HON’BLE SRI JUSTICE V.SURI APPA RAO Second Appeal No.98 of 1999 Date: 24-02-2011 Between S.Venkat Reddy (Died) Per L.Rs 2 & 3 … Appellants/Respondents/ Plaintiffs and Jangampet Chandra Reddy and another … Respondents/Appellants/ Defendants HON’BLE SRI JUSTICE V.SURI APPA RAO Second Appeal No.98 of 1999 Judgment: This second appeal is filed under Section 100 of CPC against the judgment and decree dated 12-12-1996 passed in A.S.No.12 of 1988 on the file of the learned Subordinate Judge, Vikarabad, Ranga Reddy district. 2. The relevant facts leading to this second appeal are as follows: The 1st appellant is the deceased original plaintiff and the respondents are the defendants. Therefore, they are arrayed for the sake of convenience as the plaintiff and the defendants. On 05-12- 1980 the 2nd defendant approached the plaintiff for purchasing 25 neem trees which are in the lands of the plaintiff at Poddatur village of Chevella Taluk for consideration of Rs.2,650/-. The 1st defendant undertook and agreed to pay the said sale consideration amount of trees to the plaintiff on behalf of the 2nd defendant and executed a chit letter in favour of the plaintiff evidencing transaction and agreeing to pay the amount within a month from the date of chit and the 2nd defendant cut 25 neem trees from the root and took away. The plaintiff waited for one month and requested to pay the chit amount but the 1st defendant avoided to pay the said amount in spite of repeated demands. Thereafter, the plaintiff got issued a legal notice dated 14-4- 1985. Both the defendants refused to receive the legal notice. Hence, the plaintiff filed the suit for recovery of Rs.2,650/- with interest at 18% per annum against both the defendants 1 and 2 jointly and severally. 3. The 1st defendant filed a written statement denying the undertaking to pay the sale consideration, however, he admitted that a letter was jointly written that in the event of the trees being allowed to be cut and being allowed to be taken away by the 2nd defendant, the 2nd defendant does not pay the amount, he executed a letter undertaking to pay the amount but there is no legal sanctity as it is not enforceable under law. The 2nd defendant also did not cut and carry the neem trees. Therefore, he need not pay any amount. The suit is liable to be dismissed. 4. The 2nd defendant filed a separate written statement stating that the plaintiff agreed to sell the neem trees for a consideration of Rs.2,650/- and the 1st defendant gave chit for the amount payable by the 2nd defendant undertaking to pay the sale amount of trees to the plaintiff within one month. He denied the allegations made in the plaint except cutting of trees. In fact, the 2nd defendant submitted that he has further executed an agreement in favour of the 1st defendant hypothecating the property as collateral security for the sale consideration of Rs.2,650/- towards the value of the trees and the 1st defendant executed a chit in favour of the plaintiff. The 2nd defendant is not liable to pay the amount. 5. Basing on the above pleadings, the trial Court framed the following issues: (1) Whether the plaintiff is entitled to recovery of suit amount from the defendants ? (2) Whether the chit executed by the 1st defendant in favour of plaintiff is valid and of recoverable ? (3) Whether defendant No.2 cut away the 25 Neem Trees of the plaintiff ? (4) To what relief ? 6. On behalf of the plaintiffs, P.Ws.1 and 2 are examined and marked Exs.A-1 to A-5. D.Ws.1 and 2 are examined on behalf of the defendants and no documents are marked. 7. Considering the oral and documentary adduced by both the parties, the learned District Munsiff, Chevella decreed the suit O.S.No.2 of 1982 filed by the plaintiff relying on Ex.A-4 chit executed by the 1st defendant on the only ground that in Ex.A-4 it is not mentioned that if the 2nd defendant is not allowed to take the wood he is not liable to pay the amount and that it was not mentioned that the payment will be made after the wood is carried by the 2nd defendant. 8. In the evidence the 1st defendant as D.W.2 has stated that the brothers of the plaintiff did not allow the 2nd defendant to cut the trees claiming that they are also having share in the trees. Therefore, the 2nd defendant took him to the place and requested the elders to settle the dispute. But both the parties did not agree for any settlement. Therefore, the 2nd defendant could not cut the trees and did not carry the wood as per the agreement. 9. The learned Subordinate Judge, Vikarabad, Ranga Reddy district allowed the appeal suit filed by the 1st defendant on the ground that the plaintiff is not entitled to recover the amount under Ex.A-4 chit as the defendants were prevented from cutting the trees. Therefore, the defendants are not liable to pay for the value of the trees under Ex.A-4. 10. Aggrieved by the judgment and decree passed by the learned Subordinate Judge, Vikarabad, Ranga Reddy district the legal representatives of the deceased original plaintiff filed this second appeal. 11. The learned counsel for the appellants submitted that the 2nd defendant in his written statement admitted cutting of the trees and contended that on behalf of the 2nd defendant, the 1st defendant executed Ex.A-4 chit undertaking to pay the amount on behalf of the 2nd defendant. But, the 2nd defendant was not examined in the suit. The 1st defendant has clearly stated in his evidence that the brothers of the deceased original plaintiff, who are having share in the neem trees, did not allow the defendants to cut the trees. Therefore, they could not cut the trees. Hence, they are not liable to pay the amount. 12. In the evidence, P.W.1 has admitted that they did not obtain any permission for cutting the trees. The transaction was entered into between his father and the 2nd defendant with regard to the cutting of the trees. He further admitted in the cross-examination that the agnates of the plaintiff have cut away and carried the trees standing in the land of the plaintiffs. In that connection, a complaint at the request of the 2nd defendant was lodged before the Police. The complaint was lodged in respect of cutting of the trees in the land of the plaintiffs, which is the subject matter of Ex.A-4 chit. He further clearly admitted in the evidence that the standing trees covered by Ex.A-4 were cut down by the dayadies of the plaintiff were carried away and enjoyed by them. The 1st defendant also clearly stated in his evidence that the relatives of the plaintiff did not allow him and the 2nd defendant to cut the trees stating that they are also having share in the trees. Thereafter, the relatives of the plaintiff cut away the trees. Thus, both the Courts below observed that the defendants were prevented from cutting the trees by the relatives of the original plaintiff who entered into an agreement. The trial Court decreed the suit on the ground that the 1st defendant executed Ex.A-4 chit undertaking to pay the amount within one month and that in Ex.A-4 it was not mentioned that the defendants are not liable to pay the amount if the trees are not allowed to cut and that the defendants did not issue any notice immediately after one month that they were not allowed to cut the trees. Therefore, the defendants are liable to pay the amount though they could not cut the neem trees. The said finding was negatived by the lower appellate Court and the lower appellate has rightly come to the conclusion that the defendants are not liable to pay any amount since they were not allowed to cut the trees as per Ex.A-4 chit executed by the 1st defendant. Admittedly, Ex.A-4 chit was executed by the 1st defendant on behalf of the 2nd defendant undertaking to pay the amount if the 2nd defendant failed to pay the amount for the value of 25 neem trees within one month. The evidence on record clearly indicates that the defendants were not allowed to cut the trees within one month or even after that also. Therefore, the plaintiffs are not entitled to the suit amount based on Ex.A-4 chit executed by the 1st defendant for that value of the trees. The lower appellate Court is justified in setting aside the judgment and decree passed by the trial Court i.e., the District Munsiff, Chevella. 13. For the foregoing reasons, it is held that the appellants/plaintiffs are not entitled for the suit amount. 14. The second appeal is, therefore, dismissed confirming the judgment and decree passed by the lower appellate Court. _____________________ V.SURI APPA RAO, J. 24th February, 2011. Ak HON’BLE SRI JUSTICE V.SURI APPA RAO Second Appeal No.98 of 1999 24th February, 2011.