OUSEPH MANI Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision petition has been filed by accused 1 to 24 who have been convicted by the Additional First class Magistrate, Meenachil for offences punishable under S.427 and 447 of the Penal Code. Accused 1, 2 and 4 were in addition found guilty & convicted under S.324 I.P.C. Pw. 1 is a medical practitioner who is living in a rented building at Kollamppally junction in Lalam Village in Meenachil Taluk. He purchased a plot of land by name Kollamppally purayidom in the name of his wife under a sale deed Ext. P5. He then started construction of the basement for a nursing home. The adjoining property belongs to the 25th accused who has been acquitted in the case. The prosecution case is that at the instance of the 25th accused the other accused who are his dependants formed themselves into an unlawful assembly and demolished the basement. On information received Pw. 1 went and objected and it is alleged that accused 1, 2 and 4 beat Pw. 1 with iron rods. Pw. 3 who was in the road rushed up to the place and removed Pw. 1 to his dispensary. Pw. 1 after some time went to his relation and at 7 p. m. the same day filed the complaint before the Meenachil police station. The accused denied the commission of the offence. On a consideration of the evidence learned Magistrate found the petitioners guilty of the offences under S.447 and 427 I. P. C., and accused 1, 2 and 4 of the offence punishable under S.324 I. P. C., and sentenced them to varying terms of imprisonment. The 25th accused who was charged for abetment of the offence was acquitted. On appeal the learned Additional Sessions Judge of Kottayam, on a reappraisal of the evidence, agreed with the conclusions of the learned Magistrate and confirmed the conviction and sentence. Aggrieved with the order they have come up in revision.

(2.) The first question that arises for decision is whether the property on which the basement had been put up and on which trespass is said to have been committed is in the possession of Pw. 1. It is a portion of the property comprised in S. No. 276/7 of the Lalam Village and is bounded on the west by the Palai - Thodupuzha road, on the south by a narrow lane and on the east and north by portions of the same survery number in the possession of the 25th accused. This property originally belonged to Kollamparambil Sankaran. As early as 1032 one fourth of the property had already been sold to one Kunjan Krishnan and Kotha Kochupennu. In 1093 the sons of Sankaran partitioned the remaining three fourth of the property under Ext. P. 4. The extent shown in Ext. P4 was 3 acres and 82 cents which was the extent of the entire property. One Chacko Mathai got the rights of four out of the six sons and also the rights of Kunjan Krishnan and Kotha Kochupennu. He in turn assigned his rights to the 25th accused under Ext. P-10 sale deed, reserving the extent of 13 cents at the extreme south for himself. Kuttan one of the six sharers purchased the share of his brother and sold what he got to Pw. 1 under Ext. P1 in December 1961. Ext. D4 Thandaper account shows that the two plots which were purchased by Pw. 1 from Kuttan had only an extent of 36 cents instead of 48 cents, and 56 cents instead of 75 cents shown in the documents. The payment of tax noted in Ext. D4 also shows that tax was being paid only for an extent of 36 and 56 cents. Ext. D8 chitta would show that the 6 sons of Sankaran had patta only for 3/4th of the property and the patta for the remaining 1/4th was in the name of Kunjan Krishnan and Kotha Kochupennu the vendees under Ext. D. 10. It is, therefore, contended for the petitioners that Pw. 1 could not claim title for any portion in excess of 36 and 56 cents and that the portion where the basement has been put up belongs to the 25th accused. Whether Pw. 1 could claim only 36 and 56 cents and whether the excess portions in the possession of Pw. 1 really belongs to the 25th accused are matters which have to be gone into in the civil suit that is said to be pending. Here the only question that would arise for decision is whether Pw. 1 is in possession of the property over which the basement had been put up.

(3.) The evidence of Pws. 2, 3, 4 and 5 besides the evidence of the complainant Pw. 1 would show that it was Pw. 1 who was in actual possession of the property and had constructed the basement. Witnesses speak of well defined boundaries enclosing Pw. 1's property. They have given evidence that there were fencing on both the northern and eastern sides. All the witnesses are uniform in saying that it was within this property that the basement had been put up. They are all neighbours and nothing has been brought out in their cross examination to discredit their evidence. Their evidence is also in conformity with the report of the commissioner appointed by the court in O. S. 61/62. The commissioner has reported about the presence of a row of stums of what appeared as 'Veli Pathal'. There can therefore be no doubt that Pw. 1 is in actual possession of this property.