S.Raju v. K. Ussannar

IN THE HIGH COURT OF JUDICATURE AT MADRASD A T ED: 03.07.2009 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR, A.S.No.392 of 1997S.Raju... Appellant/DefendantVersusK. Ussannar ... Respondent/PlaintiffAppeal filed under Section 96 of Civil Procedure Codeagainst the Judgment dt.30.01.1997 passed by the learned DistrictJudge, Uthagamandalam in O.S.No.93 of 1990.For Appellant:Mr.S. Jayaraman For Respondent:Mr. R. SubramanianJ U D G M E N TThis Appeal has been preferred against Judgment and decree ofthe learned District Judge, Uthagamandalam dt. 30.01.1997 made inO.S.No.93/1990. The unsuccessful defendant in the suit is theappellant in this appeal.2. The respondent herein/plaintiff filed a suit on the fileof the District Court, Uthagamandalam for the recovery of a sum ofRs.66,000/- , the said amount being the proportionate amount paidby him towards purchase of blue gum trees grown in survey nos.116and 117 in Uthagamandalam Rural village, belonging to the appellantherein/defendant. The following are the plaint averments:-(i) On 02.02.1989, the respondent/plaintiff and the appellantherein/defendant entered into an agreement whereby theappellant/defendant agreed to sell eight blue gum treesstanding in S.No.110/1 and all the trees numbering abouteighty, standing in survey nos 116 and 117 of UthagamandalamRural village for a sum of Rs.81,000/- . On the date ofagreement itself viz., 02.02.1989, appellant/defendant receiveda sum of Rs.25,000/- and the balance amount of Rs.56,000/- waspaid to him by the respondent/plaintiff on 05.02.01989. Theappellant/defendant also undertook to get the permission fromthe forest department for felling the above said treesregarding which the agreement was entered into. In accordancewith the undertaking, the appellant/defendant submitted anapplication for the said purpose to the concerned authorities https://hcservices.ecourts.gov.in/hcservices/ on 07.02.1989. On 28.06.1989, permission was granted forcutting only eight blue gum trees standing in survey no.110 andthe permission sought for in respect of the trees in surveynos. 116 and 117 was rejected on 05.02.1990. The eight bluegum trees regarding which permission was granted were cut andsold for a sum of Rs.15,000/- by the respondent/plaintiff withthe concurrence of the appellant/defendant. As the forestauthorities refused to accord permission for cutting 80 bluegum trees found in survey nos 116 and 117 on the ground thatthe trees belonged to High Ways Department and since theplaintiff had paid the price for those eighty trees alsobelieving the representation made by the appellant/defendantthat those trees also belonged to him, the respondent/plaintiffwas entitled to the refund of the proportionate amount, whichwas calculated by the plaintiff at Rs.66,000/-. A legal noticedemanding payment of the said amount was issued on 29.02.1990.Even after the receipt of the said notice, theappellant/defendant failed to make payment as demanded in thesaid notice . On the other hand, the appellant/defendant choseto issue a reply notice containing false allegations.Therefore the Plaintiff was constrained to file the suit forrecovery of the amount with costs. Based on the above said allegations, the respondent/plaintiffhad prayed for a decree against the appellant/defendant directinghim to pay a sum of Rs.66,000/- .3. The suit was resited by the appellant/defendant by filing awritten statement denying the plaint averments and making thefollowing allegations:-The agreement for the sale of the standing trees insurvey nos. 110/1, 116 and 117 of Uthagamandalam Ruralvillage was finalised and the price of the trees was fixedonly after both the parties inspected the lands and trees andafter the respondent/Plaintiff was satisfied with thedocuments of title of the appellant/defendant. It is notcorrect to state that except eight blue gum trees found inS.No.110/1, the other trees did not belong to theappellant/defendant and that those trees were that of theHigh ways Department. Only the trees standing in the pattaland of the appellant/defendant were agreed to be sold to therespondent/plaintiff and infact, the respondent/plaintiff cutand removed more than 98 trees belonging to theappellant/defendant pursuant to the above said agreement.The appellant/defendant did not undertake to get permissionfrom the forest officials for cutting the trees. On theother hand, the respondent/plaintiff undertook the job ofgetting such permission from the officials and he wanted theappellant/defendant to render his assistance by affixing hissignatures in the application. For that purpose only, on therequest of the respondent/plaintiff, the appellant/defendant https://hcservices.ecourts.gov.in/hcservices/ affixed his signatures in the application seeking permissionfrom the forest officials to cut the trees. Infact, ninetytrees were cut even before obtaining permission and the saleconsideration fixed under the agreement was paid to therespondent/defendant only after the felling of the trees wasover. The respondent/plaintiff earned a huge profit byselling the trees that were cut even before obtainingpermission from the forest officials to a timber merchant inKothagiri for a sum of Rs.1,50,000/-. When theappellant/defendant questioned the respondent/plaintiffregarding the felling of trees without permission, heinformed that he had made all arrangements for gettingpermission. A power of attorney was also executed in favourof the respondent/plaintiff on 29.03.1990 to enable him totransport the trees cut from the above said survey nos. Thevalue of eight blue gum trees that were cut from survey no.110/1 alone was Rs.56,000/- The respondent/plaintiff and thetimber merchant in Kothagiri paid a sum of Rs.5,000/- as finein a criminal case instituted against them for cutting thetrees without permission. The respondent/plaintiff cameforward with the suit in order to make wrongful gain. Theappellant/defendant was not liable to pay any amount to therespondent/plaintiff and the suit itself was liable to bedismissed.Based on the above said grounds of defence made in thewritten statement, the appellant/defendant had prayed for thedismissal of the suit with costs.4.The Trial Court framed as many as four issues which are asfollows:(i) Whether the plaintiff cut ninety trees and sold it for asum of Rs.1,50,000/- to a timber merchant in Kothagiri beforegetting permission for cutting the trees?(ii) Whether the plaintiff has cut and removed the trees fromsurvey nos. 116 and 117 of Udagamandalam rural village?(iii) Whether all the trees sold by the defendant to theplaintiff belong to the defendant or else they belong to Highwaysdepartment?(iv)To what other relief the plaintiff is entitled ?5. Two witnesses were examined as PW.1 and P.W.2 and ninedocuments 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 wasmarked on the side of the defendant. The reports filed by theForest Range Officer and the Advocate Commissioner have beenproduced as court documents and marked as Ex.C1 and Ex.C2respectively. https://hcservices.ecourts.gov.in/hcservices/

6. After completing recording of evidence, the learned trialJudge heard the arguments advanced on either side, considered theevidence in the light of such arguments and upon suchconsideration, came to the conclusion that the plaint plea wassustainable, whereas the plea of the defendant was not probable.Based on the said conclusion, the court below held that theplaintfiff/respondent was entitled to recover a sum of Rs.66,000/-from the appellant/defendant. The court below also held that therespondent/plaintiff was entitled to an interest @ 6% per annum onthe decreetal amount from the date of decree till realization. Ithas also directed the appellant/defendant to pay the litigationcost of the respondent/plaintiff.7. The said judgment and decree of the trial Court dated30.01.1997 are challenged in this appeal on various grounds set outin the memorandum of Appeal. 8. The points that arise for consideration in this appeal areas follows:(i)Whether the respondent/plaintiff has cut andremoved all the trees, the subject matter of agreementbetween parties before ever obtaining permission from theForest Department for cutting the same and sold them to atimber merchant at Kothagiri for a sum of Rs.1,50,000/-?(ii) Whether the respondent/plaintiff was not ableto cut and sell the trees grown in survey nos 116 and 117of Uthagamandalam Rural Village as permission for thesame was refused by the Forest Department?(iii) Whether the respondent/plaintiff is entitledto recover a sum of Rs.66,000/- being the proportionateprice paid by him for the blue gum trees grown in SurveyNos.116 and 117?9. The submissions made by Mr. S.Jayaraman, learned counselfor the appellant and by Mr. R.Subramanian, learned counsel for therespondent were heard. The plaint, written Statement, judgmentof the trial court and the entire evidence, both oral anddocumentary, were perused.10. It is not in dispute that the appellant/defendant and therespondent/plaintiff entered into an agreement on 02.02.1989 bywhich the appellant/defendant agreed to sell eight standing bluegum trees grown in survey no. 110/1 and more than eighty standingtrees in Survey nos. 116 and 117 in Uthagamandalam rural village tothe respondent/plaintiff for a sum of Rs.81,000/- It is also not indispute that trees in the said hill area, though grown in pattalands belonging to the private parties, could not be cut andremoved without getting permission from the Forest Department. Not https://hcservices.ecourts.gov.in/hcservices/ only for cutting trees but also for transporting the same suchpermission is needed. The suit agreement dated 02.02.1989 has beenprepared rather in the form of receipt containing the conditions ofthe agreement whereby it has been agreed between parties that sevenblue gum trees in survey no. 110/1 and all blue gum trees in theboundaries of survey nos. 116 and 117 were agreed to be sold to therespondent/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 dateof agreement itself. It has also been stated in Ex.A1 that thebalance amount of Rs.56,000/- should be paid on the date ofcommencement of cutting work and before starting the cutting work.11. There is no dispute regarding the genuineness of Ex.A1. Italso contains an endorsement made on 05.02.1989 to the effect thatthe balance amount of Rs.56,000/- was received by theappellant/defendant on the said date. The appellant/defendant hasalso categorically admitted the receipt of entire consideration ofRs.81,000/- in two instalments on 02.02.1989 and 05.02.1989. It isalso not in dispute that, pursuant to the said agreement, therespondent/plaintiff was able to cut and remove eight blue gumtrees that were found in survey no. 110/1 belonging to theappellant/defendant. However, the parties have come forward withconflicting pleas as to when the above said eight blue gum treeswere cut and removed from survey No. 110/1. It is the case of therespondent/plaintiff that the eight blue gum trees from survey no.110/1, were cut and removed only after getting permission from theDistrict Forest Officer, whereas the appellant/defendant has satedthat even before getting such permission ,the respondent/plaintiffcut and removed not only the above said eight blue gum trees fromsurvey no. 110/1, but also more than eighty such trees from surveynos.116 and 117. 12.In this regard the plaintiff has deposed as P.W.1reaffirming and reiterating the stand taken by him in the plaint.Besides P.W.1, a timber merchant by name Mubarak was also examinedas P.W.2. He corroborates the evidence of P.W.1 that the eightblue gum trees found in survey no. 110/1 were cut and removed onlyafter getting permission of the forest department. It is the cleartestimony of P.W.2 that he bought the trees from the plaintiff on01.07.1989. In addition to the said parole evidence, the plaintiffalso relied on Ex. A2 to A5 . Ex.A2 is an order of the DistrictForest Officer, Uthagamandalam dated 19.04.1989. By the saidorder,the permission sought for felling trees found in surveynos.110, 116 and 117 was rejected holding that those trees werenot found to be dangerous and they did not pose any danger to lifeor property. Subsequently on 13.06.1989, the respondent /plaintiffseems to have made a further application to the District ForestOfficer seeking permission to fell the 88 blue gum trees found inthe patta lands comprised in survey nos. 110/1 , 116 and 117 inUthagamandalam rural village. Ex.A3 is the copy of the saidapplication. Based on the said application, permission was grantedto cut eight blue gum trees found in survey no. 110/1 of the above https://hcservices.ecourts.gov.in/hcservices/ said village . The said order was passed on 28.06.1989 . Ex.A4 isthe copy of the said order. The permission sought for to fell theremaining trees was rejected by an order dated 05.02.1990 statingthat the applicant had not produced 'no objection certificate'obtained from the Highways Department as those trees were in theborder of the patta land and Highways land. A copy of the same hasbeen marked as Ex.P5.From a perusal of the above saiddocuments, it is obvious that permission for felling eight treesfound in S.No 110/1 alone was granted on 29.06.1989 . Thereforethe evidence of P.W.1 and P.W.2 that the said trees were cut andremoved by P.W.1 only after 01.07.1989 is quite probable. As it isadmitted by both the parties that trees found in survey no.110/1were cut and sold by the respondent/plaintiff, the plaintiff hasdeducted a sum of Rs.15,000/- as the price of those trees from thetotal amount of consideration of Rs.81,000/- paid by him to theappellant/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 bythe parties regarding the other trees that were also the subjectmatter of agreement dated 02.02.1989. According to theplaintiff/respondent he could not cut and realize the value of thetrees found in survey nos 116 and 117 as no permission could beobtained from the Forest Department for felling the same. Theclaim of the plaintiff is based on his contention that the owner ofthe land viz. appellant/defendant, undertook to get necessarypermission from the forest department and since permission couldnot be obtained, the appellant/defendant was obliged to returnproportionate consideration. The further case of therespondent/plaintiff is that except eight trees cut and sold by theplaintiff, other trees, numbering about eighty, were on the bordersof survey nos.116 and 117 with Highways land and permission forcutting those trees was refused by the forest department as "noobjection certificate" from the Highways department was notobtained and produced. According to the plaint, since those werefound on the boundary line between patta land of theappellant/defendant and the Highways land, the District ForestOfficer wanted a "no objection certificate" from the Highwaysdepartment to grant permission for felling the trees. On the otherhand the appellant/defendant maintains that those trees were morethan ninety and they were well within his patta land. It is hisfurther contention that even before getting permission from theforest department,the Plaintiff cut and removed all those trees,sold them and earned a huge profit out of it. According to theappellant/defendant, plaintiff sold the trees for a sum ofRs.1,50,000/- to a timber merchant at Kothagiri and thereby earneda huge profit. However he is not in a position to give particularsof the said timber merchant or any body who knew the timbermerchant. The said timber merchant has not been examined on theside of the appellant/defendant. https://hcservices.ecourts.gov.in/hcservices/

14. Furthermore the permission for cutting eight blue gumtrees from survey nos. 110/1 was granted under Ex.A4 only on28.06.1989. It is probable that eight trees could have been cutonly after the above said date (28.06.1989). In the rejection orderpassed on 19.04.1989, a copy of which has been marked as Ex.A2, ithas been stated that the Ranger, Udhagai South inspected the treeson 09.03.1989 and found them to be not dangerous. Therefore, treesin survey no.110/1 were intact on 09.03.1989 and it is quiteimprobable that the trees could have been cut before the said dateor on 05.02.2009 as contended by the appellant/defendant. Merelyrelying on the recital found in the Ex.A1 to the effect that theamount should be paid on the date on which cutting would bestarted, the appellant/ defendant has taken a stand that theentire amount was paid only after cutting the trees. The saidcontention of the appellant/defendant is quite improbable. 15. The further application seeking permission was rejected bythe District Forest Officer on 05.02.1990. Therefore till05.02.1990 the trees in survey nos. 116,117 could not have been cutand removed . On the other hand the appellant/defendant wouldcontend that the trees were cut and removed even before passing ofthe said order of rejection, for which except the interestedtestimony D.W.1, there is no other evidence. Of course, it is truethat in 1996 an Advocate Commissioner was appointed by the courtbelow who inspected the properties along with the Forest RangeOfficer and submitted a report. Ex.C1 is the report of the ForestRange officer, an expert in the field. Ex.C2 is the Advocatecommissioner's report. Advocate commissioner had simply stated thathe executed the warrant of commission with the help of the ForestRange Officer and was returning the warrant along with the reportof the Forest Range Officer. From the report of the Forest RangeOfficer marked as Ex.C1, it is obvious that the stumps of the treesfound in the land comprised in survey no.110/1 reveal the fact thatthe trees could have been cut before five years from the date ofinspection. The advocate Commissioner has been examined as D.W.2.An attempt was made by D.W.2 to show that the trees found insurvey nos. 116 and 117 also could have been cut between four andfive years prior to the date of inspection. But the same is againstthe report of the Forest Range Officer which alone was filed by theadvocate commissioner in the court. Further more, the suit wasfiled in the year 1990. The property was inspected by D.W.1 andthe Forest Range Officer in the month of July 1996. If four tofive years prior to the date of report is taken, it will take us toJuly 1991 to July 1992. As the suit had been filed in 1990, it isquite improbable that the appellant/defendant would have permittedthe respondent/plaintiff to cut and remove the trees during thependency of the suit. If at all it had been done during thependency of the suit, the appellant/ defendant would haveimmediately come to the court for necessary orders. The fact thatthe appellant/defendant waited for six years and thereafter filedthe application coupled with the further fact that of the Forest https://hcservices.ecourts.gov.in/hcservices/ Range officer has observed that the trees in survey nos. 116 and117 could have been felled within one year prior to their visit on27.07.1996, will make the case of the respondent/plaintiff thatthe appellant/defendant cut and removed those trees during thependency of the suit and thereafter belatedly came forward with theapplication for appointment of commissioner in a desperate attemptto disprove the claim of the respondent/plaintiff, more probable. 16. The further contention of the appellant/defendant that theplaintiff and the timber merchant were prosecuted by the forestofficials for cutting and removing the trees without gettingnecessary permission and the same resulted in the imposition of afine of Rs.5,000/- on them, has not been substantiated by properevidence. A prosecution which resulted in such conviction and thealleged payment of fine could have been very well proved bydocuments. A copy of the judgment of the Criminal Court or acertified extract of the register of such case could have beenobtained and produced. The appellant/defendant has not chosen todo so. The said contention of the appellant/defendant remains notproved by him. Even if it is assumed for arguments sake that theplaintiff undertook the job of getting necessary permission fromforest department to cut the trees since such permission wasrefused, in equity the defendant is liable to refund theproportionate amount as the contract itself has been frustratedbecause of the order of rejection passed by the District ForestOfficer. All the aspects pointed out supra for coming to theconclusion that the case of respondent/plaintiff is probablewhereas the defence plea of appellant/defendant is improbable havebeen properly dealt with by the trial court. The trial court hascome to a correct conclusion that the respondent/plaintiff was ableto cut and sell eight blue gum trees in survey no 110/1 alone andhe could not cut and remove the blue gum trees from survey nos 116and 117 which were also the subject matter of agreement. The trialcourt also came to the right conclusion that therespondent/plaintiff was entitled to seek refund of theproportionate amount for the trees, numbering about eighty,standing in survey nos. 116 and 117. Clear evidence has also beenadduced to show that the value of eight blue gum trees cut by theappellant/planitff from survey number 110/1 was Rs.15,000/- only .P.W.2 has also given clear evidence to the effect that hepurchased those trees from the plaintiff and theappellant/defendant was the person who mediated for the same .Receipt issued by P.W.2 for the same has been produced and markedas Ex.A9.The price quoted for the eight trees is quite reasonablewhen compared with the price fixed in Ex.A1 for nearly eighty eighttrees. Therefore, the plaintiff is totally justified in claiming asum of Rs.66,000/- after deducting a sum of Rs.15,000/- as theprice of the trees cut and removed from survey no.110/1 from thetotal consideration of Rs.81,000/-. 17. The Court below has rightly held that the plaintiff isentitled to a decree for recovery of sum of Rs.66,000/- from the https://hcservices.ecourts.gov.in/hcservices/ appellant/defendant. Since the plaintiff had not made any claim forinterest on the suit amount, the trial court has not chosen toaward interest even subsequent to the filing of the suit. Howeverrelying on section 34 C.P.C., the trial court has awarded aninterest at 6% p.a. on the decreetal amount from the date of decreetill realization and also cost. The trial court cannot be foundfault with even to the least extent for the same. The wellconsidered judgment of the trial Court and its decree deserve to beconfirmed. There is no merit in this appeal and the appealdeserves to be dismissed without costs. It is also brought to thenotice of this court that the entire decree amount had beendeposited by the appellant/defendant and the plaintiff/respondentwas permitted to draw half of the amount without security andbalance on furnishing security.17. In the result, the appeal is dismissed and the decree andjudgment of trial Court shall stand confirmed. There shall be noorder as to costs in this appeal. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrararr To1.The District Judge, Udhagamandalam2.The Section Officer, V.R.Section, High Court, Madras-104.Judgment made inA.S.No.392 of 1997GV {CO}TP/23.7.2009.