The State of Kerala and Others v Mary Jacob and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 AS.No. 65 of 1997() ------------------OS.280/1992 of ADDL.SUB COURT, KOCHI .................... APPELLANTS/DEFENDANTS 1 TO 3 -------------------------------------------------- 1. THE STATE OF KERALA, REP BY THE CHIEF SECRETARY SECRETARIAT, TRIVANDRUM 2. THE COMMISSIONER OF POLICE, COMMISSIONER OFFICE 3. THE SI OF POLICE, MATTANCHERRY STATION MATTANCHERRY BY GOVERNMENT PLEADER MR.P K JAYAKRISHNAN RESPONDENTS/PLAINTIFF AND 4TH DEFENDANT ---------------------------------------------------------------------1. MARY JACOB, W/O.JACOB, JOBLESS RAMACHAM KUZHI HOUSE, CC NO.15/75, RAMESWARAM WEST MURI THOPPUMPADY VILLAGE , KOCHI TALUK 2. K C SEBASTIAN, S/O.CHACKO, 56 YEARS CC 15/60, RAMESWARAM WEST MURI, THOPPUMPADY VILLAGE )( DIED & LEGAL COCHIN TALUK HEIRS IMPLEADED ADDL.R3 MARIYAM, W/O.K C SEBASTIAN AGED 63 YEARS, NO.34, ANNAI SATHYA NAGAR MOOLAKKAD, CHENNAI PIN 600 110 ADDL.R4 LUCY D/O.K C SEBASTIAN AGED 40 YEARS DO- DO- DOADDL.R5 JULIE SEBASTIAN, D/O.K C SEBASTIAN AGED 37 YEARS 1092 SOBHA SUNSCAPE SOBHA HILL VIEW OSS KANAKAPURAM ROAD, BANAGALORE 560062 (LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL.RESPONDNETS 3 TO 5 VIDE ORDER DT.9.6.2011 ON IS 194/2011) ADV. SRI.TOM JOSE SRI.P.C.CHACKO SRI.A.K.CHINNAN FOR R1 SMT.SUSAL A. CHINNAN FOR R1 SMT.VANAJA MADHAVAN FOR R5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 8.8.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------AS No.65 of 1997-E ------------------------------------Dated this the 8[th] day of August 2011 ## Judgment The defendants 1 to 3 in OS No.280/92 before the Sub Court, Kochi are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claims to be the absolute owner of the building having door No.CC 15/75, situate in a land comprised in Survey No.1132/5 of Thoppumpady village. The property of the fourth defendant is situate on the southern side of the plaint schedule property. According to the plaintiff, the fourth defendant has been harassing her and creating problems. There were several litigations between the two. Subsequent to the dismissal of a suit filed by the fourth defendant, the plaintiff renovated the building expending Rs.21,300/-. On 15.02.1992, it is alleged that the third defendant came with his police force and caused AS 65/97 2 demolition of a major portion of the building belonging to the plaintiff, without any justification or reasons whatsoever. It is alleged in the plaint that the illegal act is committed at the instigation of the fourth defendant. Claiming compensation for an amount of Rs.51,300/- for the damage caused to the building and for consequential reliefs, the suit was laid. 3. The third defendant filed a written statement on behalf of defendants 1 and 2 also. It is pointed out that the allegations in the plaint are contrary to facts. It is pointed out that the plaintiff had unauthorisedly extended a portion of her house to the puramboke land without the sanction of the Revenue Department or the corporation authorities. The Building Inspector of the Corporation of Kochi and the Village Officer, Rameswaram had reported about the encroachment made by the plaintiff to the RDO. Thereafter, a case was registered against the plaintiff under the Kerala Land Conservancy Act and the Village Officer directed her to remove the unauthorised 3 AS 65/97 construction. But, she did not obey. Therefore, the RDO ordered the police to render adequate police protection to the revenue authorities for execution of the order of the RDO. It is pointed out that none of the defendants were present at the relevant time. They also denied that the plaintiff had suffered any damage due to the act committed by the defendants. On the above contentions, they prayed for dismissal of the suit. 4. In the separate written statement filed by the fourth defendant, he denied the allegations against him. The contentions taken by him in the written statement are not very relevant for the present purpose and therefore, they are not being referred to in this judgment. 5. On the above allegations, necessary issues were raised. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A17 from the side of the plaintiff. The defendants had DWs 1 to 3 examined. Ext.C1 commissioner's report was also marked. AS 65/97 4 6. The lower court, after considering the materials before it, found that the demolition was illegal and mulcted the State with a liability of Rs.23,000/- as damages. The said judgment and decree are assailed in this appeal. 7. The question that arises for consideration in this appeal is whether the court below was justified in granting damages to the plaintiff, in the facts and circumstances of the case. 8. The definite stand of the plaintiff was that it was at the instigation of the fourth respondent that a portion of the building was demolished. The specific averment in the plaint is that on 15.02.1992, the third defendant came with his police force and caused demolition of a major portion of the building belonging to the plaintiff. It was without any authority that the said act was done. The specific allegation in the plaint was that the act committed by the third defendant and the other police officers was at the instigation of the fourth defendant. AS 65/97 5 9. The learned Government Pleader appearing for the appellants pointed out that the court below has misdirected itself both on facts and in law. The case found by the trial court is entirely a different one from what is pleaded and spoken to by the plaintiff. Even in the reply notice issued by the State, circumstances under which the demolition had been carried out were narrated in detail. In spite of that, there was no attempt from the part of the plaintiff to make proper allegations in the plaint and the allegations made are inconsistent with the evidence in the case and the findings in the case are incompatible with the evidence and pleadings in the case. In the written statement of defendants 1 to 3, the circumstances under which the demolition had been carried out have been specifically stated. At least at that point of time, the plaint should have been amended, stating the actual state of affairs. The case found by the trial court has no foundation in the pleadings or evidence and therefore, the judgment and decree are unsustainable in law. AS 65/97 6 10. Having gone through the records and heard the learned counsel for the defendants and the learned Government Pleader, it is seen that there is considerable force in the submissions made by the learned Government Pleader. The definite case in the plaint was that it was at the instance of the fourth defendant that the third defendant and other police officials came to the place and demolished the building. 11. It will be useful at this point, to refer to the specific case put forward in the plaint. The plaintiff's case was that there was a rivalry between her and the fourth defendant and on the date of incident i.e., on 15.02.1992, at about 3 p.m., the third defendant along with his police force came and demolished a portion of her building. In fact, the averment in the pleadings is that it was at the instance of the fourth defendant that the demolition was made. AS 65/97 7 12. Now, one may refer to the written statement filed by defendants 1 to 3. They have specifically denied the allegations in the plaint. In paragraph 10, they have explained the circumstances under which the demolition had been carried out. It is seen stated that the plaintiff had made unauthorised construction in the puramboke land and the revenue authorities had initiated proceedings against her. The plaintiff was served with a notice, calling upon her to demolish the building, but she did not remove the same. It was under those circumstances that the revenue authorities were compelled to demolish a portion of the building. In spite of this specific stand taken by the defendants, there was no attempt from the part of the plaintiff to amend the plaint, stating the true state of affairs. One must remember here that Ext.A17 is the reply notice received by the plaintiff. Ext.A17 notice specifically states the circumstances under which the demolition was carried out. It is very clear from a reading of Ext.A17 that the plaintiff was guilty of extending her constructions to the AS 65/97 8 puramboke land and the revenue authorities had initiated proceedings against her. It was the Revenue authorities who are responsible for demolishing a portion of her building. Even in spite of these disclosures in the reply notice, the plaintiff chose to lay the plaint with false allegations. 13. There is no whisper in the plaint that the plaintiff was not served with a notice by the revenue authorities. Now, one may refer to the evidence of PW1. In chief examination, she says that on the date of incident, at about 3 'o clock, the fourth defendant, his son-in-law and his wife along with about 10 to 30 goondas and two policemen, came to the house, threw the articles out of the house and demolished a portion of her building. In cross examination, she reiterates that it was at the instigation of the fourth defendant that the act was committed by the third respondent and others. 14. The learned counsel for the contesting defendants pointed out that the statement made in AS 65/97 9 paragraph 6 of the plaint read along with paragraphs 8 and 10 of the written statement filed by defendants 1 to 3 are sufficient to fasten vicarious liability on the State. At any rate, according to the learned counsel, the demolition has been carried out by the servants of the State and therefore, the State is liable. It is also contended on behalf of the contesting defendants that the appeal is not maintainable before this court in view of the amendment to S.34 of the Civil Courts Act. 15. It must be said that both the above contentions are without any merits whatsoever. In the decision reported in **Kunnappadi Kalliani v. Lekharaj** (1996(2) KLT 106), it was held as follows : “While making the amendment of 1996, the Legislature had adopted the same device by merely enhancing the valuation of the subject matter from Rs.25,000/- to Rs.2 lakhs. Since it must be taken that the Legislature was aware of the legal position laid down by this court, when the same device was adopted by it in the year 1984, no AS 65/97 10 intention could now be attributed to the Legislature that it was intended by the amendment of S.13(1) of the Civil Courts Act to interfere with the accrued right of the litigants to appeal to this court. Appeals from decree of Subordinate Judge's courts in suits instituted prior to 27.3.1996 would continue to lie in this court, if they were maintainable in this court prior to 27.3.1996.” 16. The suit was filed in 1992 and the valuation was above Rs.50,000/-. So, going by the relevant provisions, an appeal lies to the High Court. 17. The second contention that in view of the statements contained in paragraphs 8 and 10 of the written statement, the State is vicariously liable even though the case pleaded may be false or the case established is entirely a different one. 18. As already noticed, the plaintiff was served with a reply notice in which the circumstances under which the demolition was carried out were clearly mentioned. Therefore, she was aware of the circumstances under AS 65/97 11 which the incident had taken place. Still, with ulterior motives, she concealed those facts and filed the plaint with false allegations. It has come out in evidence that the third defendant had nothing to do with the incident. The court below has also found that neither the third defendant nor the fourth defendant was present at the place of incident and therefore, they cannot be mulcted with any liability. Even when examined as PW1, the plaintiff had no case that she has not received any notice from the revenue authorities. As already noticed in the reply notice as well as in the written statement, there were specific averments to the effect that the plaintiff had made an illegal constructions and proceedings under the Land Conservancy Act had been initiated against her. In spite of that, the plaintiff thought it unnecessary to make proper averments in the plaint. 19. The argument is that even if the act was done by revenue authorities, they being State servants, the State is vicariously liable and that it is not necessary that all AS 65/97 12 joint tort feasors should be made parties to the suit. 20. One may recall here, the case pleaded by the plaintiff which has already been referred to above. That case has been found to be false. The State is called upon to meet only the case pleaded in the plaint. The State, through its officials, had made it clear in the reply notice Ext.A17, the circumstances under which the incident happened. At the risk of repetition, one may notice that the plaintiff was aware of the true state of affairs, but she chose to conceal the same and put forward a false case and she maintained her stand at the time of evidence also. The trial court seems to be under the impression that it was for the defendants to prove that the demolition was made in accordance with law. The lower court has omitted to notice the case pleaded and sought to be established by the evidence of PWs 1 to 3. That case was found to be totally false. The State was not called upon to meet the case that the revenue authorities had done any illegal act as a result of which the plaintiff has suffered damages, nor did the AS 65/97 13 plaintiff have such a case. The persons who were responsible for the demolition were clearly stated in the reply notice and also in the written statement filed by defendants 1 to 3 and still the plaintiff chose to carry on with cooked up story. 21. One can take no exception to the principle that all joint tort feasors need not be parties. When it is found that the case pleaded is false and the evidence adduced is unacceptable, still to hold that the State is vicariously liable for not meeting a case which is not pleaded, is something which cannot be countenanced. 22. What is significant is, even the trial court finds that neither the third and fourth defendant was present at the time of the alleged demolition and the averments made in the plaint as well as in the evidence are totally false. The court goes on to say that the State has not proved that the action was taken pursuant to Land Conservancy proceedings and therefore, the State is not liable. Holding so, the State is made liable for the act, AS 65/97 14 which is not a case of the plaintiff either in the plaint or at the time of evidence. PW3 the daughter of PW1 also maintains that it was at the behest of the fourth defendant that the illegal act was done. They have no case at all that the revenue authorities had illegally demolished the building. They were aware of the fact that the demolition as a consequence of the proceedings under the Land Conservancy Act. 23. For the above reasons, it is difficult to sustain the findings of the court below and the conclusions drawn based on those findings. Apart from the above fact, there is absolutely no evidence to the actual damages suffered by the plaintiff. The court below has taken aid of the commissioner's report which gives no details as to how the amount of Rs.20,000/- has been arrived at. The commissioner who was examined as PW2, is unable to give any details about the same. In the result, this appeal is allowed. The judgment and decree of the trial court are set aside and the AS 65/97 15 suit stands dismissed. In fact, this is a fit case for awarding exemplary compensatory costs to the defendants. The defendants will bear their costs both in this court as well as in the court below. **P.Bhavadasan, Judge** sta AS 65/97 16