IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 AS.No. 438 of 1997(E) -------------------- AGAINST THE DECREE AND JUDGMENT DATED 12.2.1996 IN OS.123/1993 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/PLAINTIFF: ------------------------- SASI, S/O.GOPALAN, PARAPPAN THOLEL, PALAPRASSERY KARA, CHENGAMANADU VILLAGE, ALUVA TALUK. BY ADV. MR.T.H.ABDUL AZEEZ MR.P.K.MEETHIYAN KUNJU RESPONDENT/DEFENDANT: ----------------------------- RAMAKRISHNAN, S/O.VELU, MAKOLLY VEETTIL, KURUMASSERY KARA, PARAKKADAVU VILLAGE, ALUVA TALUK. ADV. MR.P.RAMAKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 438 of 1997(E) ORDER ON C.M.P.NO.3536/1997 IN A.S.NO.438/1997. DISMISSED. 2.3.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------------- A.S.No.438 of 1997 - E --------------------------------- Dated this the 2nd day of March, 2010 J U D G M E N T The plaintiff in O.S.No.123 of 1997 on the file of the Sub Court, North Paravoor, is the appellant. The suit is filed for realisation of Rs.75,850/-. Court below held that the plaintiff is not entitled to the reliefs claimed in the suit and dismissed the suit with costs. The counter claim of the defendant seeking to realise Rs.25,000/- is also disallowed. Aggrieved by the dismissal of the suit, the plaintiff has preferred the appeal. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff was allowed to extract soil from the property belonging to the defendant having an extent of 89 cents. The extraction of soil agreed is for a period of five years. The consideration for the extraction is fixed by the parties at Rs.66,750/-. Ext.A5 is the agreement dated 14.8.1992. The execution of Ext.A5 agreement is not disputed. Admittedly, the defendant received Rs.50,000/-. The balance amount of Rs.16,750/- was payable on or before 30.1.1993. A.S.No.438 of 1997 - E 2 3. The plaintiff’s case is that the neighbouring owners including the Kurumassery Padasekaram Committee objected the extraction of soil by the plaintiff from the defendant’s land. Therefore the plaintiff was unable to carryout the extraction work. Since the work contracted was unable to be completed due to obstruction from the neighbouring people of the Padasekaram Committee, the dispute arose during January, 1993. On the basis of the effort made by three mediators the dispute between the parties have been settled. Ext.A6 is the agreement containing the terms of settlement executed in the presence of the three mediators. In Ext.A6 the defendant agreed to repay Rs.50,000/- received from the plaintiff. The defendant agreed to repay Rs.10,000/- on or before 30.2.1993 and the balance amount of Rs.40,000/- on or before 15.11.1993. Thus the dispute between the parties is settled as per Ext.A6 decision taken at the instance of three mediators. It is the case of the plaintiff that for the purpose of doing the work in the defendant’s property he had formed a road through the adjoining property. The plaintiff claimed Rs.5,000/-, being the expenses incurred for A.S.No.438 of 1997 - E 3 the formation of the road and Rs.15,000/- towards advance amount paid to the labourers. 4. The plaintiff deposed in terms of the plaint. He had also examined 5 witnesses as PWs 2 to 6. PW2 is one of the witnesses to Ext.A6 agreement. PW3 was examined to prove that arrangements were made for commencing the work and for that purpose labourers were engaged. PW4 is the Secretary of one of the organizations which lodged complaint against the plaintiff. PW5 is a neighbour, who had lodged complaint to the Padasekaram Committee stating that the extraction of soil will cause damages to their crops in the adjoining land. 5. The written statement is silent about Ext.A6 agreement. When examined as DW1, the defendant admitted execution of Ext.A6 agreement. At the same time he deposed before the court that Ext.A6 agreement was executed at the police station and he was forced to execute the agreement out of compulsion from the police. The defendant did not adduce any evidence in support of his claim. No witnesses were examined to prove the said contention. The written statement does not A.S.No.438 of 1997 - E 4 contain any pleadings to the effect that Ext.A6 agreement was executed in the police station. At the same time, Ext.A6 shows that the same was written and executed in the house of one of the mediators by name, Poulose. 6. The trial court disbelieved the evidence adduced by the plaintiff and relied on the interested oral testimony of DW1 in order to non-suit the plaintiff. The court below simply accepted the contention of the defendant that Ext.A6 agreement was executed on the compulsion of the police. There is no basis for entering such a finding. The court below also stated several other reasons which are not germane for consideration. The plaintiff is not entitled to a decree for the simple reason that the parties settled the matter in the presence of mediators and he agreed to repay the amount received from the plaintiff. The parties also agreed to contest the suit filed by a third person as O.S.No.1 of 1993 before the Munsiff Court, Aluva. The court below without any basis wrongly held that the said suit is a collusive suit between the present plaintiff and the plaintiff in O.S.No.1 of 1993. I do not find any reason to enter into such A.S.No.438 of 1997 - E 5 findings without any proof. Ext.A6 agreement shows that the parties executed the same on 12.1.1993 and both parties agreed to contest the suit in order to vacate the order of injunction passed against both of them. 7. In the light of the aforesaid facts and circumstances, there is no need to discuss further the reasoning entered by the learned Munsiff. The defendant is liable to return the amount as agreed in Ext.A6. The evidence adduced by the plaintiff shows that he had spent Rs.5,000/- for the formation of the road and also spent amounts for arranging the labour force. The facts and circumstances discussed above leading to the execution of Ext.A6 shows that the plaintiff has carried out some arrangement for commencement of the soil extraction work. The oral evidence adduced is not sufficient to prove the actual amount spent by the plaintiff. At the same time, the evidence shows that the plaintiff had incurred expenses in connection with the work. Though the plaintiff claimed Rs.20,000/- under the said two heads, I am not inclined to grant the amount claimed in the suit. On a moderate estimate the plaintiff is entitled to realise Rs.10,000/-under the A.S.No.438 of 1997 - E 6 said two heads. Thus, the plaintiff is entitled to realize a total amount of Rs.60,000/-from the defendant and his assets. In the result, the appeal is allowed. The decree and judgment passed by the court below are set aside. The plaintiff is allowed to realise Rs.60,000/- with interest at the rate of 9% from the date of suit till realization. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/-