IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 AS.No. 679 of 1998(D) --------------------- OS.85/1987 of SUB COURT,THODUPUZHA .................... APPELLANT(S): IN AS:PLAINTIFF IN SUIT: -------------------------------------------------------------- M.L.GEORGE, S/O.LUKA, RESIDING AT MALIACKAL HOUSE, MUTHALAKODAM KARA, THODUPUZHA VILLAGE. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): IN AS:DEFENDANTS IN SUIT: ----------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, IDUKKI. 2. THE DIVISIONAL FOREST OFFICER, KOTTAYAM. 3. THE FOREST RANGE OFFICER, FOREST RANGE OFFICE, KUMILY. R1 TO R3 BY SPL.GOVERNMENT PLEADER(FORESTS)SRI.M.P.PRAKASH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/10/2010 ALONG WITH RP NO. 893 OF 2004 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.5792/1998 IN A.S.NO.679/1998 DISMISSED 13/10/2010 SD/- M.N.KRISHNAN,JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = A.S. NO. 679 OF 1998 & R.P.893 OF 2004 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 13TH DAY OF OCTOBER, 2010 J U D G M E N T The appeal is preferred against the revised judgment and decree of the Subordinate Judge, Thodupuzha, in O.S. 85 of 1987. The review petition is filed against the judgment of this Court in A.S. (Indigent) 75 of 1994. 2. First I will deal with the review petition. The review is filed against the judgment whereby this Court had dismissed the appeal filed by the plaintiff against the disallowance of damages in relation to the articles purchased by him which was involved in OR 92/79 and small items of articles involved in O.R. 148/79 and 149/79. There is a case for the plaintiff that he has bid in auction with respect to the right of trees which are the subject matter of the above mentioned Occurrent Reports. According to the plaintiff, since the supervision of the Government officials were necessary for carrying out the work from the forest and as the Government Officials deliberately evaded their responsibility, he was unable to do the work within the stipulated time and therefore, it has resulted in loss of money, which he had quantified at Rs. 12,500/-. This Court, while considering the A.S. 679/98 & RP 893/2004 2 appeal, held that though the plaintiffs had sent notice to the Department, he had not raised any objection with respect to the non co-operation of the Government officials in order to do the work with respect to those materials. Therefore, the Court found that in spite of extension of time granted for doing it, the plaintiff has failed and therefore, he has to curse himself for the loss sustained. So the appeal filed by the plaintiff in that regard was dismissed. It is to review that judgment, the present review petition is filed. 3. It has to be stated that the connected appeal was allowed and it was remanded and thereafter, a judgment has been rendered by the trial court and it has also come up in appeal, which is the subject matter in A.S. 679 of 1998. So, much water has flown thereafter. Whatever it may be, the court below and this Court concurrently found the absence of materials regarding the complaint of non co-operation of Government officials in doing the work. There was no error apparent on the face of the record, which call for any interference. Therefore, I find that the review petition is without merit and is liable to be dismissed. I do so. 4. Now coming to the appeal A.S. 679 of 1998, in the first round of litigation, the trial court found that with respect to the wooden materials which had been taken in auction in OR 148 and 149/1979 pass had been issued as No. 22 and when the wooden materials were stocked in the yard of A.S. 679/98 & RP 893/2004 3 Varkey Mariamma, the forest squad had come and seized 14 logs of timber wood and at that time, they seized pass No. 22 issued and thereby prevented the plaintiff from selling the property for want of title, which can only be proved by the help of a pass. So, it is stated that the value of the materials which could not be sold was assessed as Rs. 36,000/- and a decree was granted by the trial court. In appeal, the learned Judge of this Court held that it suffers from two serious infirmities. This Court pointed out that there is a contention for the defendants in the written statement that there were only those 14 logs of wood in the premises when it was seized and therefore, there is no evidence to show that the plaintiff was deprived of selling the other articles. This Court also held that the value of the materials are not properly furnished and the documents produced could not be proved by itself and therefore, on that account also, it interfered with the decision of the trial court. After remand, the learned trial Judge held these two points against the plaintiff and came to the conclusion that out of the 14 logs of wood seized, 13 were returned, one was not returned and therefore, as the price of that one log, Rs. 1,000/- was awarded as damages. It is against this decision, the appeal is filed. 5. The learned counsel appearing for the appellant had strenuously argued before me regarding the lacuna which he wants to point out in the A.S. 679/98 & RP 893/2004 4 judgment of the trial court. Of course, a reading of the judgment as a whole would create some confusion in the mind of anybody. But the facts are very clear. Now there is one original pass given which is numbered as '14'. Then, the second pass is one which is numbered as '22'. The third pass is one which is numbered as '33'. Now the contention of the plaintiff is that he had removed the materials from the forest to the private yard on the strength of pass No. '22' and it was from that yard, the 14 logs of wood were seized and at that time, the forest officials had seized pass No. '22' thereby depriving the plaintiff of a valid document which would have enabled him to sell the wooden materials. It is true that if materials are sufficient to hold that all these logs were available in the court yard of Varkey Mariamma and only 14 logs were seized and the remaining was lying there, certainly, the plaintiff has a strong case. But it is for the plaintiff to prove that at the time of seizure of the 14 logs of wood, the other wood was also available in the court yard. Now, learned counsel would contend that those logs of wood were removed from the yard of Varkey Mariamma to his private place and he was not able to sell it. Certainly, he should have taken out a commission or he should have adduced evidence satisfactorily to satisfy the conscience of the Court regarding the existence of those logs of wood in his private yard. Learned counsel's contention that in the absence of a pass it could not A.S. 679/98 & RP 893/2004 5 be sold, is a matter which comes only if it is proved that on the date of seizure the other logs of woods were lying somewhere under his custody. Therefore, in the absence of that materials, I am also not inclined to hold that the plaintiffs have succeed in proving the said position. So, as held by the trial court, when only materials are forthcoming with respect to 14 logs and one log alone was not returned, there is a duty cast upon the Government to compensate the plaintiff with respect to that particular wood. The trial court had estimated it at Rs.1,000/-. Now the learned counsel for the appellant has pointed out to me that the size of the wood not returned is 315 x 280 cum. which comes to 1.544 metres and it is വണക . At the rate of Rs. 1,520/- per Cubic metre, the price would come to Rs. 2,346/-. The trial court decree is modified and the plaintiff is given a decree for realisation of Rs.2,346/- (Rupees two thousand three hundred and forty six only) with 6% interest on the said sum from the date of suit till realisation. The parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. knc/- A.S. 679/98 & RP 893/2004 6 M.N. KRISHNAN, J. = = = = = = = = = = = A.S. NO. 679 OF 1998 & R.P.893 OF 2004 = = = = = = = = = = = = = = J U D G M E N T DATED : 13TH OCTOBER, 2010