S RAJU Vs. K USSANNAR

JUDGEMENT

(1.) 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. 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.) 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.