Decided on August 11,2003

PAUL DANIEL Respondents


- (1.) This appeal is filed by the 2nd defendant in a suit for compensation. The case of the plaintiffs is that on 10-08-1984 an elephant, by name "Baburaj", owned by defendants 1 to 4 and hired by 6th defendant became unruly and entered into the plaintiffs' land and committed several mischieves by felling 20 yielding coconut trees, destroying 4 coconut saplings, 3 yielding arecanut trees, 5 plantain and 5 paras of paddy. The plaintiffs therefore claimed compensation for felling trees Rs. 30,000/- and Rs. 250/- towards the value of paddy.
(2.) Among the defendants, 2nd defendant alone contested the suit. He claimed that he is the owner of the elephant and defendants 1, 3 and 4 have no right or liability. His case is that on the basis of an agreement between the plaintiffs and the 5th defendant, the mahout of the elephant, certain unyielding coconut trees were arranged to be felled by the elephant and while so, a lady who came there opened her colored umbrella and the elephant became violent and due to the breakage of must the elephant became" uncontrollable. But subsequently, it was controlled. It was stated that the elephant was taken to the plaintiffs' land for felling unyielding coconut trees at the expense of the Government and to plant new trees there. It was also contended that the amount claimed is exorbitant.
(3.) The Trial Court framed the following issues: 1. Is the suit maintainable 2. Whether the 2nd defendant is the owner of the elephant by name Baburaj 3. Whether 5th defendant was the mahout of the elephant 4. Whether the elephant has caused damage to the plaintiffs and what is the quantum of damages 5. Whether there was gross negligence on the part of defendants 1 to 5 6. Relief and costs The Trial Court found that it cannot be said that 2nd defendant alone was the absolute owner of the elephant since the 2nd defendant did not produce any document to show that he alone purchased the elephant. It was also found that the 5th defendant was the mahout of the elephant at the time of incident. The Trial Court believed the evidence of PWs. 2 to 4 and found that breakage of must was due to the beating of the elephant by the 5th defendant. It was further found that the case set up by the 2nd defendant that the elephant was brought to the plaintiffs' premises for uprooting the unyielding coconut trees as not proved. It was found that the elephant was brought for one Vijayan for removing the timber by the 6th defendant.;

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