IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 AS.No. 793 of 1995() -------------------- OS.475/1993 of SUB COURT,NEYYATTINKARA .................... APPELLANT: --------- KERALA STATE WAREHOUSING COARPORATION, ESTABLISHED, OWNED BY GOVT. OF KERALA, REPRESENTD BY ITS MANAGING DIRECTOR. BY ADV. SRI.N.D.PREMACHANDRAN SRI.MAJNU KOMATH, SC, K.S.W.C. RESPONDENTS: ------------ RAIHAMATH BEEVI, D/O.BIYATHUKANNU, MUSLIM, AGED 36, RESIDING AT FARM HOUSE,KOTTAMAM, PARASUVAIKAL, PARASSALA. BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.625/95 & IA.3224/07 IN A.S.793/1995 ------ Dismissed Sd/- P.R.RAMAN, JUDGE. 15/2/2008 Sd/- V.K.MOHANAN, JUDGE. True Copy P.S. to JUDGE. P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = A.S. NO. 793/1995 = = = = = = = = = = = = DATED THIS, THE 15TH DAY OF FEBRUARY, 2008. J U D G M E N T Raman, J. Plaintiff is the appellant. The suit is one for recovery of money paid under mistake. As per the plaint averments, an extent of 1 acre of land in Sy. No. 176/4B/3 along with the building therein belonging to the defendant was agreed to be sold to the plaintiff for an agreed price of Rs. 9,45,000/-. The agreement for sale is produced as Ext.A1 dated 26.9.1983. Thereafter, the defendant executed a sale deed Ext.A4 dated 29.6.1984. Subsequent to the agreement for sale, the defendant put up a wall separating the property to be sold from the rest of the property in her possession. But it was found later that what was actually sold to the plaintiff was only 86 cents and as such the sale deed was not strictly in terms of the agreement for sale as it was less by 14 cents in extent from what was agreed upon. Hence notice was issued by the defendant demanding the value of 14 cents to be returned which was not complied with and hence the suit. The suit claim is for an amount of Rs. 1,24,560/- with interest at 12% per annum from 2.7.1984. 2. In the written statement, the defendant contended that the property A.S. 793/1995 :2: sold to the plaintiff originally belonged to her as per a partition deed of the year 1978. But she has not disputed that the actual extent sold to the plaintiff was less than the extent what was originally agreed upon. According to her, the value of the building fixed was Rs.4,92,000/- and the defendant had spent an amount of Rs. 1,40,000/- for evicting the tenants and a further amount of Rs.1,35,000/- for construction of the compound wall, which were taken into consideration in fixing the land value and no fraud was committed by her as alleged by the plaintiff. 3. The court below framed an issue as to whether the plaintiff is entitled to recover the value of 14 cents and if so, what is the amount, if any, to which the plaintiff is entitled to. The evidence consists of the oral testimony of PW.1, Exts.A1 to A5 and Exts.C1 and C1(a). No oral or documentary evidence was adduced by the defendant. 4. The plaintiff is a public sector undertaking belonging to the Government of Kerala. It is not disputed that there is an agreement for sale between the parties as per Ext.A1 and subsequently, properties were sold as per Ext.A4. There is no dispute that the actual extent sold as per Ext.a4 is only 86 cents and what was agreed upon to be sold was one acre along with the building therein. Therefore, there is a deficiency of 14 cents. The A.S. 793/1995 :3: court below found that the plaintiff is entitled to recover the price of 14 cents from the defendant and this issue was decided in favour of the plaintiff. But it went on to hold that there is no acceptable evidence to show that the market value of the land as fixed by the parties was absolute and that the value of the building was Rs. 1,41,042/-. According to the court below, a consolidated amount of Rs.9,45,000/- was fixed as per the agreement. Hence according to the court below, there is no evidence to prove that the parties have agreed that the price of the land is Rs.8,040/- per cent. The plaintiff, on such reasoning, was non-suited. 5. We have heard the parties. The admitted facts are that Ext.A1is the agreement for sale by which defendant agreed to sell 1 acre of land along with a building therein to the defendant for the total consideration fixed therein. It is also admitted that Ext.A4 takes in only 86 cents of land and there is a deficiency of 14 cents. The only dispute is as to what is the value of the land to be fixed. The total consideration fixed in Ext.A1 is 9,45,000/-. It is also admitted that there is a building in the property. But centage value as such is not fixed in the agreement nor is the building value separately shown. Therefore, to fix the value of the land per cent, Ext.A1 is of no help. It has to be noticed that there is no schedule attached to Ext.A1 A.S. 793/1995 :4: agreement. But there is a recital in Ext.A1 to the effect that the extent of the property as obtained by the defendant is one acre as per the partition, which is agreed to be sold. It was with that understanding that the subsequent sale deed was executed as per Ext.A4. There is an indication in Ext.A4 that the consideration fixed for the building is Rs. 4,92,000/-. If this is deducted, the balance will come to Rs. 4,53,000/-. On a rough calculation, the centage value would come to Rs.4,530/-. If so, the land value for 14 cents would come to Rs.63,420/-. Even though the plaintiff has claimed an amount of Rs. 1,24,560/- and claimed that the centage value was Rs.8,040/- no acceptable evidence is adduced by them in this regard. Therefore, based on the available evidence, it has to be found that the land value for 14 cents could be fixed as Rs. 63,420/-. 6. In the result, we find that the court below ought to have taken into consideration the documentary evidence produced in the case and fix the land value based on such evidence and granted a decree. We have already found that the total value for 14 cents would be Rs. 63,420/- which is rounded to Rs. 65,000/-. The plaintiff will be entitled for interest at 12% per annum from the date of Ext.A4 namely, 29.6.1984 till the date of suit and thereafter at 6% till realisation. A.S. 793/1995 :5: Accordingly, the appeal is allowed and the suit is decreed for an amount of Rs. 65,000/- along with interest at 12% per annum from 29.6.1984 till the date of suit and thereafter at the rate of 6% till realisation with proportionate costs. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/- A.S. 793/1995 :6: P.R. RAMAN & V.K. MOHANAN, JJ. A.S. 793/1995 ---------------- J U D GM E N T 15TH FEBRUARY, 2008.