NAIR SERVICE SOCIETY CHANGANACHERRY Vs. R M PALAT

JUDGEMENT

(1.) THE second defendant is the appellant. The appeal arises out of a suit filed by the respondent for specific performance of the contract contained in the compromise petition Ext. A-1 or Ext. B-2 dated 19-11-1964 and for recovery of rs. 1,500 as damages for the removal of some trees from the property by the appellant.

(2.) THE facts relevant to this appeal are stated below. Ext. B-1 dated 4-12-1943 is a permanent lease executed by the respondent and others in favour of the appellant for 1000 acres of land. The respondent filed O. S. No. 398 of 1952 on the fde of the Munsiff's Court, Walluvanad, against the appellant for an order of injunction to restrain the appellant from entering into the property scheduled in that case on the ground that the appellant violated the terms of Ext. B-1 and was trying to trespass into the properties which lie adjacent to those included in Ext. B1. The parties to the suit fifed Ext. A-1 or B-2 compromise petition in pursuance of which the suit was dismissed. Ext. A-2 is the plan appended to Ext. A-1 demarcating the property included in Ext. B-1. In the compromise petition it was agreed that the trees in the property delineated in Ext. A-2 should be valued by Sri. S. K. Nair and Sri. A. Raghavan Nair, the advocates who appeared for the parties in O. S. No. 398 of 1952, or by their nominee within two months of Ext. A-1 and the price should be deposited by the appellant within 15 days thereafter. If there was any difference of opinion between the advocates in the valuation they should refer the matter to an umpire who should fix the price. The appellant was hound to deposit the price fixed by the umpire for payment to the respondent. The advocates who appeared for both the parties in O. S. No. 398 of 1952 appointed Sri Karunakaran Nair to assess the value of the trees after making a local inspection. He submitted a report to the advocates assessing the value of the trees at more than Rs. 70,000. Shri S. K. Nair, by his letter Ext. A-4 dated 3-51954, addressed to the parties and Sri A. Raghavan Nair, requested that he might be relieved of the responsibility to value the trees under the terms of Ext. A-1. Subsequent to Ext. A-4, the value of the trees in the property was not fixed by Sri. A. Raghavan Nair and Sri S. K. Nair. The respondent therefore filed the present suit for specific performance of the contract in Ext. A-1 by compelling the appellant to pay the value of the trees in the properly marked out in Ext. A-2 to be determined by the Court and also for the recovery of the value of the trees cut and removed by the appellant from the property as damages.

(3.) A commission was issued by the trial Court to value the trees in the property and also to fix the value of the trees cut and removed by the appellant. Ext. C-1 is the report of the Commissioner fixing the value of the standing trees and value of the trees removed by the appellant. The value of the trees was fixed at Rs. 20,991. 71 while the damage was assessed at Rs. 574.