Madras High Court
Ayyampillai vs Kalaisamy on 1 December, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/12/2011 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Second Appeal (MD) No.255 of 2006 Ayyampillai ... Appellant Vs Kalaisamy ... Respondent Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.22 of 2005 dated 24/10/2005 on the file of the Sub-Court, Kovilpatti, confirming the Judgment and Decree passed in O.S.No.9 of 2004 dated 5/10/2004 on the file of the District Munsif Court, Vilathikulam. !For Appellant ... Mr.V.S.Balamurugan for Mr.A.Sankarasubramanian ^For Respondent ... Mr.B.Rajesh Saravanan - - - - - - :JUDGMENT
The Appellant/Plaintiff has filed the present Second Appeal as against the Judgment and Decree passed in A.S.No.22 of 2005 dated 24/10/2005 passed by the Learned Special Judge, Kovilpatti in confirming the Judgment and Decree dated 5/10/2004 in O.S.No.9 of 2004 passed by the Learned District Munsif, Vilathikulam.
2. THE PLAINT FACTS: The Appellant/Plaintiff is residing at Vilathikulam Village and he has own lands besides the Government lands taken on lease. The Appellant/Plaintiff is enjoying the suit property approximately for the past 18 years and has paid the kist. He has made improvement in the suit land by planting different types of trees like Coconut Trees, Mango Trees, Palm Trees, Guava Trees, Neem Trees, etc., and has nurtured them. He has obtained 2 (c) patta from Vilathikulam Tahsildar, by filing a necessary application as per order dated 3/4/1998 and based on the same, he has been in enjoyment of the suit property continuously. The Respondent/Defendant has no communication in the suit property. The Respondent/Defendant is residing at Zameen Sengapadai Village, which is very near to the suit property and taking advantage of the same, has planned to steal the trees in the suit land and accordingly, has conspired with his deceased father Perumal Nadar and jointly, on 12/5/1998, at about 10.00 in the morning, trespassed into the suit property and has cut the five Neem trees, 6 Morinda Trees and 2 Guava trees and caused damage and has carried away the wooden pieces. The loss caused by the Respondent/Defendant and his father has been valued at Rs.25,000/-.
3. The Appellant/Plaintiff immediately lodged a complaint against the Respondent/Defendant and his father by filing a petition and Vilathikulam Police has registered a case in Crime No.147 of 1998 under Sections 120 (b), 421, 420, 379 and 506 (ii) of the Indian Penal Code. After investigation, the Police has filed a charge sheet against the Respondent/Defendant and his father before the Learned Judicial Magistrate, Vilathikulam. The case has been taken on file in C.C.No.43 of 2000. In the meanwhile, the Respondent/Defendant's father Perumal Nadar died. Hence, the criminal case, has been proceeded against the Respondent/Defendant.On 27/6/2000, the Respondent/Defendant admitted the offence before the Learned Judicial Magistrate, Vilathikulam by putting in writing that he has cut the trees and based on admission, the Respondent/Defendant has been fined a sum of Rs.250/- for the offence under Section 427 IPC; under Section 447 IPC he has been fined a sum of Rs.250/-; under Section 506 (ii) IPC, he has been imposed a fine of Rs.500/- and in all, he has been directed to pay a fine of Rs.1,000/- and the said fine amount has been paid by the Respondent/Defendant.
4. At the time of conclusion of the criminal case, no compensation order has been passed for the loss of Rs.25,000/- caused to the Appellant/Plaintiff. Also, the Appellant/Plaintiff has incurred a loss of Rs.500/- through the trees. Since the Respondent/Defendant has deliberately cut the trees valued at Rs.25,000/- in the suit property is liable to pay a compensation of Rs.25,000/- to the Appellant/Plaintiff. Also, the Respondent/Defendant is liable to pay a sum of Rs.500/- as compensation towards the loss of income to the Appellant/Plaintiff.
5. The Appellant/Plaintiff has caused a Lawyer's notice dated 28/9/2001 to the Respondent/Defendant. The Respondent/Defendant has received the Lawyer's notice on 4/10/2001, but has not sent a reply. Hence the Appellant/Plaintiff has filed a suit against the Respondent/Defendant claiming a sum of Rs.25,000/- for causing damage by cutting trees in the suit property and also for the loss of income of Rs.5,000/- caused by the Respondent/Defendant. Further, the Appellant/Plaintiff has claimed a sum of Rs.14,000/- towards interest amount from 28/9/2001 being the date of notice sent by him to the Respondent/Defendant and in all, the Respondent/Defendant is liable to pay a sum of Rs.44,000/- together with subsequent interest.
6. THE WRITTEN STATEMENT AVERMENTS:- It is false to state that the Appellant/Defendant has been in enjoyment of the suit property for the past ten years and has been paying the kist receipts. Equally, the averment of the Appellant/Plaintiff that he has made improvement in the suit land and has planted different types of trees like Coconut Trees, Mango Trees, Palm Trees, Neem Trees, etc., and further, he has been granted 2 (c) patta as per the order of the Tahsildar dated 31/4/1998 are all false. Also, the plaint averment that the Respondent/Defendant has been residing near the suit property and he has been residing at Zameen Sengapadai and taking advantage of the same, he has planned to steal the trees along with his deceased father and in pursuance of the same, has trespassed into the suit property on 12/5/1998 at about 10.00 in the morning and has cut the different types of trees are also false. In fact, the suit property belongs to the Government. The suit property initially has been enjoyed by Ponnusamy of Kottanathan Village. Thereafter, along with the suit property, the poramboke land adjacent to the suit property has also been annexed by the Respondent/Defendant's father. The suit property is the southern property to the poramboke property enjoyed by the Respondent/Defendant. Since the Appellant/Plaintiff has demanded the sale of the Respondent/Defendant's place situated on the northern side of the Plaintiff's property and since the Respondent/Defendant's father and the Respondent refused to sell the same, out of enmity, the Respondent/Defendant has been given trouble by the Appellant/Plaintiff.
7. In the meanwhile on 9/8/1998, the Respondent/Defendant and others have entered into the suit property and has cut five Neem Trees, etc., has not been complained to Vilathikulam Police Station. In another place, the Respondent/Defendant and others have cut the trees, the Appellant/Plaintiff has lodged a complaint before Vilathikulam Police Station. After obtaining anticipatory bail and when the case has been conducted by his father, his father died on amount of illness and since, he has to look after the family affairs and also to look after the agricultural operations, he has voluntarily come forward not to conduct the criminal case any further and has admitted the matter. This has been taken advantage of by the Appellant/Plaintiff and accordingly, has filed a compensation case against the Respondent/Defendant. For compensation amount claimed, no interest can be claimed, after the criminal case concluded on 27/6/2000, four years later, the Appellant/Plaintiff has filed the case and this shows the bad intention against the Respondent/Defendant. At any point of time, the Appellant/Plaintiff has not enjoyed the suit property.
8. Before the trial Court, in the main suit, two issues have been framed for admission. On behalf of the Appellant/Plaintiff, witness P.W.1 and Exs.A.1 to A.7 have been marked. On the side of the Respondent/Defendant witness, D.W.1 has been examined and no exhibits have been marked.
9. The trial Court, after contest, on an appreciation of oral and documentary evidence available on record in its Judgment has among other things observed that the private complaint has been given before the Court on 5/6/1998 but the suit has been filed initially on 21/10/2002 before the Sub-Court, Kovilpatti and later, it has been taken on file as O.S.No.86 of 2002 and that the present suit has been filed four years, four months and 16 days, after filing of the private complaint, which cannot be accepted and resultantly, dismissed the suit, with the costs of the Respondent/Defendant.
10. Being dissatisfied with the Judgment and Decree of the trial Court in O.S.No.9 of 2004 dated 5/10/2004, the unsuccessful plaintiff as an Appellant, has filed A.S.No.22 of 2005 before the Sub-Court, Kovilpatti.
11. The First Appellate Court, viz., the Learned Sub-Judge, Kovilpatti, while passing the Judgment in A.S.No.22 of 2005 on 24/10/2005 has inter alia observed that, the Appellant/Plaintiff has not clarified that he has a right to claim compensation from the Respondent/Defendant and further held that the Appellant/Plaintiff has filed the suit, after a long lapse of time and since he has not proved that he has suffered a loss, the Appellant/Plaintiff is not entitled to claim the relief and accordingly dismissed the appeal, without costs, by confirming the Judgment and Decree of the trial Court.
12. At the time of admission of the Second Appeal, this Court has formulated the following substantial question of law for determination:-
"Whether the acknowledgement of liability by the defendant was not considered in calculating the period of limitation by the Court below?"
13. THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTION OF LAW:- The Learned counsel for the Appellant/Plaintiff urges before this Court that the trial Court as well as the First Appellate Court, have committed an error in dismissing the suit filed by the Appellant/Plaintiff on the ground of limitation.
14. According to the learned counsel for the Appellant/Plaintiff, the suit is one for compensation in regard to the damages caused by the Respondent/Defendant, in Appellant/Plaintiff's property and that the starting point of limitation is 27/6/2000 and if the limitation is calculated from that date, the suit claim is not barred.
15. The stand of the Appellant/Plaintiff is that both the Courts below have not given due weightage to Ex.A.7 receipts and also they have taken a wrong view that trees which are the subject matter of the suit have not been excluded in Ex.A.6 2 (c) patta.
16. Lastly, it is the contention of the learned counsel for the Appellant/Plaintiff that Article 98 of the Limitation Act is not applicable to the facts of the suit and as such, it has no application whatsoever. But this aspect of the matter has not been adverted to by the Courts below in a proper and real perspective.
17. P.W.1 (Appellant/Plaintiff) in his evidence has deposed that he is in enjoyment of the suit property and apart from the suit land, he has another land in his name and for the past 18 years, he is in enjoyment of the suit property and further, he had made reclamation in the suit property and has been raising Coconut Trees, Neem Trees, Palm Trees, Morinda Trees and Guava Trees and he has maintained the same by raising it.
18. The evidence of P.W.1 is to the effect that since he has planted the aforesaid trees in the suit property and has been in enjoyment of the same, he requested for issuance of 2 (c) patta in his favour and that 2 (c) patta has been issued to him in his favour on 3/4/1998 and even after the issuance of 2
(c) patta in his favour, he has been in enjoyment of the suit property and that the Respondent/Defendant has no manner of right in the suit property.
19. P.W.1 in his evidence (in chief-examination) has deposed that it is not correct to state that after 27/6/2000, four years later with bad intention, he has filed the case. Further P.W.1 in his evidence has deposed that it is not correct to state that the complaint he has been before the Police Station is not in respect of the suit property.
20. D.W.1 (Respondent/Defendant) in his evidence has deposed that the Appellant/Plaintiff has given a complaint against his father and himself before the Police Station that they have cut the trees in the suit property and the Police have filed a case against them and since his father has expired and since he has to look after agriculture work. He has not prosecuted the case any further admitted the offence and the Police have not recovered any trees from him.
21. D.W.1 (in his cross-examination) has deposed that he has not issued any Lawyer's notice in regard to the enmity that adverted between himself and the Appellant/Plaintiff and he has not brought the patta.
22. A perusal of Ex.A.1 Judgment in C.C.No.43 of 2000 dated 27/6/2000 shows that the Respondent has voluntarily admitted the offence but informed the Court that he is poor and that his father expired and has sought for a lesser punishment being awarded to him. After considering his request and also taking into account the circumstances of the case, criminal Court, imposed a fine of Rs.250/- for the offence under Section 427 IPC to the Respondent/Defendant and in default of payment of fine has awarded one month Simple Imprisonment and in respect of 506 (ii) IPC offence, a fine of Rs.500/- has been imposed in default to undergo 3 months Simple Imprisonment. In all, the Criminal Court, left a total fine of Rs.1,000/- admittedly in C.C.No.43 of 2000 on the file of the District Munsif - Judicial Magistrate Court, Vilathikulam, properties have not been produced before the Court.
23. In Ex.A.2, the Appellant/Plaintiff's Lawyer's notice addressed to the Respondent/Defendant, the Appellant/Plaintiff has stated that the Respondent/Defendant along with his father have trespassed into the suit property on 12/5/1998 at about 10.00 in the morning and has cut 5 Neem Trees, 6 Morinda Trees, etc., and further, they carried away the trees, causing a loss of Rs.25,000/- to the Appellant/Plaintiff. Also the Appellant/Plaintiff has lost the income of Rs.5,000/- to be derived from the said trees and since the trees have been cut, the Appellant/Plaintiff has suffered a loss of income as income of Rs.5,000/- as referred to earlier.
24. In short, in Ex.A.2, the Appellant/Plaintiff has claimed a total sum of Rs.44,000/- towards damages/compensation in respect of the cut trees (Rs.25,000/- for the value of trees and an interest of Rs.14,000/- from 12/5/1998 till the date of notice amounting to Rs.14,000/- and also claiming a sum of Rs.5,000/- towards loss of income.
25. Ex.A.5 is the certified copy of charge sheet filed by Vilathikulam Sub-Inspector of Police under Sections 427, 447 and 506 (ii) IPC against the Respondent/Defendant's father viz., Perumal Nadar.
26. Ex.A.6 is 2 (c) patta dated 3/4/1988 issued by Vilathikulam Tahsildar. In Ex.A.6 Vilathikulam, Tahsildar proceedings, it is among other things mentioned that in S.No.452/1 lake poramboke, there are 48 young Coconut Trees, 22 fruit bearing Palm Trees, 2 young Palm Trees and 4 young Mango Trees for which 2 (c) patta has been ordered to be issued.
27. In the instant case, the Respondent/Defendant, after the death of his father (A.1) in C.C.No.43 of 2000 on the file of the Learned Judicial Magistrate, Vilathikulam has voluntarily admitted the offence. Based on his tacit admission, the Learned Judicial Magistrate, Vilathikulam has found the Respondent/Defendant guilty under Section 427, under Sections 447 and 506 (ii) of IPC and in all, imposed a fine of Rs.1,000/- together with default sentences. When the Respondent/Defendant has admitted the criminal offence as seen from Ex.A.1 Judgment in C.C.No.43 of 2000 dated 27/6/2000 passed by Vilathikulam Learned Judicial Magistrate, then the First Appellate Court in its Judgment in paragraph 9 in A.S.No.22 of 2005 is not correct in mentioning that the Appellant/Plaintiff has not established that in the suit property, Neem Trees, Morinda Trees and Guava Trees have been standing. The filing of charge sheet by the concerned Police as per Ex.A.5 charge sheet dated 18/5/1999 is clearly an adverse circumstance which goes against the Respondent/Defendant.
28. The trial Court while dismissing the suit has among other things observed that the Appellant/Plaintiff has clearly stated in the plaint the date of cutting of the tree, the Appellant/Plaintiff has given a prior complaint and the same has been forwarded to the Police Station and that the Police have enquired and later have registered the First Information Report and sent the same to the trial Court. The private complaint has been filed on 5/6/1998 before the learned District Munsif-Judicial Magistrate, Vilathikulam. But the suit originally filed before Kovilpatti Sub-Court on 21/10/2002 and it has been taken on file as O.S.No.86 of 2002. It is crystal clear that the suit has been filed four years after the lodging of the private complaint. The trial Court has mentioned these factual details in its Judgment in suit and accordingly, rejected the suit claim of the Appellant/Plaintiff and consequently dismissed the suit with costs.
29. The Learned counsel for the Appellant/Plaintiff cites a decision in RAM MEHAR Vs. MUKHTAR SINGH reported in AIR 1980 ALLAHABAD - 282, wherein it has held as follows:-
"In the third column of Art.80 of the expression 'the date of the seizure' should be read along with the first column of Art.80. The seizure referred to in the first column is wrongful seizure. Therefore, the date of the seizure in the third column should be taken to be the date of wrongful seizure. Thus, where objection to attachment were filed under Order 21 Rule 58 but were dismissed and a suit filed under O.21 R.63 was decreed, the attachment becomes wrongful from the date of decree and the period of one year commences from that date."
30. It is the contention of the Learned counsel for the Appellant/Plaintiff, the Appellant/Plaintiff has filed the suit for compensation before the trial Court claiming damages for cutting of the trees in the suit property by the Respondent/Defendant and his father and therefore, the period of limitation commences from the date when the seizure becomes wrongful. In the present case, as seen from Ex.A.1 Judgment of the Criminal Court in C.C.No.43 of 2000 dated 26/6/2000 no properties have been produced before the Court.
31. Per contra, it is the contention of the Learned counsel for the Respondent/Defendant that as per Article 91 of the Limitation Act further claiming compensation, the limitation is three years period and the limitation begins when the person having the right to the possession of the property first learnt in whose possession it is.
32. In SUDARSANAMMA Vs. RAGHAVIAH reported in (1996) 1 ANDHRA WEEKLY REPORTER- 218, it is held that "A suit for compensation for wrongfully taking away mica from the plaintiff's land is governed by clause (a) of Article 91 of the Limitation Act."
33. At this juncture, this Court pertinently points out that where a suit for recovery of value of trees illegally felled and sold by the defendant. It is held that the suit will be governed by Article 113 of the Limitation Act and the Limitation would begin from the day when the date of the suit accrued and each felling of tree would give rise to a separate cause of action as per decision RAJESHWAR SINGH Vs. STATE OF HIMACHAL PRADESH reported in 2002 (3) SHIMLA LC - 165.
34. Before the trial Court, a plea on behalf of the Appellant/Plaintiff has been taken that only after getting the complaint copy from the criminal Court, the factum of theft the Appellant/Plaintiff has come to know and the Criminal Court Judgment in C.C.No.43 of 2000 has been delivered on 27/6/2000 as per Ex.A.1 and from the date of receipt of the copy of the Judgment viz., on 25/4/2003, the cutting of trees by the Respondent/Defendant has come to know and as such the Appellant/Plaintiff is entitled to file within three years and therefore, the suit filed by the Appellant/Plaintiff is in time.
35. Ex.A.4 is the Certified Copy of First Information Report dated 9/8/1998 obviously on a petition from the Appellant/Plaintiff, which has been forwarded to the Police, the Police based on the same, has registered the First Information Report in Crime No.147 of 1998 under Sections 120 A, 441, 420, 379 and 506 (ii) IPC. As per Section 200 of Cr.P.C., a private complaint has been filed before the learned Usilampatti, Judicial Magistrate on 5/6/1998. The occurrence of cutting trees in the suit property by the Respondent/Defendant is said to have taken place on 12/5/1998 at about 10.00 in the morning. The suit claiming compensation for cutting of trees and the loss of income owing to the cutting of trees etc., has been originally filed on 21/10/2002 before the Sub- Judge, Kovilpatti and it has been taken on file as O.S.No.86 of 2002 on 28/10/2002. On the point of jurisdiction, the said suit has been transferred from the Sub-Court, Kovilpatti on 16/3/2004 to the learned District Munsif Court, Vilathikulam and it has been received by the trial Court on 2/6/2004 and renumbered as O.S.No.9 of 2004. From the date of filing of the private complaint on 5/6/1998 and when the present suit has been filed on 21/10/2002 initially before Kovilpatti Sub-Court and later, it has been numbered as 86 of 2002, it is clear that after the filing of the private complaint, four years, 4 months and 16 days later, the present suit has been filed. Therefore, the suit for compensation for damages filed by the Appellant/Plaintiff before the trial Court is not filed within three years when the right to sue has accrued to him as per Article 113 of the Limitation Act. Suffice it for this Court to point out that the suit filed by the Appellant/Plaintiff before the trial Court is hopelessly barred by limitation. Admittedly, in the criminal Case in C.C.No.43 of 2000 no trees have been seized and produced by the Police. As such the invocation of Article 80 of the Limitation Act by the Appellant/Plaintiff is of no avail. In any event, the admission of offence by the Respondent/Defendant in the Criminal Court and on that admission, the Criminal Court passing the Judgment on 27/6/2000 as per Ex.A.1 will not be the cut off date for calculating the period of Limitation. Accordingly, the substantial question of law is answered against the Appellant/Plaintiff.
36. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court in A.S.No.22 of 2005 dated 24/10/2005 and the Judgment and Decree dated 5/10/2004 in O.S.No.9 of 2004 passed by the trial Court are affirmed by this Court, for the reasons assigned in this Appeal.
mvs.
To
1. The Sub-Court, Kovilpatti
2. The District Munsif Court, Vilathikulam.