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2012 DIGILAW 494 (MAD)

Chennappan v. Kandaswamy Gounder

2012-02-01

M.VENUGOPAL

body2012
Judgment :- 1. The Appellants/Defendants have projected the Second Appeal as against the Judgment and Decree dated 27.02.2001 in A.S.No.117 of 1998 passed by the Learned Principal District Judge, Tiruvannamalai. 2. The Plaint Scenario:- The plaint schedule property viz., Dry S.No.243/1C, 0.90 cents belongs to the Plaintiff. The Defendants 1 to 4 have filed a suit in O.S.No.495 of 1991 on the file of the Learned District Munsif, Polur. 3. During the pendency of O.S.No.495 of 1991, the Defendants 1 to 4, due to their influence and position in the village started to cut the trees mentioned in the suit survey number. Hence, the Respondent/Plaintiff projected an application in I.A.No.54 of 1992 in O.S.No.495 of 1991 praying for appointment of an Advocate Commissioner to inspect the suit property and accordingly, an Advocate Commissioner has been appointed. 4. The Advocate Commissioner inspected the suit property on 20.02.1992 and submitted a report. The Defendants, as per the Commissioners Report have cut 63 Eucalyptus trees belonging to the Plaintiff. The trees are more than 5 or 6 years old and they have been planted by the Plaintiffs predecessors--in-title. The trees will be worth more than Rs.15,000/- and the Plaintiff restricted his claim to a sum of Rs.10,000/-. In the report of the Commissioner, the stumps in issue are in the land and the Advocate Commissioner has made mention of the same. 5. In the circumstances, the Respondent/Plaintiff has filed the suit as against the Appellants/Defendants for recovery of a sum of Rs.10,000/-, being the value of the trees cut and carried away by the Appellants/Defendants. 6. Written Statement pleas of the Defendants:- As regards the ownership of the suit property O.S.No.495 of 1991 is pending before the trial Court. Only after final decision made in O.S.No.495 of 1991, O.S.No.139 of 1992 can be entertained. The Defendants never cut any trees from the tank bed as alleged by the Plaintiff. 7. The Tank is used by Potharai village people and it is not anybodys property, much less that of the Plaintiff. The Commissioner has never stated that the Defendants have cut 63 eucalyptus trees belonging to the Plaintiff. 8. The trees have been planted by the Potharai village Panchayat and it is false to state that trees have been planted by the Plaintiffs predecessors-in-title. Even the tank has been deepened only by spending Panchayat amount. The Commissioner has never stated that the Defendants have cut 63 eucalyptus trees belonging to the Plaintiff. 8. The trees have been planted by the Potharai village Panchayat and it is false to state that trees have been planted by the Plaintiffs predecessors-in-title. Even the tank has been deepened only by spending Panchayat amount. The Plaintiff and his predecessors have never used the tank for more than 150 years since the dedication of the property by one Rama Reddiar. The Defendants need not pay any amount to the Plaintiff since they have not carried away any trees. The Plaintiff is not the owner of the property. There is no cause of action for the Plaintiff to institute a suit. 9. At the time of admission of the Second Appeal, this Court has framed the following Substantial Question of Law:- "Whether the suit claiming the cost of the trees without a prayer for declaration of ownership for title is sustainable?" 10. In the instant case on hand, the evidence of witnesses PW1, PW2, PW3, DW1, DW2 and DW3 are referred to usefully. 11. PW1(Respondent/Plaintiff) in his evidence has deposed that the Appellants/Defendants have filed O.S.No.495 of 1991 claiming that the suit property therein belonged to village common public and obtained order of injunction against him but the said suit has been dismissed and A.S.No.89 of 1994 has also been filed and the same has been dismissed. 12. It is the further evidence of PW1 that the certified copy of the Judgment in A.S.No.89 of 1994 dated 8.12.1995 is Ex.A1 and in the said suit property, thaila trees, kattuva trees, arasu trees and Garcinia Cambogia trees, in all 63 trees have been standing and that the said trees have been cut by Parasuraman, Seetharaman, Kesavan, Chennappan and one Vellaikannan with the help of men. Ex.A2 is the Commissioners Report filed in O.S.No.495 of 1991. Ex.A2 is the Commissioners Report filed in O.S.No.495 of 1991. The value of the cut trees is approximately at Rs.15,000/- but the said suit has been filed for recovery of Rs.10,000/-alone and it is not correct to state that no trees have been cut and he has gone to the Police Station to present a petition, at that time, he has been informed that the case has been pending before this Court and hence, they informed to sort out the same before the Court and the trees have been planted by Ramanatha Reddiar, who sold the property to him and further, at the time of cutting of the trees, their age is six. 13. PW1(in his cross examination) has deposed that the Appellants/Defendants and one Kesavan have ordered for cutting of the trees and at the time the trees have been cut, 20-30 village people have been present. 14. PW2, in his evidence has deposed that informed about the suit property and the suit property is in Tank and arasu tree, three Kattuva trees and surrounding the same, there are fifty Eucalyptus trees but trees are not in existence now and they have been cut before six years and the five big people viz., Parasuraman, Seetharaman, Kesavan, Chennappan and Vellaikannan have ordered for cutting of the trees and the age of the Eucalyptus trees will be 3-4 years and the trees breath 3/4 feet and at the time of cutting of tree, the value of each tree is Rs.300/-. 15. PW2 (in his cross examination) has categorically deposed that he does not know whether the trees have been cut during the day time or night time and the trees have been cut by village 2030 people and at the time of cutting of trees, a quarrel has taken place, but no assault has taken place and in order to the trouble that arising, the Respondent/Plaintiff has lodged a police complaint. 16. 16. PW3, in his evidence has stated that in the suit property 63 Eucalyptus trees, one Kattuva tree, Arsu tree, have been there and now Eucalyptus trees are not in existence and Chennappan, Seetharaman, Kesavan, Kannan, Parasuraman and the President have joined and cut the trees and he has seen the cutting of the trees and therefore, the suit property only, he has to proceed his land while doing so, he has seen the same, but he does not know the value of Thaila trees and height and Eucalyptus trees will be 20 feet. 17. DW1 (Third Defendant) in his evidence has deposed that the suit in O.S.No.495 of 1991 filed before the trial Court, has been dismissed and also First Appeal has been dismissed and that in the High Court, this appeal has been filed. Moreover, the suit property is a tank utilised by the common people and only because of, the trees standing in the Tank have been cut, the suit has been filed and they (four persons) have not cut the trees and that, an Advocate Commissioner has inspected the property in O.S.No.495 of 1991 and at the time of his inspection, there have been no trees and the police have not examined in connection with the cutting of the trees and that, he does not know as to who cut the trees. 18. DW1(in his cross examination) has deposed that in the suit property, there have been 20 thaila trees and he does not know that no objection has been filed to the Commissioners Report and at the time of Advocate Commissioners inspection, he has been present. 19. It is the evidence of DW2 that he has sold the tank to the Respondent/Plaintiff and that he sold the 90 cents of land to the Respondent/Plaintiff and in the centre of 90 cents of land, there is a tank and the land and patta has been standing in his name and at the time of sale, there has been only one Arsu tree and thereafter, he has been informed to the Panchayat that trees have been planted and at the time of sale, there have been no Thaila trees or other trees. 20. 20. DW3(Advocate Commissioner) in his evidence has deposed that he has inspected the suit property and he has given his report as Ex.A2 and in the suit property, there is a tank and the place around the suit property is also forming a part of the suit property and at the time of his inspection, no trees have been seen in the suit property. But there have been indications for cutting of the trees and he cannot say, what are the trees that have been cut and for cutting of trees, indications are seen for the trunk of the trees which have been cut within ten days prior to his inspection. But he has not mentioned about this in his report and further, the age of the trees will be around 2-3 years. 21. It is not in dispute that the suit filed by the Appellants/Defendants O.S.No.495 of 1991 on the file of the trial Court claiming ownership of the suit property has been dismissed and also the first appeal has been dismissed. In the suit property, there have been in existence of 63 Eucalyptus trees, which is evident from Ex.A2 and DW3 evidence. The witnesses PW1 to PW3 have clearly mentioned that the Defendants with the help of others have cut the trees standing in the suit property. Since already there has been pending a case in O.S.No.495 of 1991 between the parties on the file of the trial Court, it comes to be known that the police have directed the parties to seek remedy before the civil Court. If really, the trees belongs to Panchayat Board, then when the trees have been cut, what course of action has been initiated by the Panchayat against the concerned, has not been explained or proved before this Court. 22. DW3, in his evidence has clearly deposed that the age of 63 cut trees will be around 2-3 years approximately. But PW2 in his evidence has stated that the value of each cut trees will be Rs.300/-. The trial Court has fixed the value of each cut tree at Rs.100/-and has awarded a sum of Rs.6,300/-as damages/compensation in respect of the cut trees. 23. But PW2 in his evidence has stated that the value of each cut trees will be Rs.300/-. The trial Court has fixed the value of each cut tree at Rs.100/-and has awarded a sum of Rs.6,300/-as damages/compensation in respect of the cut trees. 23. In A.S.No.117 of 1998 filed by the Appellants/Defendants has clearly opined that the contention of the Appellants/Defendants that they never cut and carried away 63 eucalyptus trees is not at all accepted one and has held that the trial Court has rightly passed Decree thereby dismissed the Appeal with costs of the Respondent/Plaintiff. 24. However, on going through the Judgment of the First Appellate Court in A.S.No.117 of 1998 in paragraph No.7, the first Appellate Court among other things has held hereunder:- "At the same time, the fact that at the time of filing the suit in O.S.No.495 of 1991, there were 63 Eucalyptus trees were standing is established by the report and plan of the Advocate Commissioner in O.S.No.495/1991. The same report is marked as Ex.A2 in this case. Therefore that the contention of the appellants/defendants that the defendants never cut and carried away 63 Eucalyptus trees is not at all accepted one. Therefore the trial Court has rightly held that the plaintiff is entitled to get a sum of Rs.10,000/- being the value of the trees and cut and carried away by the defendants. I answer this point accordingly." From the above extract of the first Appellate Court Judgment, it is patently and latently clear that a slight error has crept in when the first appellate Court has affirmed the Judgment and Decree of the trial Court in O.S.No.139 of 1992 dated 29.01.1998 in regard to the award of the compensation/damages, as the case may be. The error/mistake that has occurred that the First Appellate Court while affirming the Judgment and Decree of the trial Court in the suit has wrongly mentioned a sum of Rs.10,000/-being the value of the trees cut and carried away by the Appellants/Defendants. The error/mistake that has occurred that the First Appellate Court while affirming the Judgment and Decree of the trial Court in the suit has wrongly mentioned a sum of Rs.10,000/-being the value of the trees cut and carried away by the Appellants/Defendants. Accordingly, this accidental or an inadvertent error is corrected by this Court to prevent and an aberration of justice by setting aside Rs.10,000/-only, instead, for an amount of Rs.10,000/- and this Court substitutes a sum of Rs.6,300/-(Rupees Six Thousand and Three Hundred only) (originally awarded by the trial Court), which is Just, Fair, Equitable, Proper, Reasonable and correct one based on the facts and circumstances of the case which float on the surface. 25. Decree for damage is decree for payment of money and interest can be granted, as opined by this Court. A Court has power to award pendente lite and future interest on damages decreed. The power of the Court to grand interest after suit as a statutory power. No doubt, Section 34 of Civil Procedure Code applies, where there is a decree for payment of money. 26. The Respondent/Plaintiff has filed a suit against the Appellants/Defendants for claiming a sum of Rs.10,000/- with subsequent interest and costs in regard to the cutting and carrying away of the trees in respect of the suit property belonging to the Respondent/Plaintiff. Therefore, when 63 standing trees belonging to the Respondent/Plaintiff has been cut and carried away by this Appellants/Defendants and when, DW2 has himself deposed that he has sold 90 cents of land to the Respondent/Plaintiff then the trees standing in a landed property, goes along with the land. As such there is no need or necessity for the Respondent/Plaintiff to seek a declaratory relief in regard to the ownership/title of the 63 aforesaid trees. Even in the absence of such a declaratory prayer, the Respondent/Plaintiff is perfectly justified in filing the present suit for damages. 27. Viewed in that perspective, this Court holds that the Second Appeal is devoid of merits and accordingly, the Substantial Question of Law is so answered by this Court against the Appellants/Defendants. 28. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. 27. Viewed in that perspective, this Court holds that the Second Appeal is devoid of merits and accordingly, the Substantial Question of Law is so answered by this Court against the Appellants/Defendants. 28. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Resultantly, the Appellants/ Defendants are directed to pay a sum of Rs.6,300/-to the Respondent/Plaintiff with 6% interest from the date of Decree till the date of realisation with proportionate costs and accordingly, the suit is decreed. The Appellants/Defendants are granted three months time to pay the amount.