SA/7/1980 of THRESSIA Vs THE STATE OF KERALA on 15 January 1985

1. The State of Kerala represented bythe Chief Secretary to the Government ofthe Chief Secretary to the Government of Kerala, Secretariat, Trivandrum.

2. Prabhakran, Contractor,residing at Moorkanikara, Mulayam Village,Trichur Taluk.residing at Moorkanikara, Mulayam Village,Trichur Taluk.

ByA&vs. - R1 - Govt. Pleader.

R2 - M/s. .N.P. Samuel, T.K. Chinnan &

K. Mathews Mathai.

This second appeal having been finally heard on--1511985, the Court on the same day delivered the following:

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The second appeal was tenaciously argued by counsel for the appellant.;:;,r-i~K-':atht!'Wii> J.r,Jedumpara.The pr:incip.l.es of law gat.'lerable from judicial deciaiona in J!Llands v.Pletcher.,(l8b8)r...R.3 H.l.,. 330 OiOuse of LordS}.- and17 were pl.aced in the course of the arguments so adVanc::ea.

2. The suit was one for aamages cl.aimed by thep.J.a..1.nt.itft.owan..a the cost of repa.tring a cow shed andother expenses wen hatieu ii iae A,Oun,had aninflux of ml.Id ancl e.U:-'i::.h When the w?te"r flowing tbro~hthe adjacent irrigation canal caused such flow ef mudend earh in August-s@peter 1973,Though a claim hadbeen made £or the damages sustaJ.ned by her when repairworks wen carr.i.eo out. .by the work.era st.anding.in herproperty., that has been rightly abanaoned.

J.'fhe court.e bel.ow have approo.1atea the evJ.dence.,which consist.ea of the evidence of Pis,l and2 ands,1 and 2.The plaiuti::tf had suaoned the watchman of thecanal to give evidence in t.he case but had,for•strange reason' as n.ot.&d by the court .be.l.ov omitted toexair.J.ne him.

ui,2 the Asst.Engineer gave evidence that during the rainyseason water i& not. let. out. through tne cana.l.ThJ.a evi-dence was believed by the eou.rt~ below.Ift.hat. be othe version of the plaintiff about the manner in whichshe hc:-«i teen danmifiea, would not. be probable.'l'he "It. is in evidenee that. there as heavy rains and um report. of the al file also officers found in BX.

go t.o show that the breach took

place due w neavy rain.*

The lower appe.llit.e court also advert.eel to var.ious cireum- stances ineiuing the discrepancies in t.l'Mtc.iat.es of theoccuence of the breech of the canal as seen from theevidence of I#il.Te admission of P.2 that the ca:alwater was let out only for pacidy cultivation was alsoreferred to by the lower appe.l.lata court.The evidenceof D.ii.2 was believed ..The court.a below felt that theycould not piace any reliance on the oralteatJ.mony of 4, ssentiaiiy, therefore, the question turned on the appreciation of evidence in th& ca:;e.In th4tt. area,t.he jurisdiction ofthe second appellate court is extremel.ylimit.ea.rt cannot. oe said that the apprecJ.at.ion ofevi.uence undertaken;.;y the court.a below is perverse or·

tot.ally unreasonable.I am inclined to agree with tll8

approach and appreciation of the evidence in the case as raao.e 'by tboae courts •.even if anotherview is possible,tnat. is not sufficient. to attract t.he Juriac:U.ction of thisCourt in second appeal.

3, In vie of te airove, ?contentions which hadbeen forcily put forwzgd, oaricuiarly on he legal aspects,would uot. ari.ii>G int.h,.;;:.atl:!COnd appeal.Too aecond appeal is therefore dismisss3 out ithou lsy orieer as to costs

-Sd/ K.sukuma.ran,Judge.

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