IN THE HIGH COURT OF JUDICATURE AT MADRAS D A T ED: 03.07.2009 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR, J A.S.No.392 of 1997 S.Raju ... Appellant Versus K. Ussannar ... Respondent
Appeal filed under Section 96 of Civil Procedure Code against the Judgment dt.30.01.1997 passed by the learned District Judge, Uthagamandalam in O.S.No.93 of 1990.
For Appellant : Mr.S. Jayaraman
For Respondent : Mr. R. Subramanian
J U D G M E N T
This Appeal has been preferred against Judgment and decree of the learned District Judge, Uthagamandalam dt. 30.01.1997 made in O.S.No.93/1990. The unsuccessful defendant in the suit is the appellant in this appeal.
2. The respondent herein/plaintiff filed a suit on the file of the District Court, Uthagamandalam for the recovery of a sum of Rs.66,000/- , the said amount being the proportionate amount paid by him towards purchase of blue gum trees grown in survey nos.116 and 117 in Uthagamandalam Rural village, belonging to the appellant herein/defendant. The following are the plaint averments:-
(i) On 02.02.1989, the respondent/plaintiff and the appellant herein/defendant entered into an agreement whereby the appellant/defendant agreed to sell eight blue gum trees standing in S.No.110/1 and all the trees numbering about eighty, standing in survey nos 116 and 117 of Uthagamandalam Rural village for a sum of Rs.81,000/- . On the date of agreement itself viz., 02.02.1989, appellant/defendant received a sum of Rs.25,000/- and the balance amount of Rs.56,000/- was paid to him by the respondent/plaintiff on 05.02.01989. The appellant/defendant also undertook to get the permission from the forest department for felling the above said trees regarding which the agreement was entered into. In accordance with the undertaking, the appellant/defendant submitted an application for the said purpose to the concerned authorities on 07.02.1989. On 28.06.1989, permission was granted for cutting only eight blue gum trees standing in survey no.110 and the permission sought for in respect of the trees in survey nos. 116 and 117 was rejected on 05.02.1990. The eight blue gum trees regarding which permission was granted were cut and sold for a sum of Rs.15,000/- by the respondent/plaintiff with the concurrence of the appellant/defendant. As the forest authorities refused to accord permission for cutting 80 blue gum trees found in survey nos 116 and 117 on the ground that the trees belonged to High Ways Department and since the plaintiff had paid the price for those eighty trees also believing the representation made by the appellant/defendant that those trees also belonged to him, the respondent/plaintiff was entitled to the refund of the proportionate amount, which was calculated by the plaintiff at Rs.66,000/-. A legal notice demanding payment of the said amount was issued on 29.02.1990. Even after the receipt of the said notice, the appellant/defendant failed to make payment as demanded in the said notice . On the other hand, the appellant/defendant chose to issue a reply notice containing false allegations. Therefore the Plaintiff was constrained to file the suit for recovery of the amount with costs.
Based on the above said allegations, the respondent/plaintiff had prayed for a decree against the appellant/defendant directing him to pay a sum of Rs.66,000/- .
3. The suit was resited by the appellant/defendant by filing a written statement denying the plaint averments and making the following allegations:-
The agreement for the sale of the standing trees in survey nos. 110/1, 116 and 117 of Uthagamandalam Rural village was finalised and the price of the trees was fixed only after both the parties inspected the lands and trees and after the respondent/Plaintiff was satisfied with the documents of title of the appellant/defendant. It is not correct to state that except eight blue gum trees found in S.No.110/1, the other trees did not belong to the appellant/defendant and that those trees were that of the High ways Department. Only the trees standing in the patta land of the appellant/defendant were agreed to be sold to the respondent/plaintiff and infact, the respondent/plaintiff cut and removed more than 98 trees belonging to the appellant/defendant pursuant to the above said agreement. The appellant/defendant did not undertake to get permission from the forest officials for cutting the trees. On the other hand, the respondent/plaintiff undertook the job of getting such permission from the officials and he wanted the appellant/defendant to render his assistance by affixing his signatures in the application. For that purpose only, on the request of the respondent/plaintiff, the appellant/defendant affixed his signatures in the application seeking permission from the forest officials to cut the trees. Infact, ninety trees were cut even before obtaining permission and the sale consideration fixed under the agreement was paid to the respondent/defendant only after the felling of the trees was over. The respondent/plaintiff earned a huge profit by selling the trees that were cut even before obtaining permission from the forest officials to a timber merchant in Kothagiri for a sum of Rs.1,50,000/-. When the appellant/defendant questioned the respondent/plaintiff regarding the felling of trees without permission, he informed that he had made all arrangements for getting permission. A power of attorney was also executed in favour of the respondent/plaintiff on 29.03.1990 to enable him to transport the trees cut from the above said survey nos. The value of eight blue gum trees that were cut from survey no. 110/1 alone was Rs.56,000/- The respondent/plaintiff and the timber merchant in Kothagiri paid a sum of Rs.5,000/- as fine in a criminal case instituted against them for cutting the trees without permission. The respondent/plaintiff came forward with the suit in order to make wrongful gain. The appellant/defendant was not liable to pay any amount to the respondent/plaintiff and the suit itself was liable to be dismissed.
Based on the above said grounds of defence made in the written statement, the appellant/defendant had prayed for the dismissal of the suit with costs.
4.The Trial Court framed as many as four issues which are as follows:
(i) Whether the plaintiff cut ninety trees and sold it for a sum of Rs.1,50,000/- to a timber merchant in Kothagiri before getting permission for cutting the trees?
(ii) Whether the plaintiff has cut and removed the trees from survey nos. 116 and 117 of Udagamandalam rural village?
(iii) Whether all the trees sold by the defendant to the plaintiff belong to the defendant or else they belong to Highways department?
(iv)To what other relief the plaintiff is entitled ?
5. Two witnesses were examined as PW.1 and P.W.2 and nine documents were marked as Ex.A1 to A9 on the side of the plaintiff. Two witnesses were examined as D.W.1 and D.W.2 and no document was marked on the side of the defendant. The reports filed by the Forest Range Officer and the Advocate Commissioner have been produced as court documents and marked as Ex.C1 and Ex.C2 respectively.
6. After completing recording of evidence, the learned trial Judge heard the arguments advanced on either side, considered the evidence in the light of such arguments and upon such consideration, came to the conclusion that the plaint plea was sustainable, whereas the plea of the defendant was not probable. Based on the said conclusion, the court below held that the plaintfiff/respondent was entitled to recover a sum of Rs.66,000/- from the appellant/defendant. The court below also held that the respondent/plaintiff was entitled to an interest @ 6% per annum on the decreetal amount from the date of decree till realization. It has also directed the appellant/defendant to pay the litigation cost of the respondent/plaintiff.
7. The said judgment and decree of the trial Court dated 30.01.1997 are challenged in this appeal on various grounds set out in the memorandum of Appeal.
8. The points that arise for consideration in this appeal are as follows:
(i)Whether the respondent/plaintiff has cut and removed all the trees, the subject matter of agreement between parties before ever obtaining permission from the Forest Department for cutting the same and sold them to a timber merchant at Kothagiri for a sum of Rs.1,50,000/-?
(ii) Whether the respondent/plaintiff was not able to cut and sell the trees grown in survey nos 116 and 117 of Uthagamandalam Rural Village as permission for the same was refused by the Forest Department?
(iii) Whether the respondent/plaintiff is entitled to recover a sum of Rs.66,000/- being the proportionate price paid by him for the blue gum trees grown in Survey Nos.116 and 117?
9. The submissions made by Mr. S.Jayaraman, learned counsel for the appellant and by Mr. R.Subramanian, learned counsel for the respondent were heard. The plaint, written Statement, judgment of the trial court and the entire evidence, both oral and documentary, were perused.
10. It is not in dispute that the appellant/defendant and the respondent/plaintiff entered into an agreement on 02.02.1989 by which the appellant/defendant agreed to sell eight standing blue gum trees grown in survey no. 110/1 and more than eighty standing trees in Survey nos. 116 and 117 in Uthagamandalam rural village to the respondent/plaintiff for a sum of Rs.81,000/- It is also not in dispute that trees in the said hill area, though grown in patta lands belonging to the private parties, could not be cut and removed without getting permission from the Forest Department. Not only for cutting trees but also for transporting the same such permission is needed. The suit agreement dated 02.02.1989 has been prepared rather in the form of receipt containing the conditions of the agreement whereby it has been agreed between parties that seven blue gum trees in survey no. 110/1 and all blue gum trees in the boundaries of survey nos. 116 and 117 were agreed to be sold to the respondent/plaintiff for a sum of Rs.81,000/-. A sum of Rs.25,000/- as advance and part of the sale consideration was paid on the date of agreement itself. It has also been stated in Ex.A1 that the balance amount of Rs.56,000/- should be paid on the date of commencement of cutting work and before starting the cutting work.
11. There is no dispute regarding the genuineness of Ex.A1. It also contains an endorsement made on 05.02.1989 to the effect that the balance amount of Rs.56,000/- was received by the appellant/defendant on the said date. The appellant/defendant has also categorically admitted the receipt of entire consideration of Rs.81,000/- in two instalments on 02.02.1989 and 05.02.1989. It is also not in dispute that, pursuant to the said agreement, the respondent/plaintiff was able to cut and remove eight blue gum trees that were found in survey no. 110/1 belonging to the appellant/defendant. However, the parties have come forward with conflicting pleas as to when the above said eight blue gum trees were cut and removed from survey No. 110/1. It is the case of the respondent/plaintiff that the eight blue gum trees from survey no. 110/1, were cut and removed only after getting permission from the District Forest Officer, whereas the appellant/defendant has sated that even before getting such permission ,the respondent/plaintiff cut and removed not only the above said eight blue gum trees from survey no. 110/1, but also more than eighty such trees from survey nos.116 and 117.
12.In this regard the plaintiff has deposed as P.W.1 reaffirming and reiterating the stand taken by him in the plaint. Besides P.W.1, a timber merchant by name Mubarak was also examined as P.W. 2. He corroborates the evidence of P.W.1 that the eight blue gum trees found in survey no. 110/1 were cut and removed only after getting permission of the forest department. It is the clear testimony of P.W.2 that he bought the trees from the plaintiff on 01.07.1989. In addition to the said parole evidence, the plaintiff also relied on Ex. A2 to A5 . Ex.A2 is an order of the District Forest Officer, Uthagamandalam dated 19.04.1989. By the said order,the permission sought for felling trees found in survey nos.110, 116 and 117 was rejected holding that those trees were not found to be dangerous and they did not pose any danger to life or property. Subsequently on 13.06.1989, the respondent /plaintiff seems to have made a further application to the District Forest Officer seeking permission to fell the 88 blue gum trees found in the patta lands comprised in survey nos. 110/1 , 116 and 117 in Uthagamandalam rural village. Ex.A3 is the copy of the said application. Based on the said application, permission was granted to cut eight blue gum trees found in survey no. 110/1 of the above said village . The said order was passed on 28.06.1989 . Ex.A4 is the copy of the said order. The permission sought for to fell the remaining trees was rejected by an order dated 05.02.1990 stating that the applicant had not produced ‘no objection certificate’ obtained from the Highways Department as those trees were in the border of the patta land and Highways land. A copy of the same has been marked as Ex.P5. From a perusal of the above said documents, it is obvious that permission for felling eight trees found in S.No 110/1 alone was granted on 29.06.1989 . Therefore the evidence of P.W.1 and P.W.2 that the said trees were cut and removed by P.W.1 only after 01.07.1989 is quite probable. As it is admitted by both the parties that trees found in survey no.110/1 were cut and sold by the respondent/plaintiff, the plaintiff has deducted a sum of Rs.15,000/- as the price of those trees from the total amount of consideration of Rs.81,000/- paid by him to the appellant/defendant and claimed refund of only the balance.
13. The date of cutting of eight trees from survey no. 110/1, assumes importance in the light of the rival contentions made by the parties regarding the other trees that were also the subject matter of agreement dated 02.02.1989. According to the plaintiff/respondent he could not cut and realize the value of the trees found in survey nos 116 and 117 as no permission could be obtained from the Forest Department for felling the same. The claim of the plaintiff is based on his contention that the owner of the land viz. appellant/defendant, undertook to get necessary permission from the forest department and since permission could not be obtained, the appellant/defendant was obliged to return proportionate consideration. The further case of the respondent/plaintiff is that except eight trees cut and sold by the plaintiff, other trees, numbering about eighty, were on the borders of survey nos.116 and 117 with Highways land and permission for cutting those trees was refused by the forest department as “no objection certificate” from the Highways department was not obtained and produced. According to the plaint, since those were found on the boundary line between patta land of the appellant/defendant and the Highways land, the District Forest Officer wanted a “no objection certificate” from the Highways department to grant permission for felling the trees. On the other hand the appellant/defendant maintains that those trees were more than ninety and they were well within his patta land. It is his further contention that even before getting permission from the forest department,the Plaintiff cut and removed all those trees, sold them and earned a huge profit out of it. According to the appellant/defendant, plaintiff sold the trees for a sum of Rs.1,50,000/- to a timber merchant at Kothagiri and thereby earned a huge profit. However he is not in a position to give particulars of the said timber merchant or any body who knew the timber merchant. The said timber merchant has not been examined on the side of the appellant/defendant.
13. Furthermore the permission for cutting eight blue gum trees from survey nos. 110/1 was granted under Ex.A4 only on 28.06.1989. It is probable that eight trees could have been cut only after the above said date (28.06.1989). In the rejection order passed on 19.04.1989, a copy of which has been marked as Ex.A2, it has been stated that the Ranger, Udhagai South inspected the trees on 09.03.1989 and found them to be not dangerous. Therefore, trees in survey no.110/1 were intact on 09.03.1989 and it is quite improbable that the trees could have been cut before the said date or on 05.02.2009 as contended by the appellant/defendant. Merely relying on the recital found in the Ex.A1 to the effect that the amount should be paid on the date on which cutting would be started, the appellant/ defendant has taken a stand that the entire amount was paid only after cutting the trees. The said contention of the appellant/defendant is quite improbable.
14. The further application seeking permission was rejected by the District Forest Officer on 05.02.1990. Therefore till 05.02.1990 the trees in survey nos. 116,117 could not have been cut and removed . On the other hand the appellant/defendant would contend that the trees were cut and removed even before passing of the said order of rejection, for which except the interested testimony D.W.1, there is no other evidence. Of course, it is true that in 1996 an Advocate Commissioner was appointed by the court below who inspected the properties along with the Forest Range Officer and submitted a report. Ex.C1 is the report of the Forest Range officer, an expert in the field. Ex.C2 is the Advocate commissioner’s report. Advocate commissioner had simply stated that he executed the warrant of commission with the help of the Forest Range Officer and was returning the warrant along with the report of the Forest Range Officer. From the report of the Forest Range Officer marked as Ex.C1, it is obvious that the stumps of the trees found in the land comprised in survey no.110/1 reveal the fact that the trees could have been cut before five years from the date of inspection. The advocate Commissioner has been examined as D.W.2. An attempt was made by D.W.2 to show that the trees found in survey nos. 116 and 117 also could have been cut between four and five years prior to the date of inspection. But the same is against the report of the Forest Range Officer which alone was filed by the advocate commissioner in the court. Further more, the suit was filed in the year 1990. The property was inspected by D.W.1 and the Forest Range Officer in the month of July 1996. If four to five years prior to the date of report is taken, it will take us to July 1991 to July 1992. As the suit had been filed in 1990, it is quite improbable that the appellant/defendant would have permitted the respondent/plaintiff to cut and remove the trees during the pendency of the suit. If at all it had been done during the pendency of the suit, the appellant/ defendant would have immediately come to the court for necessary orders. The fact that the appellant/defendant waited for six years and thereafter filed the application coupled with the further fact that of the Forest Range officer has observed that the trees in survey nos. 116 and 117 could have been felled within one year prior to their visit on 27.07.1996, will make the case of the respondent/plaintiff that the appellant/defendant cut and removed those trees during the pendency of the suit and thereafter belatedly came forward with the application for appointment of commissioner in a desperate attempt to disprove the claim of the respondent/plaintiff, more probable.
15. The further contention of the appellant/defendant that the plaintiff and the timber merchant were prosecuted by the forest officials for cutting and removing the trees without getting necessary permission and the same resulted in the imposition of a fine of Rs.5,000/- on them, has not been substantiated by proper evidence. A prosecution which resulted in such conviction and the alleged payment of fine could have been very well proved by documents. A copy of the judgment of the Criminal Court or a certified extract of the register of such case could have been obtained and produced. The appellant/defendant has not chosen to do so. The said contention of the appellant/defendant remains not proved by him. Even if it is assumed for arguments sake that the plaintiff undertook the job of getting necessary permission from forest department to cut the trees since such permission was refused, in equity the defendant is liable to refund the proportionate amount as the contract itself has been frustrated because of the order of rejection passed by the District Forest Officer. All the aspects pointed out supra for coming to the conclusion that the case of respondent/plaintiff is probable whereas the defence plea of appellant/defendant is improbable have been properly dealt with by the trial court. The trial court has come to a correct conclusion that the respondent/plaintiff was able to cut and sell eight blue gum trees in survey no 110/1 alone and he could not cut and remove the blue gum trees from survey nos 116 and 117 which were also the subject matter of agreement. The trial court also came to the right conclusion that the respondent/plaintiff was entitled to seek refund of the proportionate amount for the trees, numbering about eighty, standing in survey nos. 116 and 117. Clear evidence has also been adduced to show that the value of eight blue gum trees cut by the appellant/planitff from survey number 110/1 was Rs.15,000/- only .P.W.2 has also given clear evidence to the effect that he purchased those trees from the plaintiff and the appellant/defendant was the person who mediated for the same . Receipt issued by P.W.2 for the same has been produced and marked as Ex.A9.The price quoted for the eight trees is quite reasonable when compared with the price fixed in Ex.A1 for nearly eighty eight trees. Therefore, the plaintiff is totally justified in claiming a sum of Rs.66,000/- after deducting a sum of Rs.15,000/- as the price of the trees cut and removed from survey no.110/1 from the total consideration of Rs.81,000/-.
16. The Court below has rightly held that the plaintiff is entitled to a decree for recovery of sum of Rs.66,000/- from the appellant/defendant. Since the plaintiff had not made any claim for interest on the suit amount, the trial court has not chosen to award interest even subsequent to the filing of the suit. However relying on section 34 C.P.C., the trial court has awarded an interest at 6% p.a. on the decreetal amount from the date of decree till realization and also cost. The trial court cannot be found fault with even to the least extent for the same. The well considered judgment of the trial Court and its decree deserve to be confirmed. There is no merit in this appeal and the appeal deserves to be dismissed without costs. It is also brought to the notice of this court that the entire decree amount had been deposited by the appellant/defendant and the plaintiff/respondent was permitted to draw half of the amount without security and balance on furnishing security.
17. In the result, the appeal is dismissed and the decree and judgment of trial Court shall stand confirmed. There shall be no order as to costs in this appeal.
arr
To
The District Judge,
Udhagamandalam