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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19'?" DAY OF OCTOBER 2010
BEFORE
'I'HE H()N'BLE MRJUSTICE s.N.sA1:YANARAYAfNAf"--«.;' __
R.F.A.NO. 1033/2000
BETWEEN:
RAMESH KUMAR
S/O. , MAJOR
R/O.NO.188, 2ND STAGE
INDIRANAGAR,
BANGALORE-38
REPTD BY HIS P.A.H01.DER _ _
B R JAYANTH S/ORAMA BHATTLQ.
MAJOR, R/OBEDUR VIL1;,AGE,'j* A . _
AVINAHALLI HOBLI -- " ; 0 APPELLANT
(By Sri,;:V OTTGGTZALTA ';?siDvj T
AND
M RTTVIURYJGESTLAVPVPA
" ..S/O..SHAN'FHAMALL'IKARJUNAPPA GOWDA
.MA10E,A0RIcULTURIsT.
__R/Q'.I»{fASAP,UR 'VILLAGE,
_P:QELI
Ho__sANA0AE._ 'Jag RESPONDENT
‘V._(By Sri ;’H.K.BAsAVARAJ, ADV)
‘”‘j_~TH1s REA IS FILED U/S.96 CPC AGAINST THE
ORDER DATED 23.11.2000 PASSED IN 0.S.NO.99/97 ON
FILE OF THE CIVIL JUDGE (SR.DN.), SAGAR,
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DISMISSING THE SUIT FOR THE RELIEF OF
DECLARATION.
THIS APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
This is plaintiffs appeal challenging the
court below so far as it pertains to issue Nos,2;’!l, 7 _
The parties to this appeal are referredfltol lb}; their
court below.
2. Brief facts leading to this lfap.pea_l are as
Defendant is owner .landvl.,n1eastutfiilig_ to an extent of
11 acres 29. guntasviin f3;§f.fi’*IQ.].3_;} situate at Masroor viiiage,
Kerehalfilliiohli, The plaintiff entered into
an agreement with ‘defendant on 18.5.1992 for purchase of
woodland as well as jungle wood. The rate
the parties is Rs.350/– per Cft where girth of
teal—;__is 123.300/– per Cft where girth is 2 to 4 feet and
/{Zper Cft where girth is 2 feet. It was also agreed that
would be given fire wood free of cost. At the time of
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agreement, a sum of Rs.1,()0,000/~ was paid by plaintiff to
defendant and balance was agreed to be paid at a later stage.
3. Plaintiff state that, subsequently he paid vanothser
sum of Rs.25,000/-. However, the same was
on the agreement of sale, which is at Ex.P2.f the
entire extent of Sy.No.134 measure acres’
In that, a tenant of defendarltg Eernioji tit’j:C.xt0V.”‘_’
an extent of 2 acres 36 guntas}..:Since said’VVS3%’.No;:134 was
not phoded demarking ‘the of defendant and
Bernioji Rao plaintiff couslddVfnot_.~.,_::i1ni’n_e,t1iate1y secure
permission for ‘i-C:t1_tting*__ and~~’:remov:i£ng____trees. In view of
circular.’ fjoxrerninent, which is at Ex.P3,
perrnissionrtoifellffftreées have to be obtained in the name
of o,Wat1eri*\of theaiand. Therefore, a power of attorney was also
‘exeontedwfbygdefendant in favour of plaintiff vide Ex.P27.
4._ plaintiff after getting dispute regarding the
“i.,.bound*ary:. of defendants property sorted out, secured
neeessary permission from the authorities for felling of trees.
‘ Tihough in the agreement three years time was stipulated
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substantial time was spent by defendant in getting his
portion of property identified to enable plaintiff t0_.-._’-‘3lZaI’t
felling of trees. Therefore, plaintiff himself
responsibility of sorting out problem between ‘
his tenant, thereafter, permission was secured byrhim ‘ingth’e_
year 1995. He also applied for perrnission ‘lfor’tsrans;>o1tatioi;1:
of wood in the naine of defend§3V.r_it~..e..g’
5. Before applying for p_erifnissi.on for’-transgfiortation,
plaintiff got entire stored in the
same survey number. obstructed
shifting of felled his and also moved
authorities for eanr:_ellat’ion”” of transportation permit issued
in his name ‘on Vtliellrstrenigtli of special power of attorney.
it matter” ‘stovod thus, the authorities issued an
.Aei1dorsen5.ent”«–to the effect that, since difference between
defelndant is in respect of agreement for sale of
timber i.;he’sa1ne will have to be resolved in a proceedings
jtiefore Civil court and until the same is resolved they will not
‘plerrnit removal of felled timber and the wood.
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6. In this background, the suit is filed by plaintiff
seeking relief of declaration that he is entitled to shift timber
and fire wood cut and stored in suit schedule land andalso
for a declaration that he is entitled to secure
permit in his name from the Deputy Conservatorof *
Shimoga or any other appropriate __au.thority”fo’r’*:rernoval.V of
same after payment of baiance7.psa’le~”coi:1Si'(£eration–,’altoi
defendant as specified in agrecrnent dated
7. In the said:aproceedingsp,’._defendant”V entered
appearance, filed his written}’staten’1ent1′ in one breath
denying executionjpoff agreernent bettvjeen himself and plaintiff
on 18.31992 ‘timber and also receipt of advance of
Rs.l,25,00’0,_[¥ as” by plaintiff, in another breath
admitting that agreement was entered into between
apndjhimself on 18.5.1992 for cut and removal of
L-‘;:nber of agreement, however, subsequently
p1aintiff–.requ”ested him to refund entire advance amount paid
._by,,i_hirn”‘ under agreement. Hence, he himself secured
perniission from authorities for cutting of trees in his land,
-~-he cut the timber and as well as fire wood and stored it in
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his property.
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When he applied for permission for
transporting the cut timber and the wood plaintiff raised
objection for the same before authorities.
8.
With these rival contentions trial Court
frame the following issues:
1} Whether the plaintiff proves th’_a1~
agreed to sell the enti_r_e standing
fire wood grown in suit on
18.5.1992 and _ received..gdvanlCs.,. attiottrlt of
Rs.1,00,000/– _exec1%tted agreement?
2) whether the plaintiiff ‘ptfeyee. ‘ at the time o
reeeivilng…V_furtfter”-a;jx_ra;t1ce amount of Rs.25,000/–
ldeferidgant’ orally agreed to sell the
remainirig-_varietjes of jungle wood timber at the
“rate of I?._s:.250/– per cubit feet?
Whether the defendant proves that the plaintiff
him stating that he is not interested in
and demanded to return the advance money
he agreed to receive the amount only after
selling the timber by him’?
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4) Whether the defendant proves that since the
plaintiff demanded for refund of the advance
amount and there after he has out and stooked the
timber and fire wood after obtaining necessgary
permission from the forest authorities?
5} Whether the suit is not properly
purpose of court fee and jurisdictioii? ” ”
6} Whether this court has tg
suit? _
7] ‘Whether the plaintiff is’.enf,it}e ‘the: reliefs sought
for? _ . %
8) To ‘oradecree?
_ .9. adduced evidence examining himself as
‘ he also exan1i1’1ed Mr.Basha, who is labour contractor
for cutting timber and fire wood standing
suit scherliulze land as P’W.2, Gopala, a watchman who was
l’,_appointe’d by him as watch and ward security for trees cut
andlstored in suit schedule iand was examined as PW.3,
Plrafulla Madhukar, a person who was witness to transaction
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between plaintiff and defendant, which culminated in
execution of Ex.P2, agreement of sale of timberkwas
examined as PW/i and M.R.Ishwarappa. who is
than brother of defendant, who was to
transaction between plaintiff and (iefendant”_was’
as PW.5. In support of his case4plaintiff’produ,c’ed:in ali.
documents marked as Exs.Pl”* P27.” behalf of
defendant. he exaxninecl However, he did
not produce and mark ariv support of his
defence, which by statement.
10}”Tile;’court?-:below”*on apprevciation of the pleadings,
oral it bdocunisntaryu”=..evi_dence available on record
proceeded ta answerA’._issn”e Nos.1, 3 and=6 in favour of
._V’pla..fii|.[‘1.3;é§.ift: enteiin_g__i_nto agreement between plaintiff and
‘d.efendant’ifo.rfl”sale of timber on 18.5.1992, defendant not
being’ ablefto establish that plaintiff opted out of agreement
andfagreedhto receive advance amount paid by him in lieu of
V’ to remove trees and the court below having
‘ iinfisdicuon to try the suit filed by plaintiff. However, issue
it ml\Ios.2, 4., 5 and 7 were held. against plaintiff. in favour of
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defendant, wherein court below held that plaintiff has failed
to establish payment of second advance of Rs.25,000/_–___ and
held that defendant himself has cut and stored
fire wood in suit schedule land and suit filed ~
not properly Valued, consequently, denied the if V’
to issue No.7. It is pertinent to ment,ion;’at..jfiun:ctu_ire”ithati_:
so far as issues that were” held in. favour ‘of’-pylajntiff –. ‘
defendant did not choose to file:”‘any-.yappe’al.accepting the
finding given by court..i:DelGi_AI. gs Hoysrever, plaintiff has
challenged the finding of far as issue
Nos.2, 4, 5
Ii, In éiiotice is duly served on defendant,
he has entered ap1f;ea:’aric&e’_.’cVthrough counsel. This court on
perusal of grounds. urged in the appeal and also reason given
for holding issue Nos.2, 4, 5 and 7 against
the following poi.nts arise for consideration
V . in
is 1)VV’Whether court below was justified in holding that
plaintiff has failed to establish payment of further
advance of Rs.25,000/–?
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2} Whether the court below after holding issue No.3
against defendant was justified in holding issue
No.4 in favour of defendant?
3) Whether the court below was justified .
that court fee paid is not proper
holding aforesaid issue
plaintiff and dismissing suit? T ‘
Heard the counsel for appellantnand On
reappreciation of the pleadings,. oral ldocnigmentary
evidence available on record this conrt_’answer point No. l for
consideration in__affirma.t_ifre-., poivnt’*:Vi.’Nos.2 and 3 in
negatiyrelfor V V V
i.?;;« The fact deficnriant is owner of an extent of 1 1
acres .29 .o:’:’ landhlin Sy.No.134 of Masrur village,
V. _,Keretialiis.,Hoh1i, Elosanagar Taluk is not in dispute. It is also
in “that as on the date when plaintiff and
into agreement, Ex.P2 the said land in
“..,gSy.No.~l(i¢1 was not phoded and the extent of land granted in
,,:l,”favvVo’i1~r of Berrnoji Rao, a tenant of defendant, was not
identified and demarked fixing boundaiy to the said extent.
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Ex.P2 also discloses that as on 18.5.1992 defendant agreed
to sell the standing teak timber and also fire wood in favour
of plaintiff for the price agreed therein. In that behalf
of Rs.1,00,()0O/– was received by him as advancelatl ~
of entering into agreement on 18.5,.1.992. ” ll’
payment of Rs.25,000/a though pltiadeti
plaint and stated in his evidelncei he has notl’isuijgvt,3ntiated
the same by adducing cogent e_\_r_idenc’e_»_vthroughiindlependent
evidence regarding payrnenti advance. The
payment of suchafurther evidenced by
proper pin’tlieabsence of shara to
that refused to accept further
payment of” “plaintiff to defendant towards
additional acivance for ‘purchase of timber.
coming to point No.2 for consideration, the
has-“‘framed two issues i.e., issue Nos.3 and 4,
which are interconnected. The said issues are based on the
gl”dAefence’v.r*aised by defendant in his written statement to the
it ‘effect that though he has entered into agreement with
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plaintiff for sale of teak timber and forest wood on
18.5.1992, subsequently plaintiff opted out of agreemerit and
decided to receive advance amount paid by
further contended that after such request ‘
plaintiff he has cut and stored teak »timberjand \’J_l70Od_V ll
in suit schedule land pursuant to felling permission
by him. So far as this defence’i–s_ concerned, d.efei_ida,nt–‘has v ‘
not adduced any acceptable ex/:id»enceq exceptvtheii defence
raised in his written staternent_a,ri_d~V0’raIV’vei}idence that he has
adduced in support thereof…’i.’he ‘coia_irtl.beio\%v’ on appreciation
of the oral iiocurnenltaiy _..eVVidence”l has come to the
conclusion failed to establish the alleged
request rnadeqqby –tosiirrender his right to purchase
teak timber forrefund amount from defendant. When
. if “theis helduagainst defendant, consequently, court
.beio.vlV’ held issue No.4 which is framed regarding
cutting andistoring of timber in suit schedule land against
V’-.defe11d’an_t;~ for the reason that, under Ex.=P2 and Ex.P2’7
l”iidefent’.arit permitted piaintiff to approach the concerned
authorities for securing necessary permission for felling
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timber and to secure necessaiy permit for transportation of
the same. The said documents namely permission granted
by forest authorities for felling of trees are produced by
plaintiff and marked in his evidence.- Assuniirigr
moment if, said permission is secured by defei’1:da1i1t} *
was no reason for said documents. to be pro-d;u.cé’df_’ it
marked by plaintiff. The court bie.low?_’_’c0VmI’l)let€ll’?
this aspect has blindly accepted the defence by
defendant in his written staternent,__which’is« not stipported
by any evidence. Per con’tra,’–.co{urt” has conveniently
ignored to look into th:g~fact”tha,§ that are
secured eitlie:7._for_.’of _tr_ces or for transportation of
felled timber’ is by to Ex.P2’7, special power
of attorney eicccuted favour by defendant and the said
.°*per1nissions were produced and marked by plaintiff in his
on the part of court below in looking
into4_Vthese:iaspects has resulted in court below giving an
V’-».erroneo,us finding on issue No.4, which is required to be
,,/.4’1’r3V_€r’:3ed and held that it is plaintiff who has secured
necessary permission from competent authority for felling
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trees and thereby he has cut and stored the same in suit
schedule land.
14. New Coming to point No.3 for consideration? it is
seen that prayer of plaintiff is for declaration that pt1rs.i,ia.i1t
to agreement at Ex. P2 he has cut and stored .
forest wood in suit schedule land has ‘figh:t_vvt:o”reIn0ve’
the same and therefore, he has vahied_”tl1e ire’
Section 24(1)) of the Karnatalga
Valuation Act and for the pnrp0se.of cponrtffce the has valued
the said relief at — court fee that
is paid has not sought for
declaration owner of timber which is cut
and storedi«-in suit._sche(iiiied land, the question of vaiuing
thefisarne and ‘Apayingv court fee thereon does not arise.
~’}fh’erefo.re;.pcoiirtpbeiow has failed to appreciate the same in
‘prope’r Vperspejctiive and has erred in holding the said issue
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V ” r 4_ Now coming to the aspect of relief that is required
‘ the granted in this appeal, it is seen that plaintiff having
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entered into an agreement with defendant for purchase of
teak timber in terms of price agreed therein has secured
necessary permission for felling teak timber and secured
necessary permission for transportation of same pur_su:ant”*to
the right given to him under Ex.P2’7, speciaf.
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attorney executed by defendant, »~~’i7tiereiIbHrew,”‘ is if
entitled to remove the same. Howe’xrer,1’_it is seen’ that’
the Dendency of this procetif’-1.,ii*:g% entilfe .titii13ei€,.Vithat–§wasrd’
stored in suit schedule gland wasVVVre1noyed:soldi§by forest
department pursuant to’-orderppassedlpjibgrthis court and the
sale proceeds totthe tu:n’e”of: deposited into
this C.’._:ourt_A –.dep_art1nent a portion of which is
deposited__pursua_ni–:fto of this Court and balance is
lying -in the” court} in terms of memo filed by appellant
. .”‘-herein’:,.,”as “per meimtes agreed in agreement vide Ex.P2,
entitled to a sum of Rs.2,95,451.50. Since
paid a sum of Rs.1,()0,000/– at the time of
enteriiigffinto agreement with defendant on 18.5.1992, what
to defendant is Rs.1,95,451.50. From out of the
K funds which is lying in the Court and as well as put in fixed
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deposit in bank a sum of Rs.1,95,451.50/« shall be released
in favour of defendant on filing of necessary voucher’.
The balance amount from out of the deposit ‘ .
any accrued thereon. shall be released in fa’vm.:i{‘of”plai:ni:i:_ff “~
on filing of necessary voucher by inlltlhlslllbehltalf. ll at
16. Accordingly, appeal by’1:laintlft’~Vts”:.allowed in” V
part. The office is direeted toVAyrelfease”~»t,l1e a1nount_.deposited
in bank to plaintiff aforesaid manner
on filing of necessary volziohelflhy’ tl:1te_rn.for…jpEiyrI1ent.
Sd/,..
Iudge