IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 AS.No.866 of 1996 --------------------- OS.11/1992 of PRL.SUB COURT, KOTTAYAM .................... APPELLANTS/DEFENDANTS 1, 2 & 4: ----------------------------------------- 1. K.V. ABRAHAM, S/O. VARKEY, KANIYAMPARAMBIL HOUSE, MANGANAM KARA, VIJAYAPURAM VILLAGE. 2. ANNAMMA K. ABRAHAM, W/O. ABRAHAM, -DO- -DO-. 3. K.A. VARKEY, S/O. LATE CHERIAN, -DO- -DO-. BY MR.V.G.ARUN, ADVOCATE. MR.T.R.HARIKUMAR, ADVOCATE. RESPONDENTS/ PLAINTIFFS & 3RD DEFENDANT: ------------------------------------------------------- 1. ROY CHERIAN, S/O. KURUVILLA, VELANGATTU THEKKEMURIYIL, MANGANAM KARA, VIJAYAPURAM VILLAGE. 2. KURUVILLA ABRAHAM, -DO- -DO- REPRESENTED BY POWER OF ATTORNEY HOLDER ROY CHERIAN, -DO- -DO-. 3. VINU ABRAHAM, S/O. K.V. ABRAHAM, KANIYAMPARAMBIL HOUSE, MANGANAM KARA, VIJAYAPURAM VILLAGE, KOTTAYAM. BY MR.P.R.VENKETESH, ADVOCATE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No.866/1996 Order on C.M.P.No.5263/1996 in AS.No.866/1996 Dismissed. 02.01.2009 Sd/- PIUS C. KURIAKOSE, JUDGE. // True Copy // P.S. to Judge. smp PIUS C. KURIAKOSE, J. ----------------------------------------------- A.S. No. 866 OF 1996 ----------------------------------------------- Dated this the 2nd day of January, 2009 J U D G M E N T The defendants 1, 2 and 4 in a suit for recovery of possession of the property described as item No.2 in the plaint schedule with damages which was decreed by the court below both for recovery and for realization of damages to the extent of Rs.77,540/- with interest at 18% per annum are the appellants. The pleadings have been narrated by the learned Subordinate Jude correctly and I do not propose to narrate them over again. The learned Subordinate Judge on the basis of the pleadings formulated the following issues for trial: 1. Whether the defendants are trespassers of the plaint schedule second item property? 2. Are the plaintiffs entitled to recover possession of the plaint schedule second item property? 3. What is the amount, if any, to which the plaintiffs are entitled as damages? A.S.N0.866/1996 -2- 4.What is the quantum of mesne profits, if any, to which the plaintiffs are entitled? 5. Are the plaintiffs entitled to the prohibitory injunction prayed for? 6. What is the order as to costs? 2. On the side of the plaintiff the evidence consisted of oral testimonies of PWs-1 to 4 and Exts.A1 to A5. Ext.A1 was partition deed executed between Abraham and others. Ext.A2 was gift deed executed by Kuruvilla in favour of Abraham and Punnan. Exts.A3 to A5 were stock registers. On the side of the defendants the evidence consisted of oral testimonies of DWs. 1 to 3 and Exts.B1 survey plan in respect of the field which takes in the plaint schedule property. Apart from Ext.B1 there was commission report Ext.C1 and plan C1(a) prepared by the commissioner. 3. The learned Sub Judge considered issue Nos.1 and 2 together. It was found by the learned Sub Judge that the evidence let in by the plaintiffs unerringly proves that the A.S.N0.866/1996 -3- disputed portion was part of the eastern portion which is admittedly now in the possession of the plaintiffs and establishes the plaintiff's case that a few days before the institution of the suit the defendants took possession of the disputed portion by force. It was also found that the plaintiffs have been able to substantiate their allegations that within 6 months before the filing of the suit they had been in possession of the plaint schedule item No.2 and accordingly it was found that the plaintiffs are entitled to recover possession. Those two issues were accordingly found in favour of the plaintiff. Considering issue No.4 the learned Subordinate Judge noticed that the claim for mesne profits was at the rate of Rs.200/- per month only. It was also noticed that the property was situated near the Manorama Junction on K.K. Road which is one of the main arteries of the Kottayam Municipal Town. Evidence of PW-1 that the building will fetch rent at the rate of Rs.5/- and A.S.N0.866/1996 -4- accordingly issue No.4 was answered in favour of the plaintiff holding that the plaintiffs are entitled to get mesne profits at the rate of Rs.200/- per month. As regards issue No.3, the learned Subordinate Judge appears to have relied on the commissioner's report under which value of the articles lost by the plaintiff was fixed at Rs.90,053/-. However, decree was passed only for Rs.77,540/- since that was the amount claimed. Issue No.5 regarding injunction was answered in favour of the plaintiff and the defendants were restrained from trespassing into portions of the building in their possession. Issue No. 6 was also answered in favour of the plaintiffs following the principle that cost shall follow the event. 4. Sri.T.R.Harikumar, learned counsel for the appellant and Sri.P.C.Chacko, learned counsel for the respondent would address me extensively. My attention was drawn by them to the pleadings and also to the evidence which came A.S.N0.866/1996 -5- on record. Mr.Harikumar would assail the judgment of the learned Subordinate Judge very forcefully on the basis of the grounds raised while Mr.Chacko would support the judgment with equal force. Having gone through the impugned judgment and having made a reappraisal of the entire evidence on record and having considered the submissions addressed I am of the view that there is absolutely no warrant for interfering with the decrees of recovery of possession and injunction passed by the court below in favour of the respondents. However, on going through the finding of the learned Subordinate Judge as regards the plaintiffs' eligibility for a decree for damages I find that the Commissioner's report is the main item of evidence on the basis of which the said decree has been granted. The report was prepared by the Advocate Commissioner on the basis of an inspection which was conducted by him only 17 days after the suit was instituted. No plausible explanation is A.S.N0.866/1996 -6- being offered by the plaintiff as to what prevented the plaintiff from taking out a commission contemporaneously with the suit. According to me, it was not very safe on the part of the learned Subordinate Judge to pass the decree for damages relying only on the commission report and what was revealed by the stock registers. The possibility of the plaintiffs having conducted sale of portions of their stock during the period of 17 days between the institution of the suit and inspection by the commissioner cannot be ruled out. In the above circumstance I am of the view that the decree for damages is liable to be vacated and all the amounts deposited by the appellants towards damages and towards decree passed for mesne profits can be permitted to be withdrawn from the court by the appellants on condition that the appellants would peacefully surrender all the properties covered by the decree of recovery within 45 days of receiving certified copy of this judgment. A.S.N0.866/1996 -7- 5. The result of the above discussion accordingly is as follows: 1.The decree passed against the appellant for recovery of possession is confirmed. 2. The decree for damages of Rs.77,540/- with interest and cost passed in favour of the first plaintiff and second plaintiff respectively will stand vacated on condition that the appellants put the respondents back in possession of the property covered by the decree of recovery of possession within 45 days of receiving copy of this judgment. In case the appellants fail to do so, the appeal will stand dismissed completely. The parties are directed to suffer their costs in this appeal. (PIUS C.KURIAKOSE, JUDGE) ksv/- The order dated 28-8-09 in IA.2122/09 is annexed as part of the judgment dated 2-1-09 as per order dated 6-11-09 in AS.866/96 and a copy of that order is attached herewith. Sd/- Registrar Judicial. A.S.N0.866/1996 -8- PIUS C. KURIAKOSE, J. A.S. NO. 866 OF 1996 JUDGMENT 2nd January, 2009