Dismissed

Joseph and Another v. Thomas and Others

Kerala HC4 Feb 2009RSA/631/2008

Case brief

AI extract

What is this about?

This Second Appeal against a decree for damages in a trespass suit was dismissed. The court held that the findings of fact regarding title, trespass, and damage estimation by the trial and appellate courts were reasonable and no substantial question of law arose for interference under Section 100 CPC.

What did the court decide?

The Memorandum of Appeal was dismissed in limine as no substantial question of law arose for consideration in the Second Appeal.

Joseph and Another Vs Thomas and Others — Contract and Commercial Disputes | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.RAMKUMAR

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WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930

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RSA.No. 631 of 2008(A) AS.109/2005 of SUB COURT, PALA OS.131/2003 of MUNSIFF COURT, PALA

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APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2:-

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JOSEPH, AGED 67, S/O GEOGE, KANATTU HOUSE, UZHAVOOR KARA, UZHAVOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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ABRAHAM, AGED 53, S/O LUKA, PULINTHOTTIYIL, UZHAVOOR KARA, UZHAVOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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BY ADV. MR.P.N.RAMAKRISHNAN NAIR

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MR.P.VISWANATHAN

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RESPONDENTS/ RESPONDENTS/PLAINTIFF AND DEFENDANTS 3 TO 5:-

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THOMAS, AGED 63, S/O LUKA, PUTHIYAKUNNEL KARINACHI KARA, UZHAVOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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SAJI, AGED 33, S/O LUKA, KUTHIRAKALLUNGAL, PERUMTHANAM KARA, UZHAVOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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KESAVANKUTTY, AGED 52,

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WORK SUPERINTENDENT, P.W.D, KURAVILANGAD.

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KERALA STATE, REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM COLLECTORATE, KOTTAYAM.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V. RAMKUMAR , J.

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==========================

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R.S.A. No. 631 of 2008

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========================== Dated this the 4^th day of February, 2009.

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JUDGMENT

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Defendants 1 and 2 in O.S. No. 131 of 2003 on the file of the Munsiff's Court, Pala are the appellants in this Second Appeal. The said suit was one for damages and for ancillary relief including injunction. The plaintiffs alleged that on 15.06.2003, defendants 1 to 4 trespassed into the plaint schedule property and destroyed a portion of the building situated in the plaint schedule property using a JCB driven by the 3^rd defendant under the leadership of defendants 1 and 2 and aided by the 4^th defendant who is a P.W.D Work Superintendent. The plaintiff claimed title over the plaint schedule property as per Ext.A3 partition deed of the year 1118 M.E corresponding to the year 1943. A property of which the plaint schedule property is a portion, was allotted to the plaintiff's father Luca as the A- schedule thereunder and another item of property was allotted to Luca's brother Estha as the B schedule thereto.

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Defendants 1 to 3 denied their presence at the plaint

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R.S.A. No. 631/2008 : 2 :

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schedule property on 15.06.2003. They also contended that the plaintiff does not have exclusive title over the plaint schedule property since one of his living sister and the legal heir of a deceased sister were not made parties to the suit and that the suit was bad for non-joinder of necessary parties. He also contended that a portion of the building is standing on puramboke land.

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On the side of the plaintiff, 6 witnesses were examined as PWs 1 to 6 of whom PW1 is the plaintiff and PW2 is the Advocate Commissioner who filed Exts. C1 series and C2 series. PWs 3 to 5 are neighbours and PW6 is the son of the plaintiff. Exts. A1 to A3 were got marked. On the side of the defendant, 7 witnesses were examined as Dws 1 to 7 of whom Dws 1 to 3 are defendants 1, 2 and 4 and DWs 4 to 7 are independent witnesses. DW6 is the brother of the third defendant, who is abroad.

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The learned Munsiff, after trial, as per judgment and decree dated 09.09.2005 decreed the suit as against defendants 1 to 3. The suit was, however, dismissed as against defendants

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R.S.A. No. 631/2008

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: 3 :

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4 and 5. On appeal preferred by defendants 1 and 2 as A.S. No. 109 of 2005 before the Sub Court, Pala, the learned Subordinate Judge as per judgment and decree dated 18.12.2007 dismissed the appeal confirming the judgment and decree passed by the trial court. Hence this Second Apepal.

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The following are the questions of law formulated in the memorandum of Second Appeal.

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A. Whether the courts below are right in granting a decree of compensation with respect to a building since the plaintiff has failed to establish his title over the property where the building is situated especially when there is prima facie evidence to show that the building is not situated in the private holding of the plaintiff?

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B. Whether the courts below are justified in granting a decree of compensation with respect to the property in favour of the plaintiff without answering the issue of non-joinder of parties when the defendants have specifically contended that the plaintiff is not the exclusive owner and others are also entitled to the property?

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C. Whether the courts below are justified in arriving a conclusion that the defendants 1 to 3 had destructed the building since the evidence tendered by the witness examined on the side of the plaintiff is inconsistent to each other?

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D. Whether the courts below are right in accepting the commission reports and annexures when the assessment of the damage was done not in proper manner?

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E. Whether the courts below are right in granting a decree in a suit where the government is a party without a notice contemplated under Section 80, C.P.C?

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R.S.A. No. 631/2008

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: 4 :

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I heard the learned counsel appearing for the

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appellants/defendants 1 and 2. He made the following submissions before me in support of the appeal:-

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The plaintiff has failed to prove that he has exclusive title and possession over the plaint schedule property. There has been no proper identification of the property. The Advocate Commissioner deputed by the trial court did not measure the property according to the re-survey. Even admitting the case of the plaintiff, on the death of his father Luca to whom the property including the plaint schedule property was allotted, the property devolved not only on the plaintiff but also on one of his living sisters and on the legal heirs of his deceased sister. Those co-owners were not made parties to the suit which was, therefore, bad for non joinder of necessary parties. The assessment made by the expert engineer regarding the value of the demolished portion of the building is not proper. The expert had taken into account the present value of the material. The building was admittedly constructed in the year 1970. So, the valuation should have been after giving depreciation for the cost

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R.S.A. No. 631/2008 : 5 :

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of materials in the year 1970. Therefore, there is no proper estimate of the damages before the court. Ext.B3 is a criminal complaint filed by the plaintiff against the appellant alleging criminal trespass and mischief. The decision of the civil court on such scanty material will certainly have a bearing on the criminal complaint which is now pending before the criminal court and there is every possibility of the appellant being convicted by the Magistrate.

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I am afraid that I cannot agree with the above submissions in their entirety. The courts below have held that a larger extent of property including the plaint schedule property, belonged to the plaintiff's father Luca and his brother Estha. In Ext.A3 partition deed dated 01.04.1118 M.E corresponding to the year 1943, the portion including the plaint schedule property, was allotted to Luca. The plaintiff's father Luca died on 30.09.1949. Ever since the death of Luca, the plaintiff has been in possession and enjoyment of the plaint schedule property. Even assuming that his sisters had right over the same, nonimpleadment of those co-owners does not in any way affect the

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R.S.A. No. 631/2008 : 6 :

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maintainability of the suit. So, the contention that the suit was bad for non-joinder of the other co-owners was, thus, rightly

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rejected by the court below.

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As for the presence of defendants 1 to 3 on 15.06.2003 as alleged by the plaintiff, the trial court which had the unique advantage of seeing the witnesses and assessing their credibility, has chosen to believe the oral testimony of the plaintiff and his witnesses in preference to the evidence tendered by the defendants. The lower appellate court also did not find any infirmity in the appreciation of evidence by the trial court. Hence, this Court sitting in Second Appeal will be loath to interfere with the said finding based on appreciation of evidence (see AIR 1983 SC 114).

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The contention regarding the identification also cannot stand the scrutiny of this Court. The Advocate Commissioner was assisted by the surveyor and Ext.C2(a) is a survey plan as per which the plaint schedule property has been correctly identified.

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The estimation of the damages at Rs.80,014/- assessed by the expert deputed by the trial court also is unassailable. The

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R.S.A. No. 631/2008 : 7 :

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final courts of fact have accepted the said estimation and this Court will not interfere with the same in the rarefied jurisdiction under Section 100 C.P.C.

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As for the Ext.B3 criminal complaint filed by the plaintiff, the same will have to be disposed of by the criminal court on the strength of the evidence adduced before that court. The findings or judgments of the Civil Court are not binding on the criminal court. [vide Premshanker v/s I.G of Police - AIR 2007 SC 3372]

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The findings recorded by the courts below are pure findings of fact. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine.

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Dated this the 4^th day of February, 2009.

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V. RAMKUMAR, JUDGE.

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R.S.A. No. 631/2008 : 8 :

Joseph and Another v. Thomas and Others

Case brief

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What did the court decide?

Joseph and Another v. Thomas and Others

Case brief

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