T. Biji v. A. Antony

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 16TH DAY OF JANUARY 2013/26TH POUSHA 1934 AS.No. 25 of 2002 (E) --------------------AGAINST THE JUDGMENT IN OS.262/1995 of SUB COURT, CHERTHALA DATED 24-07-2001 APPELLANT/DEFENDANT: --------------------------- T.BIJI, W/O.SIDHARTHAN, AGED 34 YEARS, RESIDING IN KURISUNKAL, KADAKKARAPPALLY VILLAGE CHERTHALA. BY ADV. SRI.M.P.KRISHNAN NAIR RESPONDENT/PLAINTIFF: ---------------------------- A.ANTONY, S/O.THOMAS, AGED 48 YEARS, RESIDING IN PALASSERRY VELI, KADAKKARAPPALLY VILLAGE, CHERTHALA. R1 BY ADV. SRI.TITUS MANI VETTOM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **HARUN-UL-RASHID, J. -----------------------A.S.No.25 Of 2002 ---------------------Dated this the 16[th] day of January, 2013.** ## **J U D G M E N T** The defendant is the appellant. The appeal is directed against the judgment and decree dated 24.7.2001 in O.S.No.262/1995 on the file of the Sub Court, Cherthala. Respondent is the plaintiff. Suit was filed for realisation of damages. Suit was decreed in part. Plaintiff was entitled to realise a sum of Rs.42,700/- together with interest @ 12% per annum from the date of suit till the date of decree and thereafter at the rate of 6% per annum till the date of realisation with costs from the defendant and her assets. 2. The plaintiff's case is as follows: The plaintiff is the owner of 'George Thomas Coir Works' situated in Sy.No.49/14 of Kadakkarappally Village. The factory was owned by one Sivarama Kartha. In the year 1961, he rented the factory to Varghese and Thomas. Thomas is the father and Varghese is father's brother of the plaintiff. Subsequently, Sivarama Kartha sold the factory in the year 1962 to the said Varghese and Thomas. Plaintiff's father, Thomas, died in the **::2::** ## **A.S.No.25 Of 2002** year 1965. Varghese was conducting the factory from 1965 - 1970. Plaintiff started conducting factory since 1971 onwards. After the death of Varghese in 1976, the plaintiff is in exclusive possession of the factory and its premises. Sivarama Kartha died in the year 1992 and his son Ramachandran executed a sale deed in favour of the defendants whereby he sold 16 cents of land including the property wherein the factory is situated. It is pleaded that even though the document was registered, it never came into effect since, the plaintiff is in possession of the property in continuation of the possession by his father and his brother Varghese. On 13.10.1992, defendant's husband and 60 others entered into the property and demolished the plaintiff's coir factory, factory shed, looms, accessories and coir products. They have also cut and removed two yielding coconut trees. It is also pleaded that as a result of the demolition of the factory, plaintiff suffered a loss of Rs.72,100/- inclusive of Rs.17,700/- as profit loss and Rs.10,000/- for mental sufferings. 3. In the written statement, the defendant denied the plaint averments. According to the defendant, the plaintiff or his **::3::** ## **A.S.No.25 Of 2002** predecessor has never had obtained the possession of the property in Sy.No.49/14 except the kudikidappu property and the property purchased by Varghese. It is pleaded that the defendant had purchased 16 cents of property comprised in Sy.No.49/14/1 and 49/14/2 from Ramachandran, son of Sivarama Kartha. The defendant also contended that he is in possession of the plaint schedule property having an extent of 16 cents comprised in Sy.No.49/14 and that there was no factory in the portion of the property purchased by him. The defendant also denied that she had destroyed the factory, looms and other accessories or coconut trees as alleged. The defendant also denied the allegation that the plaintiff was earning income from the factory and the claim for damages. 4. The plaintiff examined PWs 1 to 5, produced and marked Exts.A1 to A1 to A14. One witness was examined on the side of the defendant as DW1 and Exts.B1 to B3 series were marked on his side. 5. Plaintiff claimed damages on the allegation that his factory with looms and accessories have been destroyed by the **::4::** ## **A.S.No.25 Of 2002** defendant with the help of her husband and other men. Ext.A2 is the rent deed executed by Thomas and Varghese in favour of Sivarama Kartha. From Ext.A2 it is seen that plaintiff's father and his brother have been enjoying the factory building, looms and accessories situated in the 5 cents of property. Ext.A2 deed was executed on 31.8.1961. Ext.A3 is the copy of the sale deed executed by Sivarama Kartha in favour of Varghese and Thomas. As per Ext.A3 sale deed, the said persons purchased the rented factory from Sivarama Kartha. Ext.A3 title deed was executed in the year 1962. Ext.A4 is the notice issued by Sivarama Kartha to Varghese on 22.2.1966. In the notice Sivarama Kartha intimated Varghese that without his permission Varghese expanded the factory shed and installed two looms by encroaching other parts of the property of Sivarama Kartha. Ext.A4 notice would prove the case of the plaintiff that in the year 1962, Varghese expanded the factory shed by installing two more looms in the factory shed. O.S.No.535/1992 was filed by the defendant against the plaintiff. The said suit was filed for permanent prohibitory injunction restraining the plaintiff from trespassing upon the plaint schedule **::5::** ## **A.S.No.25 Of 2002** property having an extent of 16 cents comprised in Sy.Nos.49/14/1 & 49/14/2. Ext.A5 is the copy of the plaint and Ext.A6 is the copy of the written statement in O.S.No.535/1992. Ext.A8 is the certified copy of the judgment in O.S.No.535/1992 on the file of the Principal Munsiff Court, Cherthala. The commissioner in his report marked as Ext.C1 reported that there is a thatched shed existed on the southern side of the plaint schedule property wherein he could see four workers were making coir products. The existence of the factory was reported in the commission report. The commissioner has visited the property on 13.8.1992, i.e., two months after the filing of the suit. The plaintiff's case is that the coir factory was demolished on 13.10.1992. Ext.C2 is the another commission report marked in the said case, which is marked as Ext.A13 in the present case. The commissioner visited the spot on 19.10.1992. The commissioner reported that he could see the signs of removal of shed from the south-western part of the plaint schedule property and the part of the demolished shed was kept on the eastern part of the defendant's residential house. The commissioner has **::6::** ## **A.S.No.25 Of 2002** assessed damages suffered by the defendant in the suit who is the plaintiff in the present suit. He was examined as PW4 in the said suit. In Ext.A8 judgment the court found that the defendants came into possession of the plaint schedule property in the year 1966 and the possession was hostile to the true owner. In the said suit, the court held that there was a factory in the plaint schedule property conducted by the defendants. The court also held that the plaintiff has miserably failed to prove his possession and that the plaintiff is not in possession of the plaint schedule property. The suit was dismissed with costs. 6. Ext.A7 is the certified copy of the complaint filed by the plaintiff before the JFCM-I Cherthala, wherein he had complained that the defendant had trespassed upon the factory premises on 13.10.1992 and destroyed the factory, looms, accessories and cut and removed the standing trees thereon. Ext.A9 is the copy of the plaint in O.S.No.931/1996 on the file of the Munsiff Court, Cherthala, filed by the defendant as plaintiff against one Sudhakaran and one Antony. The prayer in that case was to restrain the defendants from trespassing upon the **::7::** ## **A.S.No.25 Of 2002** defendant's property or construct any structures including compound wall. Ext.A10 is the certified copy of the judgment in the said suit. The suit was dismissed. Ext.A14 is the copy of the judgment in Crl.Appeal No.15/1998. JFCM-I, Cherthala, convicted the defendant, her husband and another and sentenced to undergo simple imprisonment for six months and pay a fine of Rs.1,000/- each for the offence punishable under Section 427 IPC. They are also convicted and sentenced to undergo simple imprisonment for one month for offence punishable under Section 447 IPC. Ext.A14 appeal was filed challenging the conviction and sentence in C.C.No.159/1993. The appellate court dismissed the appeal and confirmed the conviction and sentence. The conviction and sentence was imposed on the defendant, her husband and another on the basis of Ext.A7 complaint filed by the plaintiff. The criminal court also found that the plaintiff was in possession of the coir factory and appurtenant land and that the accused along with others took law into their hands, committed trespass and committed mischief to make it appear that the properties are in the possession of the defendant. It is **::8::** ## **A.S.No.25 Of 2002** also found that the common intention was to commit mischief and trespass and to evict PW1 (plaintiff) by force is evident. JFCM-I, Cherthala and Additional Sessions Judge, Alappuzha, concluded that the defendant and her men are guilty of the offences as alleged in the complaint. The court below examined the oral and documentary evidence. The oral evidence of PW1 to PW5 and DW1 was evaluated. The plaintiff as PW1 tendered evidence in terms of the plaint. PWs 2 & 3 testified before the court that defendant, her husband and their men destroyed the factory, looms, accessories and cut down the coconut trees. The commissioners in O.S.No.535/1992 was examined as PW4 & PW5. The court also evaluated Exts.A1 to A14 documents, B1 to B3 series documents and considered the matter at length. The court found on evidence that the plaintiff has succeeded in proving that the coir factory was in existence in the plaint schedule property and also proved that the plaintiff has proved title to the property and that from 1962 onwards the plaintiff was running the coir factory till its demolition. The court found that there is clear evidence before the court that the defendant, her **::9::** ## **A.S.No.25 Of 2002** husband and others joined together and demolished the entire structures and destroyed the coconut trees standing in the property. The defendant did not enter into the box and failed to state her case on oath and did not offer herself to be crossexamined by the other side. The court also held that a presumption would arise that the case set up by the defendant is not correct. The Apex Court in the decision reported in _**Vidhyadhar v. Mankikrao and another**_ (AIR 1999 SC 1441) held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. After evaluating the materials on record and the legal principles, the court below rightly held that the plaintiff has succeeded in proving that the coir factory, factory shed and accessories have been demolished by the defendant. The court below allowed the claim in part and held that the plaintiff is entitled to realise Rs.42,700/- together with interest @ 12% per annum. **::10::** ## **A.S.No.25 Of 2002** 7. I have examined the evidence on record in detail. I find that the findings recorded by the court below is based on positive evidence adduced by the plaintiff. The judgment under appeal does not suffer from any factual error or suffer from any legal infirmity. I find that the appellant has not made out any valid ground to interfere with the judgment and decree passed by the court below. In the result, the appeal fails and accordingly, dismissed with costs. **HARUN-UL-RASHID, Judge.** bkn/-