IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 SA.No. 655 of 1995() -------------------- AS.10/1991 of SUB COURT, QUILANDY OS.161/1988 of MUNSIFF COURT, QUILANDY .................... APPELLANT/RESPONDENT/PLAINTIFF ---------------------------------------------------- KALLADA PARAYACHUNDAKKAL NARAYANAN ALIAS BALAN NAIR S/O MADHAVAI AMMA, AGED 50 YEARS, BUSINESS VELOOR AMSOM DESOM, QUILANDY TALUK KOZHIKODE DISTRICT. BY ADV. SRI.P.K.SURESH KUMAR RESPONDENT/APPELLANT/DEFENDANT --------------------------------------------------- KUNNATH MADHAVAN, S/O MULLAN RESIDING IN PUTHUVANDI, GRANITE WORKER VELOOR AMSOM DESOM, QUI TALUK KOZHIKODE DISTRICT. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.7.2009 THE COURT ON 30/07/2009 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- S.A.No. 655 of 1995 ---------------------------------------- Dated this the 30th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 10/1991 on the file of the Sub Court, Koyilandy which arises from the judgment and decree in O.S. No. 161/1988 on the file of the Munsiff's Court, Koyilandy. The suit for money was decreed by the trial court. In the appeal filed by the defendant in the suit, the lower appellate court reversed the decree and judgment. Hence the Second Appeal. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. The facts of the case in brief are as follows: The plaintiff is the owner and in possession of the plaint schedule property. The plaintiff and defendant have entered into an agreement on 10.5.1986(Ext.A1) whereby the defendant is allowed to break granite stones and to remove the granite stones and soil from the plaint schedule property. The value per load of granite is fixed as Rs. 32/- and the value per load of soil is fixed as Rs. 15/-. The agreement was for a period of 3years and it was decided that the accounts between the plaintiff and defendant will be settled monthly. During the period of December 1987 during January and February, 1988 the defendant has taken 120 loads of granite stones and 100 loads of sand from the plaint schedule property. It is alleged by the plaintiff that the value for the said loads has not been paid by the defendant. So the S.A. No. 655 of 1995 -2- plaintiff filed the suit claiming Rs. 5,583/- with interest at the rate of 6%. 3. The defendant in the written statement admitted the execution of Ext.A1 agreement and denied the other averments in the plaint. The defendant contended that the averment that he has taken 120 loads of granite stone and 100 loads of sand till 16.2.1988 is not true and the further statement that the value of the same has not been paid is also not true. He also contended that the plaintiff was not in the habit of issuing receipts for the amounts received. The accounts between the plaintiff and the defendant used to be settled on the weekend and also the account upto 3.2.1988 have been settled between the plaintiff and himself. According to him he has paid Rs.1,500/- as advance at the time of the Ext.A1 agreement and also paid a further sum of Rs.10,000/- on 10.1.1988 in connection with the plaintiff's niece's marriage. It is also contended that there is no breach of contract and the work happened to be stopped for the reason that there was a dispute between the plaintiff and the members of Olayattu Naduvilakandy tarwad with regard to the property covered by Ext.A1 agreement. According to him, the members of the tarwad obstructed the loading of the granite stones and soil and hence the plaintiff is not entitled to realise the amount as claimed in the plaint. 4. The trial court on the basis of evidence found that the defendant has miserably failed to prove the alleged obstruction that have S.A. No. 655 of 1995 -3- been made by the members of the tharwad as contended in the written statement and that the plaintiff has not committed any breach of the contract which disentitles the plaintiff to realise the plaint claim. The trial court also noted that the defendant has also not taken any legal proceedings for the enforcement of the Ext.A1 agreement. The learned Munsiff held that the defendant has miserably failed to establish that Rs.10,000/- was paid to the plaintiff and there is no independent evidence in that regard, but accepted the claim of the defendant that he had paid Rs.1,500/- to the plaintiff. The trial court negatived the claim of the defendant that he has given 12 loads of granite stone to the plaintiff . 5. A decree was passed by the trial court for Rs.5,583/- and allowed the plaintiff to realise Rs. 4083/- i.e the sum after deducting Rs.1500/- from the decree amount, with 6% interest per annum from the date of the decree till realisation. 6. In the first appeal the lower appellate court held that there is no sufficient evidence to show that the defendant has removed 120 loads of granite stone and 100 loads of soil as stated by the plaintiff during the period mentioned in Ext.A1 agreement. It is further held that even if it is assumed that the plaintiff's case is correct and that the defendant has not paid the value of the materials removed for the relevant period, it is not possible to fix the quantum of the amount due to the plaintiff in the absence S.A. No. 655 of 1995 -4- of any evidence to establish the number of loads removed. For the said reasons the lower appellate court reversed the trial court's judgment and decree. 7. In my view the trial court rightly adjudicated the issues. I have examined the reasons stated by the trial court for passing the judgment and decree. The trial court considered the facts evidence and circumstances in the right perspective. The trial court held on the basis of evidence, the execution of Ext.A1 agreement and the non-payment of money as per the said agreement by the defendant. I am also of the view that the plaintiff's claim is tenable in the given circumstances and that the lower appellate court reversed the decree and judgment passed by the trial court on sustainable grounds. In the result, the judgment and decree passed by the lower appellate court in A.S. No. 10/1991 are set aside and the trial court's decree and judgment in O.S No. 161/1988 are restored to file. The second appeal is allowed with costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- S.A. No.655 of 1995 ---------------------------- JUDGMENT 30th July , 2009