valuable trees causing damage to the tune of more than Rs. 4000/-. 3. According to the Defendant, neither he nor his labourers had done anything to cause damage to the Plaintiff. The coupe was not set fire to on 30.3.1969. Another person who had a contract for a similar coupe, coupe No. 2, had also set fire to his coupe. The possibility of the forest fire spreading into the plaint property from his coupe cannot be ruled out. 4. It was with these pleadings that the parties went for trial. On a consideration of the evidence in this case, both oral and documentary, the trial court found that the Plaintiff did not prove satisfactorily that the damage caused to him was on account of the negligence of the Defendant and hence dismissed the suit. The appellate court found that there was ample material to hold that the fire could not have been caused except due to negligence of the Defendant and therefore decreed the suit. On the side of the Plaintiff Exts. PI to P6 were marked and PWs 1 to 6 were examined and on the side of the Defendant Exts. The appellate court found that there was ample material to hold that the fire could not have been caused except due to negligence of the Defendant and therefore decreed the suit. On the side of the Plaintiff Exts. PI to P6 were marked and PWs 1 to 6 were examined and on the side of the Defendant Exts. Dl to D3 were marked and D Ws 1 and 2 were examined. PW1 is a neighbour, PW5 is the son of PW6 (the Plaintiff), PWs 2 and 4 are the Commissioners and PW3 is the Range Officer. DW2 is the Defendant and DW1 a kariasthan under the Defendant. 5. The plaint proceeded on the footing that the damage was caused on account of mischief by the Defendant. There are no pleadings sufficient or satisfactory in the plaint about the allegations now put forward that the damage was caused on account of the negligence of the Defendant. However, it is clearly stated in the plaint that the property was set fire to on 30.3.1969. The Plaintiff-Respondent would contended that inspite of the clear averment in the plaint about the date on which the coupe was set fire to, the Defendant did not specify in the written statement about the date on which he set fire to the coupe. It is not disputed that his coupe was set fire to, since it was incumbent on the Defendant as per the agreement with the Forest Department to burn and reburn the coupe two weeks prior to the surrender of property. From the evidence available he had to surrender the property on or before 31.3.1969. It was only at the evidence stage that the Defendant put forward a case that the coupe was burnt as early as 10.3.1969. The matter, therefore has to be decided on the materials available from the documentary and oral evidence in this case. 6. Before I deal with the evidence in this case, it will be useful to understand as to what is the correct position of law regarding the burden of proof in such matters. The matter, therefore has to be decided on the materials available from the documentary and oral evidence in this case. 6. Before I deal with the evidence in this case, it will be useful to understand as to what is the correct position of law regarding the burden of proof in such matters. When there is a claim for damages on account of fire having spread into the adjoining property, the Plaintiff has to first establish that there was negligence on the part of the Defendant, that the fire started in his property and it was this fire that spread into the Plaintiff's property and once this is established, the Defendant has to discharge his burden satisfactorily that the damage was caused not on account of his negligence, but was on account of reasons beyond his control and that he had taken all necessary precautions to avert damage to the neighbouring trees. It is not correct to say that a mere averment of negligence will put the Defendant to the proof of absence of negligence on his part. The law has been succintly laid down by the Mysore High Court in case of Moneyapanda Moda-ppa v. Kuttanda Kariappa AIR 1964 Mys. 80 as follows: Therefore, once it is established that it is the fire that the Appellant started on his land that spread into the garden of the Respondent, the burden of proving that he had taken all necessary precautions and that it is not on account of his negligence that the fire spread into the garden of the Respondent, is heavily on the Appellant. With this principle of law as a background I will examine the evidence in this case. 7. As stated above, there is no dispute about the fact that sub coupe No. 3 of the Defendant is situated to the south of the plaint schedule property. The contract of the Appellant was to expire on 28.2.1969. It was later extended to 31.3.1969. On the west of block No. 3 lies block No. 2 and to its west is block No. 1. Block No. 2 was taken by one Allapicha Rawther. His period of contract also expired on 31st March, 1969. In that coupe also burning and reburning operations took place. It was later extended to 31.3.1969. On the west of block No. 3 lies block No. 2 and to its west is block No. 1. Block No. 2 was taken by one Allapicha Rawther. His period of contract also expired on 31st March, 1969. In that coupe also burning and reburning operations took place. Since the Plaintiff's definite case was that the burning operations took place on 30th March, which is met by the Defendant at the evidence stage with the plea that it took place on 10th March, I will have to examine with reference to the evidence in this case as to which of the versions is true. The counsel for the Respondent placed great stress on the fact that the Appellant did not at the earliest stage state as to the date on which burning operations took place. The fact that the burning took place on 30th March, 1969 is spoken to by PWs 1 and 5 and attempted to be corroborated by the evidence of PW 3 and also by the commissioners' reports. According to PW5, he came to know that the burning was going on causing, damages to his property and he immediately rushed to PW3, the Ranger, PW1 is the person, who owns the property in the immediate neighbourhood. The case that the burning operations took place on the 30th does not find enough support in the evidence of PWs 1 and 3. Both sides took me through the evidence of all the witnesses. PW1, when persued in cross-examination, had to say that the fire was in April, 1969 during the first week and that he did not know as to how the fire spread into the suit property. PW3, the Ranger, in his chief-examination stated that his recollection was that the fire was in the month of April, 1969. He was asked whether it was at the time that plaint schedule property got fire that PW5 went and reported the matter to him, his answer was that he could not say so. All that we have in the evidence of PW3 is, that PW5 went and reported the matter to him and he instructed PWS to file a suit and take appropriate remedies. The further evidence in this case regarding the damage is furnished by the mahazar and report prepared by the Commissioners and also the evidence of the Commissioners. Ext. All that we have in the evidence of PW3 is, that PW5 went and reported the matter to him and he instructed PWS to file a suit and take appropriate remedies. The further evidence in this case regarding the damage is furnished by the mahazar and report prepared by the Commissioners and also the evidence of the Commissioners. Ext. P3 is the mahazar and Ext. P5 the report of the Commissioner. Ext. P4 is a sketch prepared by the Commissioner. In Ext. P4 all that is seen is the plaint property and a property lying to the west of the plaint property. In Ext. P4 the sub coupes are not shown. This is a serious omission in the sketch. If the three coupes were shown in the sketch, one could have appreciated the rough distance of the coupes from the Plaintiffs property. The sketch, Ext. P4, therefore cannot be acted upon. Ext. P3, as stated above, is the mahazer prepared by the Commissioner, PW4. In paragraph 3 it is stated: (Evidence in regional language omitted) * * * * * * 8. Ext. P 5 is the report submitted by the Commissioner. But that report does not throw any light useful for the decision of this case. On the materials extracted above the Appellant's counsel would contend that the evidence in not conclusive in this case regarding the fact that the fire started from the Appellant's property and spread to the Respondents property. At any rate, there is ample scope for an inference that the damage was caused to the Respondent's property on account of circumstances other than the one spoken to by the Respondent-Plaintiff. 9. Ext. PI is the mahazar prepared by PW2, another Commissioner, and Ext. P2 is the report. These are later in date to Exts. P3 and P4. There is no eye witness to this first. The Commissioner, who inspected the property and submitted Exts. P3, P4 and P5, has not been useful for the Plaintiff and his evidence is not satisfactory. PW4 did note as to how many coupes there were to the south of the plaint schedule property and pleaded ignorance about the existence of the various plots. The Commissioner, who inspected the property and submitted Exts. P3, P4 and P5, has not been useful for the Plaintiff and his evidence is not satisfactory. PW4 did note as to how many coupes there were to the south of the plaint schedule property and pleaded ignorance about the existence of the various plots. He admitted that he did not make any enquires about the number of the coupe on the southern side of the plaint schedule property and that he located the plaint schedule property after ascertaining the same from the Plaintiff. 10. As against the above documents the Appellant would rely upon Ext. Dl to D3. Ext. Dl and D2 are the copies of the mahazar prepared by the plantation Forester. Ext. D3 is the copy of the agreement. Ext. Dl is dated 1.4 1969. DW1 is an attestor to the document. It is stated therein: (Document in regional language omitted) * * * * * * This document is attacked by the Plaintiff-Respondent on various grounds. The person, who prepared this mahazer, has not been examined. DW1, an employee of DW2, is only an attesting witness of this document. The original is not forthcoming and therefore the document is not admissible in evidence. Ext. D2 is another mahazar drawn up on 1-3-1969 on the termination of the original agreement which also does not make mention of any damages to the neighbouring property, but states that the coupe is cleared and the survey stones properly shown. The trial court relied upon Exts. Dl and D2 and observed that if these documents are accepted, then that goes a long way in destroying the case of the Plaintiff. I will deal presently about the serviceability of these documents. The attack against these two documents is that they have not been proved properly. 11. It is true that Exts. Dl and D2 have not been proved by examining the Government servants, who prepared those mahazars. The Defendant should have examined those witnesses. But the difficulty is that no objection was taken to these documents when they were originally marked. It is not as though these are documents spruiously manufactured by the Defendant. There is no case for the Plaintiff to that effect. The Defendant should have examined those witnesses. But the difficulty is that no objection was taken to these documents when they were originally marked. It is not as though these are documents spruiously manufactured by the Defendant. There is no case for the Plaintiff to that effect. Primary evidence in such cases would have been the best evidence and if objections were taken to the admissibility of these documents at the earliest stage when they were sought to be marked, I would have sustained those objections here. But having allowed the documents to be marked without any objection, I do not think it proper to reject those documents as being inadmissible in evidence at this stage. I am aware that the appellate court has commented upon these two documents and has observed that these two documents cannot be relied upon. As already mentioned, the trial court did not find the documents inadmissible. The same yardstick will have to be applied while considering the usefulness of Ext. D3. The appellate court has disposed of Ext. D3 which is a copy of the agreement between the Defendant and the Forest Department as of no use. It is true that D3 is not the original. But here again a copy purporting to be a certified copy was produced. No objection appears to have been taken about the said document. It is a document to which Forest Department is a party. Plaintiff has no case that this is a false document and therefore I do not think it proper to completely ignore Ext. D3. 12. The appellate court comments upon this document in paragraph 13 of the judgment. The attack against it is that the primary evidence is not produced and no explanation is offered for their non production and also that the persons who prepared these documents were not examined. The appellate court, therefore, declined to rely upon these documents. As already mentioned by me, it may not be proper to completely eschew Exts. D1, D2 and D3, from consideration for the reasons that they have not been proved. No objection having been taken at the earliest stage regarding their admissibility, it will not be proper to reject them, especially when the Plaintiff has no case that these are documents prepared for the purpose. Although this is not a statement of law of general application, I feel that in this case Exts. No objection having been taken at the earliest stage regarding their admissibility, it will not be proper to reject them, especially when the Plaintiff has no case that these are documents prepared for the purpose. Although this is not a statement of law of general application, I feel that in this case Exts. Dl and D2 can be passed on account of the absence of the objections at the earliest stage. If Exts. Dl and D2 therefore pass muster as acceptable, then Exts. Dl and D2 help to some extent atleast in supporting the Plaintiff's case of absence of negligence on his part during the burning operations. Regarding the admissibility of these documents counsel for the Appellant took me through Sircar on Evidence Act and the commentary on Section 55 of the Evidence Act, page 614 to the effect that document like this when once admitted cannot be objected to at a later stage. As rightly observed by trial court, the originals of Exts. Dl and D2 will be with the concerned officials and are mahazars which are drawn up in the regular course of Government business. 13. The counsel for the Respondent vehemently contended that the Defendant could have produced accounts kept with him to show that the coupe was burnt on 10th March as contended by him and not on 30th March as stated by the Plaintiff. This contention is in reinforcement of his plea that the Defendant did not give the date in the written statement. It is true that the Defendant would have been in a better position if he had produced the accounts to show that the burning operations were conducted on 10th March, 1969. But the mere non production of the accounts will not help the Plaintiff to get a decree for damages. At worst it is one of the circumstances that can be pressed into service to attack the case of the Defendant. I do not think that this one circumstance can be exaggerated to an extent of tilting the Plaintiff's case against the Defendant's in a suit of this nature where evidence has to be considered on the relative merits. The counsel for the Respondent relied upon the decision reported in case State of Punjab Vs. I do not think that this one circumstance can be exaggerated to an extent of tilting the Plaintiff's case against the Defendant's in a suit of this nature where evidence has to be considered on the relative merits. The counsel for the Respondent relied upon the decision reported in case State of Punjab Vs. Modern Cultivators, Ladwa, AIR 1965 SC 17 where non production of books of account in a case of accident-breach- of canal in that case-was made a ground to grant a decree to the Plaintiff. As rightly observed by the trial court, there is a clear distinction between the said case and the case on hand. There the Defendant was specifically directed to file his document as per an application by the Plaintiff. This was not done. That prompted the court to observe that the non-production, inspite of an application, could lead to an adverse inference against the Plaintiff. The non-production of accounts in this case cannot be said to be a very serious omission on the part of the Defendant, because, if Ext. Dl can be relied upon, it evidences the fact that the burning and reburning was completed before 31st March, 1969 and the coupe itself was handed over to the Forest Department on 1.4.1969. 14. The Defendant suggested that the damage might have been caused in the Plaintiff's property either by a strong wind which' would have sparked off fire in the Plaintiff's property or the fire might have been from sub-coupe No. 2 situated also to the south of the plaint property, west of the Defendant's coupe. There is evidence in this case to show that forest fire is something of usual occurrence, as is seen from the evidence of P.W. 3. The Defendant also has given evidence to this effect. However, there is no concrete evidence to this effect. In view of the unsatisfactory nature of the Commissioner's sketch and report in view of the fact that the mahazar and report themselves contain materials useful for the Defendant, he can with some success put forward a case other than the one of negligence of his part. Evidence in this case, according to me is not foolproof or conclusive to show that the fire from the Defendant's property spread to the Plaintiff's property. Evidence in this case, according to me is not foolproof or conclusive to show that the fire from the Defendant's property spread to the Plaintiff's property. The appellate court has considered the case of the Plaintiff and the Defendant with reference to the pleadings in the case. It is observed by the appellate Judge in paragraph 12 of the judgment, that the Plaintiff has no case that the fire from the coupe spread into the Plaintiff's property. His case is that the Defendant set fire to the tree-tops in the Plaintiff's property and thus the Defendant caused damages. The appellate Judge agrees that ex facie this argument is not devoid of substance. But it is explained away by saying that on closer scrutiny the case appears to be one of negligence by the Defendant. This case is further elucidated with the observation that: It is true it is not stated in so many clear words, that the fire from the coupe has spread into the plaint property. But, it could be gathered from the plaint that that also is the Plaintiff's case. That it is so, is clear from the testimonies of PWs 1, 5 and 6. As PW 6 the Plaintiff has in his chief-examination itself stated that fire from the coupe has spread into the plaint property and is has caused damages. These observations by the appellate judge would only indicate that the pleadings were not specific regarding the negligence on the part of the Defendant. At the trial stage the parties joined issue on the question of negligence and absence of plea of negligence is something which cannot be lightly brushed aside. The appellate Judge therefore took support from the observation of the Supreme Court in a decision reported in case, Bhagwati Prasad Vs. Shri Chandramaul, AIR 1966 SC 735 , which is to the effect that if a plea is not specifically made, it would not disentitle a party from relying upon, if it is satisfactorily proved by evidence. Regarding this proposition of law' there cannot be any objection. But, in a case like this where the court that took evidence and saw the witnesses, came to the conclusion on the pleadings and the evidence, the appellate court has to be careful before upsetting the original judgment and in doing so should have been fortified by conclusive materials. Regarding this proposition of law' there cannot be any objection. But, in a case like this where the court that took evidence and saw the witnesses, came to the conclusion on the pleadings and the evidence, the appellate court has to be careful before upsetting the original judgment and in doing so should have been fortified by conclusive materials. The absence of plea therefore is not to be explained away, but has to be considered in the context of the finding of the trial court. The question from the Supreme Court's decision adverted to above might equally apply to the case of the Defendant about the date of burning. Although the date was not given in the written statement as 10.3.1969 it was stated at the evidence stage, and there is some acceptable evidence to that effect. I advert to this aspect only to show that the appellate court should not have interfered with the findings of the trial court in the absence of clinching and conclusive materials. The normal practice should be to fall in line with the finding of the trial court, if that finding is not perverse or not supported by evidence. 16. The observation in paragraph 13 also does not appear to be wholly supported by evidence. The statement that the testimonies of PWs 1 and 5 would show that fire has really spread into this property from the coupe cannot be said to be completely supported by evidence. Nor is it true, that Ext. P3 mahazar lends support to that view. I have in the earlier portion of this judgment extracted the relevant portion from Ext. P3 mahazar, which would indicate the opposite view also. While considering this aspect of the case the appellate Judge felt that he was fortified in taking the view which he did by the decision reported in AIR 1964 Mysore 80. I have already observed that the Mysore decision has laid down the law, with respect, correctly that burden on the part of the Defendant in a case of damages arises only when the Plaintiff proves that the fire which started from the Defendant's property spread into the Plaintiff's property. I think I have sufficiently indicated that this case has not been satisfactorily proved. At this stage I would like to refer to a decision of the Supreme Court reported in State of Punjab Vs. I think I have sufficiently indicated that this case has not been satisfactorily proved. At this stage I would like to refer to a decision of the Supreme Court reported in State of Punjab Vs. Modern Cultivators, Ladwa, (supra) at page 19, which was relied upon by the counsel for the Respondent to show that the burden was on the Defendant. In that case a canal which was under the control of the Government causing damages to the Plaintiff's property. There the Supreme Court held that it was the duty of the Government with a retinue of officials to take care of the canal to avoid breach. It was also said that the Government will have in their possession documents to show exactly were the breach occurred. In that case the Plaintiff filed application to direct the Defendant to produce documents. In spite of the application no document was produced. It was in those circumstances that the Supreme Court had to say that the Defendant did not discharge the burden on his part. The case on hand can be easily distinguished from that case. Mere facts are different and the circumstances are different and therefore the principle enunciated there cannot as a matter of course be applied in this case. 17. The appellate court has gone wrong in its approach regarding the findings of the trial court on the suggestion that the fire from block No. 2 of Allapicha Rawther might have spread into the Plaintiff's property. I have already indicated that there is some evidence in this case that at or about the same time that block also was burnt. Adverting to the observations of the Munsiff regarding this case the appellate Judge extracts in paragraph IS the following lines occurring in paragraph 6 line about 26 at page 3 of the trial court judgment. ... So that we can rule out the possibility of fire from block (ii) spreading into the plaint property. The appellate Judge then tries to make out an inconsistency in the finding of the trial court, by observing that the trial court has in paragraph 8 of the judgment pointed out something contrary to what is extracted above. ... So that we can rule out the possibility of fire from block (ii) spreading into the plaint property. The appellate Judge then tries to make out an inconsistency in the finding of the trial court, by observing that the trial court has in paragraph 8 of the judgment pointed out something contrary to what is extracted above. The relevant extract is: Even if Allapicha Rawther's coupe situated a bit away, then also it cannot be ruled out that sharks of fire from that coupe could not be carried by wind to the plaint property, which is lying close to that coupe even according to the Plaintiff. The difficulty, arose on account of the fact that the appellate court did not extract the sentence fully from the trial court judgment. The sentence if fully read at page 3 line 25 of the trial court judgment is as follows: There is no evidence on record to come to conclusion, at least, at what distance the block No. 2 is situated, so that we can rule out the possibility of fire from block 2 being spreaded into the Plaintiff property. The effect of this sentence is diametrically opposite to what the appellate court meant. Perhaps the appellate court fell into this error because the sentence quoted by him starting from 'so that' was taken by him to be a sentence by itself because in the judgment v. is in the capital letter. It is a mistake and the sentence extracted by the appellate court is only a part of the sentence which is clear from the extract above. ;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;18. The counsel for the Appellant contended that the Plaintiff would not have come to court paying court fee if his case was not true. He has no evil motive against the Defendant. There is no evidence in this case that he had any axe to grind against the Defendant. All this is true. But this argument cannot be pressed into service when the matter has to be decided on evidence. The fact that the Plaintiff suffered damages is not disputed and cannot be disputed. But the enquiry in the case is to how the damage was caused. The evidence of PWs 5 and 6 cannot afford the sole basis of a finding. The evidence of PW1 is equivocal. The evidence of PWs 2 and 4 also is not conclusive. The fact that the Plaintiff suffered damages is not disputed and cannot be disputed. But the enquiry in the case is to how the damage was caused. The evidence of PWs 5 and 6 cannot afford the sole basis of a finding. The evidence of PW1 is equivocal. The evidence of PWs 2 and 4 also is not conclusive. The evidence of PW3 cannot also be relied upon for finding in favour of the Plaintiff. 19. The Respondent's counsel also brought to my notice several circumstances to show that 10th March could not have been the date on which burning took place. I have already adverted to the evidence of PWs. 1, 3 and 5. Their evidence would indicate that the burning took place in the first week of April. Exts. Dl and D2 would indicate that before 31.3.1969 burning and reburning operations vyere over. The Commissioner's evidence is not consistent with either of these two versions. Under these circumstances I find it difficult to come to a definite conclusion that it was the negligence on the part of the Defendant that was responsible for the damages. 20. The principle res ipsa loquitur was pressed into service in support of the Plaintiff's case. I do not think under the peculiar circumstances of this case emerging from the evidence, this principle can be pressed into service in this case. In cases like this the doctrine cannot apply and the normal rule should apply. The position being so, I refrain from considering the authorities which have discussed this doctrine. 21. I have given my anxious consideration to the facts and circumstances of this case. I am not satisfied that the Plaintiff has proved negligence on the part of the Defendant. Nor am I satisfied that the appellate court was justified in interfering with the finding of the trial court. In the result, the judgment and decree of the appellate court are set aside. The second appeal is allowed and the judgment and decree of the trial court are restored and the suit is dismissed. In the circumstances of the case I direct the parties to bear their own costs throughout.