IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 AS.No. 594 of 1996() -------------------- OS.76/1993 of SUB COURT, KASARAGOD .................... APPELLANT: (2ND DEFENDANT) -------------------------------------------------------- NARAYANA BHAT S/O. KRISHNA BHAT RESIDING AT BALAKKA KARADKA VILLAGE KASARAGOD TALUK BY ADV. SRI.D.KRISHANA PRASAD,JOJI VARGHERSE, SRI.HARI SHARMA.M. RESPONDENTS (PLAINTIFF & 1ST DEFENDANT) ------------------------------------------------------------------------------ 1. GOWRI, W/O. SREEKRISHNA BHAT RESIDING AT PADRE VILLAGE P.O.VANINAGAR KASARAGOD TALUK 2. SUBRAMANYA BHAT S/O. KRISHNA BHAT RESIDING AT BALAKKA KARADKA VILLAGE KASARAGOD TALUK R2 ADV. SRI.M.C.SEN,PARVATHI A.MENON SMT.SHAHNA KARTHIKEYAN FOR SRI.S.PRAKASH FOR R1 SRI.P.S.KRISHNA PILLAI FOR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. SURENDRA MOHAN, J ------------------------------------------------------------ A.S. NO: 594 OF 1996 ----------------------------------------------------------- Dated this the 25th June, 2009. JUDGMENT This is an appeal filed by the second defendant in a suit for recovery of damages. The suit was filed seeking to recover damages for loss caused to the plaintiff by the destruction of an arecanut garden. As per judgment and decree dated 20.2.1996 in O.S.76/1993, the Subordinate Judge, Kasaragod has decreed the suit against the appellant/second defendant allowing the plaintiff to recover an amount of Rs.30,000/- as damages. This appeal is against the said judgment and decree. 2. According to the plaintiff, she obtained delivery of the plaint 'A' schedule properties on 20.3.1993 in E.P.No: 15/1987 in O.S. 38/1977. The suit O.S.38/77 had been filed by her for partition and a preliminary decree was passed in the suit on 6.9.1978 finding that the plaintiff was entitled to 1/9 share in the properties. Thereafter I.A.412/1978 was filed by the plaintiff for passing a final decree. Accordingly on 27.1.1982 a final decree was passed allotting the 'A' schedule property to her. The final decree was challenged by the first defendant in A.S.291/1982 before this Court. The matter had remained stayed as per the orders of this A.S.594/1996 2 Court. Subsequently, after disposal of the appeal delivery of the property was effected on 20.3.1993. 3. The plaintiff alleged that the defendants were in possession of the 'A' schedule property along with their mother Rugmani Amma who died on 23.1.1988. Thereafter, the defendants continued in possession of the property. During the life time of Rugmani Amma she had planted 70 arecanut seedlings in the property, out of which only 45 arecanut plants are now surviving. The plaintiff alleged that the defendants had neglected the properties completely and as a result of such neglect, the properties suffered extensive damage. At the time of passing of the final decree, according to the plaintiff there were 200 yielding arecanut palms fetching an yield of about 1 kandi of arecanuts annually. Due to improper maintenance all the yielding arecanut palms except 7 perished and the arecanut seedlings in the property were also lost. The plaintiff estimated the loss at Rs.73,197.60. She filed the suit praying for a decree for realisation of the said amount from the defendants with future interest and costs. 4. The first defendant filed written statement contending that he was not in possession of the suit properties. The second defendant was in possession thereof along with their mother A.S.594/1996 3 Rugmani Amma. After her death, the second defendant continued in possession and management of the properties along with other properties. He alleged that the present suit was filed in collusion with the second defendant only to harass him. In 1983 and 1984, several trees in the 'A' schedule properties and in the adjoining gardens died due to scarcity of water. He contended that the damages estimated was imaginary, the plaintiff has actually not suffered any loss and therefore the first defendant was not liable to pay any damages to her. 5. The second defendant filed written statement contending that the first defendant had taken forcible possession of the properties in O.S.38/1977 immediately after the preliminary decree in 1978 and ever since, he alone was in possession of the entire properties and, therefore, he was liable for the damages if any. It was also pointed out that the plaintiff had not taken any appropriate legal steps for the preservation and management of the properties and, therefore, she was estopped from claiming damages. Therefore, the second defendant prayed for the dismissal of the suit. 6. The suit was tried by the court below on the above pleadings, after framing five issues. The husband of the plaintiff A.S.594/1996 4 was examined as P.W.1 and Exts.A1 and A2 documents were marked on her side. The second defendant was examined as D.W.1 and Exts.B1 to B3 documents were marked for the defence. Ext.C1 is the commission report filed in the case. 7. The court below considered the evidence on record in the light of the pleadings and the attendant circumstances and came to the conclusion that the plaintiff has not been able to prove that she had suffered any loss and therefore she was not entitled to realize the amount claimed as damages by her. However, the Court found that she could be granted nominal damages and fixed the amount at Rs.30,000/-, to be realized from the second defendant with future interest at the rate of 10% per annum with proportionate costs. The said findings are challenged in the above appeal. 8. It is pointed out that the claim of the plaintiff in the present suit could have been raised in the earlier partition suit, O.S.38/77 and, not having done that, the present suit was barred under Order II Rule 2 Civil Procedure Code. It is further pointed out that the plaintiff had a duty to do some act in mitigation of the loss or damage. She could have got a receiver appointed for the property for preservation of the same, which she did not do. Since she did not make any effort to safeguard the property, she is not A.S.594/1996 5 entitled to claim any amount as damages, it is contended. Apart from the above, it is pointed out that there is no evidence in the present case to show the nature of the loss suffered by the plaintiff and there is no quantification of the damage caused. Since mesne profits has been decreed in the earlier suit, it is contended that the plaintiff is not entitled to recover any further amount as damages. Therefore the court below has gone wrong in awarding the amount of Rs.30,000/- as damages, it is pointed out. It is also contended that if at all the plaintiff has any claim it is only against the first defendant and not against the second defendant. 9. On behalf of the plaintiff, it is submitted that the final decree was passed in 1982. From then on the plaintiff was a co- owner in respect of the properties. From 1982 to 1993, the position of the defendants was that of trustees, it is contended. The plaintiff came to know about the damage only when she got delivery of the property. Therefore Order II Rule 2 CPC has no application. The cause of action here is distinct and separate and did not form part of the cause of action of the earlier suit. The fact that a decree for mesne profits was passed in the earlier suit does not preclude the plaintiff from pursuing a claim for damages for the loss suffered by her. The loss was a direct result of the neglect A.S.594/1996 6 on the part of defendants to carry out maintenance for preserving the improvements. Therefore, the plaintiff prays for dismissal of the appeal. 10. I have heard learned counsel appearing for the appellant Shri. D. Krishna Prasad, Shri. B.S.Krishna Pillai for the first respondent and learned Senior Counsel Shri. M.C.Sen for the second respondent. I have been taken through the pleadings as well as the evidence in detail. 11. The point that arises for consideration is :- “Whether the court below is justified in awarding an amount of Rs.30,000/- as damages to the plaintiff?” 12. According to the plaintiff, Ext.A2 final decree passed in the earlier suit between the parties show the presence of 200 arecanut trees in the property. However, it is alleged that they are no longer there at present. Therefore, what the plaintiff has claimed in the present suit is damages for loss suffered after the passing of the final decree, Ext.A2. The said claim could not have been raised in O.S.38/77, the earlier suit. The claim of the plaintiff is also distinct and separate from the claim of mesne profits that has been decreed in O.S.38/1977. Therefore, the suit is not hit by A.S.594/1996 7 the bar under Order II Rule 2 CPC. Nor does the decree for mesne profits granted in O.S.38/77 disentitle the plaintiff from pursuing her claim for damages. 13. The question is whether the defendants or one of them, could be made liable for the damages claimed by the plaintiff. The court below has found that the second defendant was in possession of the property for the reason that Ext.A1 delivery receipt shows that the property was taken delivery of from him. According to D.W.1 he signed the delivery receipt only because the first defendant refused to sign the same. The Court also noticed that the decree for mesne profits has been passed against Rugmini Amma and second defendant who were found to be in possession of the properties at the time of final decree. The Court finds that there is no evidence to show that the first defendant has taken forcible possession of the property after the preliminary decree or the final decree. Therefore, it has been found that the first defendant was not in possession of the property. This finding is vehemently attacked by the counsel for the appellant who points out that there is no claim for recovery of damages from the second defendant in the plaint. According to him the question as to who should be made liable to pay damages can arise only on it being A.S.594/1996 8 shown that the plaintiff had suffered damages as claimed in the plaint. In the present case, there is no evidence regarding the extent of damages suffered by the plaintiff. After discussing the evidence on the point, the court below has found as follows:- “The plaintiff has not satisfied the court that she had actually suffered the damages as estimated in the plaint. Now the position is that there is no reliable material where from it can be safely concluded that the plaintiff has suffered a definite amount by way of damages.” 14. In view of the above, the court below has proceeded to award 'nominal damages'. The court below has thereafter awarded an amount of Rs.30,000/- which is absolutely without any basis. Having found that the plaintiff has not satisfied the Court that she has actually suffered any particular amount as loss, there is no justification for awarding the amount of Rs.30,000/- as damages. There is no material or evidence to show how the amount of Rs.30,000/- was arrived at. 15. The plaintiff has not filed any appeal challenging the quantum of damages awarded by the court below. The amount of Rs.30,000/- is substantial, in comparison with the plaint claim and cannot be characterised as nominal. The Court below erred in awarding the said amount without any basis, after having found A.S.594/1996 9 that the plaintiff had not succeeded in proving her claim. Therefore, the appeal is allowed, the judgment and decree of the Court below are set aside and O.S.76/1993 of the sub Court, Kasaragode is dismissed. No costs. K. SURENDRA MOHAN Judge jj A.S.594/1996 10 K.SURENDRA MOHAN, J. -------------------------------- A.S.NO:594 OF 1996 -------------------------------- JUDGMENT Dated: 25th June, 2009.