IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 SA.NO. 312 OF 1995() -------------------------------- AS.3/1991 OF PRL.SUB COURT,KOTTAYAM OS.74/1986 OF MUNSIFF COURT, ETTUMANOOR .................... APPELLANT(S) - RESPONDENT -PLAINTIFF: ----------------------------------------------------------- OUSEPH JOSEPH, PUNNAKKATTIL, KALLARA KARA AND VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S) - APPELLANT - DEFENDANT: --------------------------------------------------------------- ELSAMMA THOMAS, KOTTUKAPPALLIL, LALAM KARA AND VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2009 ALONG WITH SA NO. 342 OF 1995 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.312 of 1995 AND S.A. No.342 of 1995 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of February, 2009 J U D G M E N T ---------------------- These Second Appeals arose from the common judgment and decree in A.S. Nos.3 and 4 of 1991 of the Court of learned Prl. Sub Judge, Kottayam reversing the common judgment and decree in O.S. Nos.74 and 75 of 1986 of the Munsiff's Court, Ettumanoor. 2. According to the appellant, he was appointed as Pumping contractor for Vellikkanni Mudakkali Padashekaram as per Exts.A1 to A4, proceedings dated 11.10.1983, 20.3.1984, 22.10.1984 and 10.7.1985 respectively to bale out water from the said Padashekaram during the period referred to therein fixing the pumping nerma at the rate of Rs.100/-, Rs.204/-, Rs.114/- and Rs.308/- in respect of the respective periods of cultivation. Appellant carried out the de-watering work as per the agreements. Respondents own 10 acres and 9.10 acres of paddy lands respectively in the said Padashekaram. But the respondents did not pay the entire dues. Hence the appellant laid the suits for recovery of the balance amount due. Respondents contended that the extent of the paddy fileds belonged to them excluding the bunds constructed on its three sides are not as claimed S.A.Nos.321 and 342 of 1995 -: 2 :- by the appellant. They denied that the appellant carried out de- watering of the said paddy fields. They were not able to cultivate their paddy fields since the paddy fields were inundated with water. They denied that they are liable to pay any amount and at any rate, to the extent claimed by the appellant. In the trial court, appellant examined P.W.1, Puncha Special Officer and proved Exts.A1 to A4, copies of proceedings appointing him as the pumping contractor for the respective periods. Ext.A7 is the copy of the proceedings of the Puncha Special Officer dated 26.4.1987 and Ext.A8 is the photocopy of the certificate issued by the Village Officer Onamthuruthu regarding extent of the paddy fields owned by the respondents. Appellant gave evidence as P.W.2 and claimed that he had baled out water from the paddy fields of the respondents as well. P.W.3 is the Convenor of the Padashekaram who supported the appellant. Respondents proved Exts.B1 to B5. Exhibits B1 and B2 are the receipts dated 30.9.1990 and 30.5.1990 which are admitted by the appellant when examined as P.W.2. Exhibit B3 is the copy of the order passed by the Revenue Divisional Officer under the provisions of the Land Utilisation Order. As per Ext.B3, the right to cultivate the land referred to therein was auctioned. Exhibit B4 is the copy of letter from the respondent in S.A. S.A.Nos.321 and 342 of 1995 -: 3 :- No.342 of 1995 addressed to the Sub Divisional Officer KSEB, Ettumanoor. Exhibit B5 is the notice dated 30.9.1989 issued from the Revenue Divisional Officer, Kottayam to the respondent in S.A. No.312 of 1995 stating that right to cultivate 19.10 acres was auctioned on 20.7.1989 for Rs.272,00/-. Respondents examined D.Ws.1 to 3 who stated about the paddy fields of the respondents lying bounded by bunds on three sides and public road on the northern side. Learned Munsiff after consideration of the evidence found that the appellant is entitled to realise the amount as prayed for and granted decree. In appeal at the instance of the respondents, learned Prl. Sub Judge found that the suit is impliedly barred by Sections 3 and 4 of the Kerala Irrigation Works (Execution by Joint Labour) Act, 1967 (for short, “the Act”) and that since the paddy fields of the respondents are lying separate from the rest, that does not come within the definition of the 'padashekaram' as per the said Act and that at any rate, there is no evidence to show that water from the paddy fields of the respondents were baled out by the appellant. Judgment and decree of the learned Munsiff were reversed and the suits were dismissed. Hence these Second Appeals. 3. The following substantial questions of law are raised for a S.A.Nos.321 and 342 of 1995 -: 4 :- decision: “A. Is not the lower appellate court in serious error in holding that the suit for money filed by the appellant is not maintainable in view of Sections 3 and 4 of the Act. B. Is not the lower appellate court in serious error in holding that there is no privity of contract between the appellant and the respondent especially in view of the fact that there is an agreement entered into between the convenor of the Padashekaram representing all the cultivators on the one hand and the contractor on the other hand. C. Is not the finding of the lower appellate court that the paddy filed of the respondent is lying separated from the other parts of the Padashekaram. The appellant did not pump out the water from the respondent's paddy field is directly against the evidence adduced in this case and hence vitiated on the ground that the said finding is finding against the evidence in this case”. 4. It is contended by the learned counsel for the appellant that findings entered by the first appellate court are erroneous in that S.A.Nos.321 and 342 of 1995 -: 5 :- there is no bar either express or implied for the institution of the suit under the Act. It is also contended that in the light of Ext.A7 which is an order passed by the Puncha Special Officer under the provisions of the Act and in the light of the evidence given by the Puncha Special Officer, the first appellate court was not justified in finding that the appellant had not baled out water from the paddy fields of the respondents. 5. There is no dispute that the appellant was appointed as the pumping contractor to bale out water from the Vellikkanni Mudakkali Padashekaram. Section 2(b) of the Act defines 'padashekaram' as meaning collection of paddy fields contiguously situated whether owned by one person or two or more persons. Section 2(d) of the Act defines 'proprietor' as meaning owner of a paddy filed in a padashekaram and includes the cultivator or person in actual possession of such field. It is admitted by the respondents that they own paddy fields in the padashekaram though according to them, lesser in extent than what the appellant alleged. P.W.2 admitted that on three sides of the paddy fields there are bunds on which coconut trees are planted but he denied the width of the bunds as suggested by the respondents. It has come out in evidence that on the east, west S.A.Nos.321 and 342 of 1995 -: 6 :- and south of the paddy fields of the respondents there are bunds and on the north it is public road. But on the public road there is a culvert on the side of the paddy fields with water chal on either side. Though there are bunds on the three sides of the paddy fields, watering and de-watering is possible on account of the existence of the culvert and water chal on either side and due to percolation. Hence it is idle for the respondents to contend that because of the bunds on three sides of the paddy fields which is otherwise lying contiguous with the rest of the paddy fields, they are not liable to pay pumping charges as per the provisions of the Act. Exhibits A1 to A4 which are not disputed take in the paddy fields belonging to the respondents as well. It is made more clear in Ext.A7, proceedings of the Puncha Special Officer where it is stated that from the paddy fields of the respondents also, appellant had baled out water and for that purpose since there were bunds on three sides appellant had to incur additional expenses. The Puncha Special Officer as per Ext.P7 directed the respondents to pay such charges as well. P.W.3, Convenor of the padashekaram has also given evidence supporting the appellant that the latter had baled out water from the paddy fields of the respondents as well. The finding of the trial court in this regard has been reversed by the first appellate S.A.Nos.321 and 342 of 1995 -: 7 :- court on a wrong appreciation of evidence and incorrect interpretation of Sec.2(b) of the Act. 6. Now coming to the next substantial question of law raised for a decision, question is whether the finding of the first appellate court that the suits are impliedly barred under the provisions of the Act is correct? The first appellate court made reference to Secs.3 and 4 of the Act. Section 3 of the Act deals with the procedure on failure to contribute cost or labour for work to be done by joint labour and also deals with work connected with irrigation or drainage for purposes of agriculture in the padashekaram. Section 4 of the Act which is precisely applicable to the facts of this case deals with de-watering of the padashekaram and says that whenever one or more of the proprietors of a padashekaram applies or apply to the District Collector, the Puncha Special Officer or the Agricultural Officer of the local authority authorised by the Government in this behalf, to arrange for de-watering that padashekaram for the purpose of paddy cultivation, it shall be lawful for the District Collector or the Special Officer to arrange de-watering of such padashekaram and to recover the cost thereof from all the proprietors. Learned counsel for the appellant contended that Sec.4 of the Act is only an enabling provision S.A.Nos.321 and 342 of 1995 -: 8 :- whereby the authorities mentioned therein can recover the costs from the proprietors. He also contended that there must be ouster of the jurisdiction of the civil court which cannot be readily inferred. 7. Position of law regarding ouster of jurisdiction of the civil court is settled that when a right available at common law is also provided in a Special Statute, in the absence of the specific provision jurisdiction of the civil court is not ouster. On the other hand, when a right not available at common law is created for the first time in a Special Statute and the machinery to work out such right is also provided in such Statue, then the jurisdiction of the civil court is impliedly barred. In this case it was not because of the Act that the pumping contractor who had worked for the respondents is entitled to get the cost of it. Respondents have no case that the appellant had worked gratuitously for them. Respondents have also no case that the charges payable by them were collected by any of the authorities referred to in Sec.4 of the Act. If that be so, Sec.70 of the Indian Contract Act would enable the appellant to realise the value of the services rendered by him. In that situation, I am unable to understand Sec.4 of the Act as providing an implied bar on the jurisdiction of the civil court. Therefore that finding of the first appellate court cannot be S.A.Nos.321 and 342 of 1995 -: 9 :- sustained and is liable to be set aside. 8. First appellate court also found that (see Paragraph 13 of the judgment) that since the paddy fields of the respondents are lying separate from the rest of the padashekaram they are not liable to pay pumping charges which I found from the evidence is not sustainable. It follows that the appellant is entitled to recover the pumping charges from the respondents. Judgment and decree of the first appellate court are liable to be set aside and that of the trial court restored. Resultantly these appeals succeed. The judgment and decree passed by the first appellate court in both the cases are set aside and the judgment and decree passed by the trial court in both the cases are restored. Parties are directed to suffer their respective costs in these appeals. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.312 OF 1995 AND S.A. NO.342 OF 1995 =================== J U D G M E N T 25TH FEBRUARY, 2009