IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 31ST MARCH 2009 / \0TH CHAITHRA 1931 AS.No. 122 of 2000(E) --------------------- (AGAINST THE DECREE AND JUDGMENT IN O.S.No.349 of 1993 OF SUB COURT, PALAKKAD) APPELLANT(S): -------------- STATE OF KERALA, REP. BY DISTRICT COLLECTOR, PALAKKAD. BY GOVERNMENT PLEADER SRI.R.LAKSHMI NARAYAN RESPONDENT(S): --------------- 1. C.R.DEVARAJA IYER, S/O.LATE RATNA IYER H.NO.1, PLOT NO.31, PRASANTHI NAGAR, PALAKKAD – 11. 2. C.S.DEVARAJA IYER, S/O.LATE SADASIVA IYER, H.NO.14/339, VIVEKANANDA COLONY, KUNNATHURMEDU, PALAKKAD. ADV. SRI.ANTONY DOMINIC SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- A.S.No.122 of 2000 ------------------------------- Dated this the 31st March, 2009 J U D G M E N T Raman, J. The defendant in O.S.No.349 of 1993, on the file of the Subordinate Judge's Court, Palakkad, is the appellant herein. The plaintiffs instituted the suit for recovery of money, based on Ext.A1 agreement between the parties. The plaintiffs are the successors in interest of one Pichu Iyer who had constructed an Irrigation system by name, 'Thenparamadakku' in Chittur Taluk, consisting of Anicut in the Chittur river and irrigation chal branching in the area in the erstwhile Cochin Government and adjoining Malabar area. The Cochin Government took over the management of the said irrigation system as per the agreement entered into between the parties, evidenced by Ext.A1. As per the said conditions of agreement, the Government of Cochin agreed to pay certain amount to the owner as compensation for taking over of the said irrigation system. As per clause 7 of the AS.No.122 of 2000 2 said agreement, it was provided that Cochin Government under payment of moiety of water cess or Neervaram that may be collected on account of water supply from the Pichu Iyer system from the land owners benefited. The successor in interest, who are the defendants, are therefore, bound by Ext.A1 agreement. Since the amount was not paid as agreed to, the plaintiffs instituted O.S.No.15/1975, which was ultimately decreed in their favour. That was for the period prior to the period in question. The present suit is for the subsequent period. Since the earlier suit between the parties ended in a decree, all the contentions that were raised by the defendant having been found against and the liability to pay the said amount cannot be successfully resisted by the defendant, as these issues are covered and operate as res judicata. However, the defendant raised a contention that since they have stopped collecting cess amount from the beneficiaries, they are not liable to pay any compensation. 2. The court below raised mainly four issues. The evidence consists of Exts.A1 to A6 marked on the side of the plaintiffs and Ext.B1 marked on the side of the defendant. AS.No.122 of 2000 3 3. The court below found that the suit was maintainable and the defendant is liable for payment of water cess. It was also found that the suit is not barred by limitation nor for non-joinder of any necessary parties. 4. The main contention that was argued was that in view of the stoppage of collecting cess from the beneficiaries and since the compensation to be paid as per Ext.A1 agreement depended on the amount so collected, no amount is payable by virtue of clause 7. The court below found that clause 5 of Ext.A1 agreement relates to lands in the erstwhile Cochin State whereas clause 7 is with respect to the land outside the Cochin State. It was only recited in clause 7 that the moiety of the water cess or Neervaram that may be collected on account of water supply from the said Pichu Iyer Thambaramadak Irrigation system to the lands situated outside the Cochin State shall be paid to the owner before 30th of Medom of every year. Thus, there was no agreement stipulating that the obligation to pay the cess amount is depended upon the actual collection. It is only an enabling provision prescribing a mode for the Government to recoup the amount. Whether or not AS.No.122 of 2000 4 the Government will collect the amount from the beneficiaries is a different matter, which cannot be a ground to say that for taking over the management of the irrigation system, no amount is payable by way of compensation. The amount claimed in the suit has not been shown to be unreasonable. The court below, after considering all the aspects of the matter and based on the evidence on record, granted an amount of Rs. 91,080/= with 6% interest per annum. No case as such is made out for interference in the judgment under appeal. Hence, the decree is confirmed. The appeal is dismissed. No costs. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj. P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- A.S.No. 122 of 2000 J U D G M E N T Dated: 31st March, 2009. -------------------------------