DAYANANDAN Vs. PARAMESWARA PANICKER
HIGH COURT OF KERALA
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(1.)IN this appeal by the 16th defendant, the legal representative of the deceased 3rd defendant, arising out of a final decree for redemption of a mortgage Ext. B of the year 1086, two questions were urged, first relating to the value of improvements in respect of coconut trees assessed by the lower court at Rs. 3833/-and second, whether improvements from the year 1074, and up to the date of Ext. B ought not to be valued and paid for.
(2.)ON the first question, the District Judge held that the commissioner had valued the coconut trees as prescribed by Act 29 of 1958 on the basis of the average price of coconuts for a period of ten years immediately preceding the institution of the suit, as ascertained from the nirak rates published in the Government Gazette from time to time during the relevant period. The correctness of the rate as so ascertained, is not in dispute. During the pendency of this appeal, a table of prices has been prepared and published under S. 13 (1) (a) of the Act, showing the price of coconuts in ambalapuzha Taluk, where the land is situated, to be Rs. 173/- per 1000. By s. 13 (2) of the Act, the rate specified in the table has to be presumed to be the "proper rate" until the contrary is proved. The proviso to s. 13 (2) reads: "provided that, in so far as such tables prescribe prices, of products, the presumption shall not be rebuttable except by proof of the average price as provided in S. 14". Reading Ss. 13 (2) and 14, the term "proper rate" occurring in S. 13 (2) has reference to "the average price, as nearly as may be ascertainable in the taluk where the land is situated, for a period of ten years immediately preceding the institution of the suit", which under s. 14, has to be adopted as the "money value for the purpose of awarding compensation under sub-section (1) of S. 7. The presumption as to such "proper rate" is rebuttable only on proof of "the average price" and if there is such proof, the presumption will stand rebutted. In this case after enquiry, the judge held as remarked earlier, that the commissioner has ascertained the average price correctly, on the basis of the nirak rates for the ten years, and rejected the contention, that the nirak rates did not correspond to the actuals. The average price so ascertained was rs. 5. 84 per hundred coconuts. It may he noted that the suit was instituted in the year 1121. So the presumption has been rebutted.
But it was argued, that the table having been published only during the pendency of this appeal, there was no opportunity for the appellant to rebut the presumption. As stated, the presumption under s. 13 (2) is that the rate specified in the table is the proper rate, that is, it represents the average price as defined in S. 14, which is the basis of awarding compensation under S. 7 (1 ). So, the average price was in issue by reason of S. 14 even before the publication of the table; the parties went to trial on that issue, adduced evidence and examined the commissioner. The Judge has disposed of that issue on the merits. It seems to me highly technical to contend, that the publication of the table has given a further lease of life to that very dispute as to average price which has been set at rest, and I do not see any warrant to accept that contention. The case reported in Kochuparvathy v. Chandrasekharan Pillai 1963 KLT. 711 was remanded on the ground that the issue itself had not been tried, as the commissioner though present in court pursuant to summons was not examined, and "the basis on which the commissioner fixed the average price" was not disclosed in the report and apparently no other material was adduced. For the reasons stated, the situation in the present case is different.
The second question whether the appellant is entitled to the value of improvements from the year 1074 was found against by the district Judge in the preliminary judgment. By Ext. G release deed by which the mortgagee under Ext. B redeemed the prior mortgage, the value of improvements paid to the latter had been treated as part of the mortgage amount payable. I have called for and perused the memorandum of appeal in the High Court against that judgment and no specific ground was taken claiming the value of improvements from the year 1074. Before the High Court, only the mode of assessing the value of improvements was raised. CMP. 625 of 1957 was filed by the appellant only for revaluation of the improvements. On this part of the case the High Court only ordered, that the improvements be valued in accordance with the provisions of Act X of 1956 which was then in force. Nothing said in the judgment of the High Court can be taken to reopen the decision of the district Judge, that improvements from the year 1074 were not to be paid for. For these reasons the appeal is dismissed with costs to the contesting respondents, one set only. Dismissed.
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