The burden of proof lies with the party asserting a fact, and the court emphasized the importance of documentary evidence and the credibility of the Advocate-Commissioner's report.

This Second Appeal arises out of the Judgment and Decree in A.S.No.75/2005 on the file of Sub-Court, Tiruvarur reversing Judgment of the trial Court and thereby dismissing Plaintiffs suit for Permanent Injunction and also Mandatory Injunction.

2. Suit property relates to 10 cents of lands in S.No.95/4B of Pozhagudi village, Nannilam Taluk. Case of Plaintiff is that Plaintiff had entered into an agreement of sale with one Subramania Bakthar and his wife Kamaladevi in the year 1992 and has been in possession and enjoyment of the suit property from 1992. Plaintiff had purchased the suit property under Ex.A1 sale deed [23.02.1998] from the said Subramania Bakthar and his wife Kamaladevi Patta for the suit property was transferred in the name of Plaintiff under Ex.A2-Proceedings of Zonal Deputy Tahsildar, Nannilam. Defendant owns land in S.No.95/3 on the western side of the suit property. Further case of Plaintiff is that there had been enmity between Plaintiff and Defendant and on 012. 2000, Defendant with an intention to encroach the suit property, cut four Teak wood trees and one Siva Siva tree and carried them away. Plaintiff gave Ex.A3 complaint to Peralam Police Station on 012. 2000 and the same was acknowledged by Peralam Police under Ex.A3-acknowledgement. Since Defendants daughter was then Superintendent of Police in Cuddalore District, Peralam Police did not act upon the complaint given by Plaintiff. Stating that Defendant has no right in the suit S.No.95/4B, Plaintiff had filed suit for Permanent Injunction restraining the Defendant from in any way encroaching or interfering with the possession and enjoyment of the suit property and for Mandatory Injunction for recovery of four Teak wood trees and one Siva Siva tree.

3. Resisting the suit, Defendant filed Written Statement contending that Defendant is entitled to S.No.95/3 which is on the western side of suit S.No.95/4B. According to Defendant, four Teak wood trees and one Siva Siva tree cut and removed were only in S.No.95/3 which belongs to the Defendant and that Plaintiff cannot question the act of Defendant in removing Teak wood trees and Siva Siva tree.

4. On the above pleadings, trial Court framed three Issues. On the side of Plaintiff, Plaintiff examined himself as PW1 and Advocate-Commissioner was examined as PW2. Exs.A1 to A3 were marked. On the side of Defendant, husband of Defendant viz., Ganesan was examined as DW1 and one Krishnakumar who was working as Assistant in Taluk Office, Nannilam was examined as DW2. Exs.B1 to B3 were marked. Advocate-Commissioners Reports and Plans were marked as Exs.C1 to C6 respectively.

5. Upon consideration of oral and documentary evidence and by referring Exs.C3 and C4 [Report and Plan] and evidence of Advocate-Commissioner [PW2], trial Court held that trees were cut and removed from the lands of Plaintiff – Suit S.No.95/4B. Trial Court further held that even though in Ex.B3-Adangal trees are shown to be in S.No.95/3, based upon Advocate-Commissioners report, trial Court held that trees were actually in suit S.No.95/4B. Observing that there cannot be a Mandatory Injunction for recovery of trees cut and removed, trial Court directed the Defendant to pay damages of Rs.30,000/- to the Plaintiff and directed the Plaintiff to pay Court Fee on the damages of Rs.30,000/- under Sec.24 of Tamil Nadu Court Fees and Suits Valuation Act.

6. Being aggrieved by decreeing of suit, Defendant filed an appeal in A.S.No.75/2005 before Sub-Court, Tiruvarur. Finding that Surveyor and Village Administrative Officer of Pozhagudi village were not examined, lower Appellate Court held that Plaintiffs case is unacceptable. Lower Appellate Court further held that Plaintiff has not proved the existence of trees in suit S.No.95/4B and that Plaintiff has not proved to be in possession of the suit property. Lower Appellate Court further held that even when Plaintiff has not sought for relief of compensation, trial Court erred in directing paym