IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 SA.No. 787 of 1998(B) ------------------------------- AS.104/1996 of SUB COURT, KASARAGOD OS.396/1987 of ADDL.MUNSIFF COURT, KASARAGOD .................... APPELLANT(S): RESPONDENTS/DEFENDANTS 2 TO 8 ----------------------------------------------------------------------------- 1. K.V.DDEAMODARAN, VILLAGE ASSISTANT, MULLIAR VILLAGE, PRASADAM, PADAVUVADKAM, MUTTATHODI, KASARAGOD. 2. ABDUL RAHIMAN, VILLAGE MAN, KUTTIKOLE VILLAGE, KASARAGOD TALUK. 3. SUMUKI, W/O. BETHUR KRISHNAN NAIR, MOLOTHUNGAL IN KUTTIKODE VILLAGE, KASARAGOD TALUK. 4. CHITHRANGADA. 5. CHITHRALEKHA 6. SULEKHA 7. RADHAKRISHNAN APPELLANTS 4 TO 7 ARE CHILDREN OF DECEASED BETHOOR KRISHNAN NAIR, AND ARE RESIDING AT MOLOTHUNGAL, KUTTIKOLE VILLAGE, KASARAGOD. BY SRI.M.C.SEN, SENIOR ADVOCATE BY ADV. SRI.A.PARVATHI MENON RESPONDENT(S): APPELLANT-PLAINTIFF ----------------------------------------------------------- MULLACHERRY KUNHAMBU NAIR, S/O. CHATHU NAIR, KUTTIKOLE VILLAGE, KASARAGOD TALUK, POST KUTTIKOLE. ADV. SRI.K.G.GOURI SANKAR RAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.2268/1998 IN S.A. NO.787/1998 DISMISSED 07/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 787 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of June, 2011. JUDGMENT Defendants 2 to 8 before the lower appellate court are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed to be in occupation of 5 cents of Government land in R.S. No.149/2 of Kuttikole Village for more than 20 years. He had put up a tiled shop building and was conducting a small trade therein. He attempted to put up a pent roof at the northern side of the said shop building. Earlier the plaintiff was given intimation regarding the proceedings initiated under the Land Conservancy Act ordering eviction. Though an appeal was preferred, that was dismissed. However, a further appeal was made to the District Collector, which was allowed and the Special Tahsildar was directed to S.A.787/1998. 2 assign A schedule property after following the necessary procedures. The plaintiff, in pursuance to the order of the District Collector, filed an application for assignment. While that was pending, on 5.5.1987 while the plaintiff was putting up the pent roof, defendants 2 and 3 came to the plaint schedule property and asked the plaintiff to stop the work. The plaintiff would say that since there was no justification in that demand, he went on with the work and on 6.5.1987 the defendants again came to plaint A schedule property and removed the pent roof and carried away the materials. The details of the materials so removed by the defendants have been mentioned in the plaint. On 31.7.1987 it is alleged that the defendants again came to the house of the plaintiff and attached his movables namely, one wooden dining table and one bench. Alleging that the acts of the defendants are unauthorised and unlawful, the suit was laid for damages. S.A.787/1998. 3 3. The defendants resisted the suit. They denied the occupation claimed by the plaintiff of 5 cents. According to them, proceedings under the Land Conservancy Act had been initiated against the plaintiff and they say that the appeal filed against the said order was dismissed. They however feigned ignorance regarding the order of the District Collector. They also feigned ignorance regarding the assignment application said to have been made by the plaintiff. On coming to know that the plaintiff was trying to put up an unauthorized construction in the Government land, the second defendant inspected the place and prepared a sketch and mahazar and submitted the same to the Tahsildar. The Revenue Inspector also inspected the property. The Tahsildar had issued order on 6.5.1987. In pursuance to the order thereof, the defendants carried out the work as directed by the Tahsildar. The articles so seized was sold in public auction on 24.9.1987. Whatever the defendants have done were in pursuance to the direction S.A.787/1998. 4 issued by the higher authority and in terms of the official duties conferred on them and they are not liable for the damages personally to the plaintiff. On the basis of these contentions they prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants did not adduce any evidence. Exts.X1 and X2 are third party exhibits. 5. The trial court on an appreciation of the evidence found that the defendants have acted in pursuance to the order of the Tahsildar and therefore they are not liable for any action done by them in pursuance to the said order. The suit was accordingly dismissed. 6. The plaintiff carried the matter in appeal. The lower appellate court reversed the finding of the trial court and decreed the suit. That brings the defendants before this court. S.A.787/1998. 5 7. Notice is seen issued on the following questions of law: “1. When the file relating to KLC 9/87 of Tahsildar, Kasaragod shows that the Tahsildar had endorsed an order for eviction of the encroachment made by the plaintiff, whether the defendants who are only subordinate employees under Tahsildar can be held liable for damages for carrying out the order. 2. Whether the lower appellate court can assume certain events, when the file shows the procedures contemplated under Land Conservancy Act has been followed, contrary to records. 3. Whether the defendants who are carrying out their duties could be sued for damages, by filing a suit against them in the individual capacity. 4. In the absence of an allegation in the plaint that the defendants had acted beyond their posers and when there is no allegation that the procedure under Kerala Land Conservancy Act has not been followed, whether the lower appellate S.A.787/1998. 6 court was correct in holding that there was no proper notice under the Land Conservancy Act.” 8. Learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in decreeing the suit reversing the judgment and decree of the trial court. The reasons given by the lower appellate court are unjustified in law and on facts. The lower appellate court seems to have formed an impression that Exts.X1 and X2 are concocted. According to the learned counsel there was no justification for such a conclusion and there is nothing to indicate that there has been any manipulation of the records. It is clear from the evidence that the actions taken by the defendants were in pursuance to the order issued by the Tahsildar and they had no option of the matter. Without making the Tahsildar a party, the suit could not have been considered. It is accordingly pointed out that the judgment and decree of the lower appellate court be set aside and that of the trial court restored. S.A.787/1998. 7 9. There seems to be considerable force in the above submission. The trial court has evaluated the evidence in detail and has come to the conclusion that the actions taken by the defendants were in pursuance to the order issued by the Tahsildar and they did not do anything personal or individually. 10. May be that an application for assignment by the plaintiff was pending before the appropriate authority. I will also assume that if the District Collector has allowed the revision filed by the plaintiff, the Tahsildar must have been aware of the same. Whatever that be, it is clear that there were two inspections by the second defendant and the Revenue Inspector. The Tahsildar found that the construction was unauthorized and he had directed plaintiff to remove the same and issued orders to the defendants. The defendants had therefore acted in furtherance of the order issued by the Tahsildar. S.A.787/1998. 8 11. The lower appellate court found fault with the defendants in not having adduced any evidence in this case. It was also noticed that though the suit is filed against the defendants in their individual capacity, the Government Pleader has appeared for them. Still it cannot be said that they were acting in pursuance to the order of the superior authority. One fails to understand the logic behind the reasoning. Merely because the Government Pleader appeared, it does not mean that there was no order by the higher authority. The mere fact that the defendants were brought on the party array in their individual capacity, cannot change the position when the evidence is clear to the effect that they were acting in furtherance of their official duty and in furtherance of the orders issued by the higher authority. 12. It is admitted even by the plaintiff that proceedings under the Land Conservancy Act was initiated against him. It is also admitted by the plaintiff that on S.A.787/1998. 9 5.5.1987 while the plaintiff was putting up pent roof he was directed to stop the construction. If the plaintiff was carrying on the construction on the basis of the order of the District Collector or any other authority, there was nothing prevented him from showing that to the defendants. They would have been apprised of the decision by the Collector or he could have filed objection to the so-called order to stop the work issued by the defendants to his construction in the puramboke land. Admittedly as on the date of the incident the plaintiff was occupying the puramboke land. Whatever that be, it is clear from the evidence on record that the defendants have acted in furtherance of the direction issued by the higher authority. 13. Faced with the above situation, learned counsel for the respondent pointed out that the so-called unauthorized construction was not in the puramboke land but was in his property and therefore the defendants have no right to take any action against him. Reference was S.A.787/1998. 10 made to Ext.A7 document. It is also contended that going by Section 102 of the Code of Civil Procedure, Second Appeal is not maintainable. 14. Both the contentions are without any merit whatsoever. It is very clear from the evidence that the plaintiff was putting up a construction in the puramboke land and that would be evident from the report of the Revenue Inspector and the Village Officer on which reliance was placed by the Tahsildar. At no point of time the plaintiff had any case that he was constructing pent roof in his own property. His stand throughout was that the property in which pent roof was constructing was subject matter of assignment and during the pendency of the application for assignment, the defendants ought not to have taken any action. As already noticed, there were two reports showing encroachment, and on that basis Tahsildar had ordered eviction. At the risk of repetition, one may notice that the S.A.787/1998. 11 defendants had merely obeyed the orders issued by the Tahsildar. Moreover, the evidence also shows that fine had been imposed on the plaintiff for unauthorized occupation. Therefore, the contention that the plaintiff was putting up construction in his own property cannot be accepted. Ext.A7 is of no help to the plaintiff. 15. As regards the contention based on Section 102 of the Code of Civil Procedure, it is without merits. The Section reads as follows: “102. No second appeal in certain suits.- No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.” A plain reading of the section shows that there is a bar under Section 102 CPC regarding suits, if they were in the nature of small cause suits cognizable by courts of small causes. It is well settled that the suit for damages does not S.A.787/1998. 12 fall within the ambit of Small Cause Courts Act. In the case on hand, the claim is one for damages so that prohibition under Section 102 is not attracted. For the above reasons, this appeal is allowed, the judgment and decree of the lower appellate court are set aside and that of the trial court are restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.