Vijayakumar vs Saleem
2024 Latest Caselaw 5060 Ker

Kerala High Court

Vijayakumar vs Saleem on 15 February, 2024

Author: Sathish Ninan

Bench: Sathish Ninan

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
             THE HONOURABLE MR. JUSTICE SATHISH NINAN
 THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                        RFA NO. 675 OF 2008
    AGAINST THE JUDGMENT AND DECREE DATED 31.05.2008 IN
  O.S.NO.381 OF 2005 OF PRINCIPAL SUB COURT, IRINJALAKUDA
APPELLANTS/DEFENDANTS:

    1    VIJAYAKUMAR
         AGED 43 YEARS, S/O.KALAKANATTU KRISHNAN NAIR,
         MURINGAL DESOM, VELLIKULANGARA VILLAGE,
         MUKUNDAPURAM.
    2    ESTHAPANOSE
         AGED 40 YEARS, S/O.KANAMPUZHA PATHROSE,
         VELLIKULANGARA VILLAGE, MURINGAL DESOM,
         MUKUNDAPURAM.
RESPONDENT/PLAINTIFF:

         SALEEM
         AGED 32 YEARS, S/O.KAITHAKKARA PUTHENVEETTIL
         SUBAIR, VELLIKULANGARA VILLAGE, PUTHUKULANGARA
         DESOM, MUKUNDAPURAM.
         BY ADV SRI.T.N.MANOJ


THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
15.02.2024,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                       SATHISH NINAN, J.
             = = = = = = = = = = = = = = = = = =
                    R.F.A.No.675 of 2008
             = = = = = = = = = = = = = = = = = =
          Dated this the 15th day of February, 2024

                             JUDGMENT

The decree in a suit for money is under challenge

by the defendants.

2. The plaint schedule item Nos.1 and 2 were in the

possession of the plaintiff under two agreements for

sale dated 20.12.2004 and 16.02.2005. The plaintiff

entered into Ext.B1 agreement dated 17.03.2005 with the

defendants whereunder the defendants were permitted to

cut and remove the trees standing in the plaint schedule

properties for a total amount of Rs.4,30,000/-. On the

date of Ext.B1 agreement, an amount of Rs.50,000/- was

paid. Out of the remaining amounts, a further amount of

Rs.2,00,000/- was payable on or before 01.08.2005. The

balance amount was to be paid before the contract is

performed in full. The period fixed for completion was

30.03.2007.

3. According to the plaintiff, the defendants did

not pay the amount of Rs.2,00,000/- payable on

01.08.2005. But they had been extracting latex from the

trees. It is accordingly that the suit is filed for

realisation of Rs.2,00,000/- payable on 01.08.2005 or in

the alternative for Rs.2,50,000/- as damages. There is a

further prayer for prohibitory injunction not to cut and

remove the trees from the properties.

4. The defendants contended that Ext.B1 agreement

is vitiated by misrepresentation that the plaintiff is

the owner of the property. They denied that they had

extracted latex from the trees. There is no clause in

Ext.B1 agreement whereunder the plaintiff is agreed for

extraction of latex and hence, no amounts can be claimed

under the said head, it was contended. The plaintiff had

violated Ext.B1 agreement by transferring the plaint

item No.1 property to a stranger - one Latheef. No trees

were cut and removed from the property, therefore no

amount is payable to the plaintiff. Upon these

contentions, it was urged that the suit is liable to be

dismissed. They also raised a counter claim for return

of the amount of Rs.50,000/- paid on the date of Ext.B1

agreement.

5. The trial court held that the plaintiff has

sustained a loss of Rs.72,528/-. Deducting the amount of

Rs.50,000/- paid on the date of Ext.B1 agreement, a

decree was granted for realisation of Rs.22,528/- with

interest.

6. I have heard the learned counsel on either side.

7. The points that arise for determination are;

i) Is the finding of the trial court that Ext.B1 agreement is not vitiated by misrepresentation, correct on facts?

ii) Does the absence of a clause in Ext.B1 agreement, authorising the defendants to extract latex from the trees on the property, disentitle the plaintiff for damages under the said head?

iii) Has the plaintiff committed breach of Ext.B1 agreement by the conveyance of plaint schedule item No.1 property in

favour of the stranger?

iv) Does the judgment and decree of the trial court warrant any interference?

8. Though the defendants would contend that the

plaintiff had misrepresented that he is the owner of the

properties, thus causing Ext.B1 agreement to be entered

into, a reading of Ext.B1 reveals that, it is

specifically stated therein that the right of the

plaintiff is under two agreements for sale. The

plaintiff had never claimed title over the properties.

Therefore, the said contention was rightly repelled by

the trial court.

9. The defendants denied the contention that the

latex was extracted from the trees standing on the

property. PW2 is the witness, who had seen the

defendants tapping the rubber trees and removing the

latex therefrom in an autorickshaw. DW1 has deposed that

the defendants are conversant with rubber tapping. He

has also admitted that he owns an autorickshaw. Exts.C1

and C2 are the Commissioner's reports. The reports

suggest extraction of latex from the trees. The

Commissioner's reports were prepared with the help of an

expert, PW5. The expert opined that the tapping must

have been during the period from March, 2005 to August,

2005, i.e., during the currency of Ext.B1 and during the

relevant period. He has opined that the tapping was done

on daily basis. The expert, who was examined as PW5,

though thoroughly cross examined, could not be

discredited. The trial court chose to accept and rely on

his evidence. No circumstance would be brought out

before this court to discredit his evidence. The

defendants having been in possession of the property

during the period, it could only be concluded that they

had done the rubber tapping. The trial court was right

in having held so.

10. Regarding the income from the latex, the

expert-PW5 has, in the report noticed the price of

rubber in the market based on a monthly journal

published by the Rubber Board. While PW5 is examined,

there is no challenge with regard to the assessment of

price as made by him. Based on his report, the court has

fixed the average price and also expenses, including

labour charges. It is taking into consideration of the

above aspects that the court has fixed the income after

deducting expenses at, Rs.72,528/-. The said finding

warrants no interference.

11. Now, coming to the liability of the defendants

to pay the value of the income obtained by tapping of

the rubber trees, while it is true that Ext.B1 agreement

does not authorise the defendants to extract latex from

the trees, it has already been found that, after having

gone into the possession of the property under Ext.B1

agreement the defendants have extracted the latex from

the trees. The value of such latex, after deducting the

income, has been found at Rs.72,528/-. The defendants

having come into possession of Ext.B1 agreement and

under the plaintiff, the plaintiff is entitled to the

income received by the defendants from the property. The

transfer of item number one by the plaintiff to a

stranger is of no consequence since there is no case

that the purchaser obstructed the performance of Ext.B1

agreement. Hence the defendants cannot be absolved from

the liability.

12. There is a counter claim by the defendants for

return of Rs.50,000/- paid by the defendants to the

plaintiff at the time of Ext.B1 agreement. As noticed

above, the plaintiff is entitled to recover an amount of

Rs.72,528/- from the defendants. After deducting an

amount of Rs.50,000/- from Rs.72,528/-, the plaintiff is

entitled to a decree for the balance amount of

Rs.22,528/-. The trial court is right in having granted

a decree for the said amount.

13. The evidence on record has been properly

appreciated by the trial court. The findings are based

on the evidence and warrants no interference.

Resultantly, the appeal fails and is dismissed. No

cost.

Sd/-

SATHISH NINAN, JUDGE

yd