The court upheld the findings of the lower courts regarding liability for damages based on evidence presented and dismissed the appeal due to lack of substantial legal question.

JUDGMENT

The defendant in a suit, O.S. No.316 of 2018 on the files of the Munsiff Court, Pala, for mandatory and permanent prohibitory injunction, non-suited concurrently by the courts below, has come up in the present appeal.

2. The brief facts necessary for the disposal of the appeal are as follows:

The plaintiff instituted the aforesaid suit owing to the destruction caused to his compound wall on 16.11.2018 by the defendant. According to the plaintiff, there was heavy flood at that point of time and during the heavy rain fall the water level increased to three (3) feet in the road and, exploiting the same, at 5.30 p.m., the defendant came with a sledge hammer and destroyed the compound wall of the plaintiff at a length of 84 feet and also destroyed a portion of the compound wall of the plaintiff situated in front of the defendant’s brother’s house. The defendant resisted the claim by contending that the damage was caused due to flood, and not by any illegal act as alleged against him. The plaintiff examined PW1 to PW6 in support of his claim, and Exts.A1 to A10(a) documents were produced as documentary evidence. On the other hand, the defendants produced Exts.B1 and B2 and examined DW1 to DW7. Exts.C1, C1(a) and C1(b) series and C2 and C2 series are the reports and photographs filed by the advocate commissioner. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that the plaintiff had established the case as pleaded by him and accordingly decreed the suit by issuing a mandatory injunction directing the defendant to restore the destroyed portion of the compound walls. However, there was no decree for compensation. Aggrieved, the defendant preferred A.S. No.36 of 2024 before the Sub Court, Pala, which was also dismissed. Hence, the present second appeal.

3. Heard Sri. Reji George, the learned counsel appearing for the appellant and Sri. Jacob E. Simon, the learned counsel appearing for the respondent on caveat.

4. The matter was listed for admission on 8.9.2025, and, this Court found that, in the nature of the contentions raised by both parties, it will be expedient to peruse the trial court records in order to find out as to whether any substantial question of law arises for consideration in this appeal and therefore the records were summoned only for the limited purpose of ascertaining as to whether the appreciation of the evidence of the courts below is perverse.

5. The learned counsel for the appellant/defendant primarily pointed out that the findings of the courts below are clearly perverse inasmuch as there was no evidence before the courts to show that the defendant had caused damage and obstruction to the compound walls. In this connection, it is pointed out that the courts below thoroughly misconstrued the evidence of DW6, the Village Officer, who was examined to establish that there had been heavy rainfall on the relevant date and that the water level had risen to four feet and therefore the probable case of the defendant was that the destruction could have been caused due to the rising of water level. Except PW2, the brother of the plaintiff, no other witnesses were examined by the plaintiff to prove that it is the defendant who had demolished the compound wall. According to the learned counsel, it is impossible to stand at a water level of three feet and cause destruction as alleged.

6. Per contra, the learned counsel for the respondent/plaintiff on caveat supported the findings of the trial court and urged this Court not to re-appreciate the evidence inasmuch as the findings are not perverse. The learned counsel for the respondent pointed out that, in the nature of the destruction caused and also the reports and photographs produced by th