Full Judgment Text
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PETITIONER:
STATE OF KERALA AND ANR.
Vs.
RESPONDENT:
KANAN DEVAN HILLS PRODUCE CO. LTD.
DATE OF JUDGMENT07/02/1991
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
KASLIWAL, N.M. (J)
CITATION:
1991 SCR (1) 261 1991 SCC (2) 272
JT 1991 (1) 330 1991 SCALE (1)145
ACT:
Forests: Travancore Cochin Forest Act, 1951-
Section 93(2)(d) (dd) & (e)-Rules regulating the levy
of Kuttikanam on trees in respect of Government
lands-Kuttikanam-Govt. share of the value of the
trees-Ownership over the growth-Held Government has
right to levy and demand Kuttikanam under the 1951
rules saved by Section 85(3) of the Kerala Forest Act,
1961.
HEADNOTE:
The dispute between the parties is regarding the
ownership rights and right of removal of timber clear-
felled from 150 acres of jungle area in Kallar Valley
in the erstwhile Travancore territory of Kerala State
commonly called the Kanan Devan Hills Concession
area over which the Poonjar Raja held free-hold
proprietary rights under the suzerainty of Travancore
State.
By a deed dated July 11, 1877 called the
’First Concession’ (Exhibit P-1) the Raja conveyed the
concession area with all the Hills and Forests to one
J.D. Munro for a certain cash consideration and a
deferred perpetual annual payment from 1884
onwards. This was followed by another deed
(exhibit P-2) between the same parties reiterating
all the original terms. This grant to Munro was
ratified by the Travancore Government by a deed
dated November 28, 1878 (Exhibit P-62). Munro in
turn assigned the area to the North Travan-core Land
Planting & Agricultural Society Ltd. Later an
agreement was executed between the Travancore
Government and the Society in August 1886 (Exhibit
P-64). In 1899 the entire territory comprising the
Kanan Devan Hills including the concession area was
declared part of Travancore State. After several
transfers the concession area finally came to be
vested in the Respondent Company in virtue of a Deed
dated July 16, 1900.
Somewhere in 1963 the Respondent Company clear-felled
about 150 acres in the concession area for cultivation and
sought permission from the State Government for grant of
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free passes to carry the felled timber out of the concession
area. The Government by order dated 25.11.1966 informed the
company that it could not take out the timber
262
from the concession area without payment of Kuttikanamin
terms of the deeds of conveyance/ratification. Thereupon
the company filed a suit against the State praying inter
alia for a declaration claiming full ownership, title and
right to remove the timber without payment of Kuttikanam, a
mandatory injunction directing the defendants to grant free
passes for removal of the timber and a prohibitory
injunction to restrain it from taking any further steps
under its order dated 25.11.1966. On the interpretation of
Exhibits P-1, P-2, P-62 and P-64 the trial court came to the
findings that the company did not acquire absolute
proprietary rights over the concession area or the trees and
timber. It also held that the Government was justified in
demanding Kuttikanam in terms of the Rules framed under the
Travancore Cochin Forest Act, 1951. Accordingly the suit
was dismissed.
The Company preferred an appeal to the High Court which
was allowed and the decree of the Trial Court set aside.
The decision of the High Court has been challenged by the
State in this appeal by way of special leave. This court
while allowing the appeal and setting aside the judgment of
the High Court,
HELD: The respondent-company did not acquire
absolute proprietary rights over the Concession Area or
the trees and the timber therein. The company only
acquired the right to fell the trees and use the
timber subject to the restrictions imposed in clause 7 of
the agreement Exhibit P-64. Since the respondent-
company has no right to remove the timber beyond the
limits of the Concession Area, the State Government
was justified in refusing to permit free
transportation of timber from the said area. [269C]
Clause 7 states that no unworked timber or
articles manufactured therefrom shall be carried outside
the limits of the grant except in conformity with the
rules of the forest department for the time being in
force. [270D]
The Government of Kerala, in exercise of its
rule making power under Section 93 of the Travancore-
Cochin Forest Act, 1951 had by a notification dated
July 9, 1958 framed rules regulating the levy of
Kuttikanam on trees standing on Government land. [270E]
The rules were holding the field at the relevant time
and the Government was justified in demanding Kuttikanam
from the Company. [272A-B]
263
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1277
of 1979.
From the Judgment and Decree dated 4.8.1977 of the
Kerala High Court in A. S. No. 640 of 1971.
G. Viswanath lyer, F.S. Nariman, K. Parasaran,
K.R. Nambiar, P. K. Pillai, S. Balakrishnan, S.
Ganesh, Joy Joseph, Mrs. A.K. Verma, S. Sukumaran
for J.B.D. & Co., Baby Krishnan and V.J
Francis for the appearing parties.
The Judgment of the Court was delivered by
KULDIP SINGH, J. The dispute before us is
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regarding the ownership rights over the timber clear-
felled from about 150 acres of jungle-area in Kallar
Valley and the right to transport the timber so
felled from the said area.
The Kallar Valley area forms part of the tract of
land originally known as Kanan Devan Anchanatu Mala
in the erstwhile Travancore territory of Kerala
State. This area is generally called the Kanan Devan
Hills concession (hereinafter called the
’Concession Area’) ’ The Poonjar Rajs, held free-hold
proprietary rights in the Concession Area. Originally
the Raja was exercising sovereign rights but later on
he came under the suzerainty of Travancore State.
The Poonjar Rajsa, by a deed dated July 11, 1877
(hereinafter called ’First Concession’), conveyed the
concession area with all the hills and forests therein to
one J.D. Munro for cash consideration of Rs.5,000 and a
deferred perpetual annual payment of Rs-3,000 from 1884
onwards. Thereafter on July 26, 1879 a second document was
executed between the same parties (hereinafter called
’Second Concession’). The terms of the first concession
were reiterated enuring to Munro, his heirs, successors and
assigns absolute right for ever to make all kinds of
cultivations and improvements on the Concession Area.
The grant of rights to Munro by the First Concession
was ratified by the Travancore Government by a deed of
ratification dated November 28, 1878. Munro assigned the
Concession Area to The North Travancore Land Planting and
Agricultural Society Limited by a deed dated December 8,
1879. Thereafter an agreement was executed between the
Travancore Government and the Society on August 2, 1886.
264
By virtue of the agreement dated September 18, 1889 between
the Poonjar Raja and the Travancore Government and
the proclamation of the Maharaja of Travancore dated
August 24, 1899 the territory comprising the Kanan
Devan Hills including the Concession Area was
declared part of the Travancore State. There were
various transfers in respect of the Concession Area but
finally by a deed dated July 16, 1900, the Concession
Area came to be vested in the Kanan Devan Hills
Produce Company Limited, (hereinafter called’the company’).
In and around May 1963 the company clear-felled
about 150 acres in the Concession Area for cultivation.
The Company applied to the State Government for grant of
free passes to transport the timber from the
Concession Area. The State Government by an order
dated November 25, 1966 informed the company that it
could not take away timber outside the limits of the
Concession Area except in accordance with the Rules of
the forest department and on payment of levy in the
shape of Kuttikanam. According to the Government in
terms of the deeds of conveyance/ratification the
company was liable to pay Kuttikanam in respect of the
timber taken out of the Concession Area.
The company filed a suit in the year 1968 in the Court
of Subordinate Judge, Kottayam against the State of Kerala
and its officers. In the suit, the company prayed for the
following reliefs:
(a) A declaration that the plaintiff-company has
full and unqualified ownership and title over,
and right of removal of the said timber from the
Concession Area;
(b) Declaration that the State has no right to
claim seigniorage, Kuttikanam or any other payment
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in respect of the said timber;
(c) A mandatory injunction directing the
defendants to grant the necessary free passes for
the free transit of the timber outside the
Concession Area;
(d) Prohibitory injunction restraining the
defendants from taking any steps under the order
dated 25.11.1966.
The State Government resisted the suit and controverted
the interpretation placed by the company on the deeds of
conveyance/ ratification. According to the State the
company was only a lessee of the Concession Area and in
terms of the deeds of conveyance/ratification the State
Government had the absolute right over the trees and
265
timber in the Concession Area. The company only acquired
the right to use and remove the timber subject to the
restrictions imposed in the said documents. It was further
contended by the State Government that the title and
ownership in the trees and timber in the Concession area
always remained with the State Government and the company
could only take the timber outside the limits of the
Concession Area in accordance with the rules framed
by the State Government and on payment of
Kuttikanam.
The Trial Court in a detailed and well reasoned
judgment dismissed the suit of the company. The Trial
Court on the interpretation of First Concession (Exhibit
P- 1), Second Concession (Exhibit P-2), deed of
ratification (Exhibit P-62) and the Government
agreement with the Society dated August 2, 1866
(Exhibit P-64) came to the conclusion that the company
did not acquire absolute proprietary rights over the
Concession Area or the trees and timber in the said
area. It was held that the Poonjar Chief had only
conveyed heritable and transferable possessory rights
over the Concession area to the grantee. It was also
held that absolute rights over the trees and timber in
the Concession Area did not pass to the grantee and it had
only the right to use and remove timber subject to
the restrictions imposed in the deeds of
conveyance/ratification. The Court further held that the
relevant rules framed under the Travancore Forest Act,
1952 for levy of Kuttikanam were applicable to the
timber transported from the Concession Area. The
contention of the company that it was entitled to free
passes for transportation of timber outside the
Concession Area under the Transit Rules was rejected.
The suit of the company was thus dismissed with
costs.
The company went up in appeal before the High
Court. It was contended that the Trial Court
misinterpreted the documents P- 1, P-2, P-62 and P-64. It
was contended that the Poonjar Raja had conveyed absolute
possession to the grantee to be enjoyed perpetually with
heritable and transferable right and it ought to have been
held that the natural consequence of such a conveyance was
to grant the company absolute title to the trees standing on
the area so conveyed. It was argued before the High Court
that the State Government had no right over the trees and
the timber within the Concession Area.
Before adverting to the various contentions raised by
the parties before it the High Court indicated the approach
it adopted to the questions involved in the case in the
following words:
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266
"For resolving the real controversy in the case
we do not think there should be an enquiry into
the question whether the plaintiff-company is the
absolute owner of the Concession Area as alleged
by them or the company is only a lessee as
contended by the defendants. Nor do we think any
decision is necessary here as to whether at the
time, the agreement and proclamation of 1899 came
into existence, the Poonjar Chief had vested in
him any proprietary rights over the Concession
Area which he could pass to the government. We
also do not think we should make a general enquiry
as to the nature and extent of the rights conveyed
and secured by the First Poonjar Concession of
11.7.1877 and second Poonjar Concession of
26.7.1879 (Exs. P 1 and P2). We can well proceed
in the matter on the basis, as stated by the court
below, that absolute rights over the Concession
Area had not been conveyed under Exs. P-1 and P-
2, that by virtue of the transactions the
plaintiff had only absolute possession with
heritable and transferable interest and the right
to enjoy the land subject to the terms and
conditions declared and defined in the Ratifica-
tion Deed and agreement of modification, namely
Exs. P-62 and P-64. The question is what is the
plaintiff’s right over the timber and tree-growth
in the area on the basis of the grant under Exs.
P- 1 and P-2, wherein it gets wide rights in
regard to the jungles and forest in the Concession
Area-unqualified rights to clear the land and
improve the source. It is no doubt true that the
rights which the plaintiff has acquired as per the
grant of the Poonjar Raja are subject to the terms
and conditions imposed by the Sovereign power of
the Maharaja under Ex. P-62 and P-64. In short
the question for a decision in the appeal will
revolve round the interpretation of the relevant
clauses in these documents."
The High Court then considered the contents of the
documents P-62 and P-64 and came to the conclusion that the
company had full rights over the timber clear-felled from
the Concession Area and it had right of removal of the
timber with the necessary free passes issued under the
timber transit rules. It was further held that the State of
Kerala had no right or claim for the seigniorage or
Kuttikanam or any other payment in respect of the said
timber. The High Court allowed the appeal of the company
and set aside the judgment and decree of the Trial Court.
This appeal via special leave petition is against the
judgment of the High Court.
267
The High Court proceeded on the basis that absolute
rights over the Concession Area had not been conveyed
under the documents of conveyance/ratification and the
right to enjoy the land was subject to the terms and
conditions declared in the ratification deed P-62 and
the agreement of modification P-64. We agree with the
approach of the High Court. The question, therefore,
is what are the company’s rights over the timber and
the tree-growth in the Concession Area. This takes
us to clause 5 of P-62 and clause 7 of P-64 which are
relevant.
Clause fifth of the ratification dated November 28,
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1878 Exhibit P-62 is as under:
"Fifth: The grantee can appropriate to his
own use within the limits of the grant all
timber except the following and such as may
hereafter be reserved, viz., Teak, Coal-teak,
Black-wood, Aboney, Karinthali Sandalwood.
Should he carry any timber without the limits
of the grant it will be subject to the
payment of Kuttikanam or customs duty or
both as the case may be in the same way as
timber ordinarily felled. In the case of the
excepted timber the grantee is required to pay
seigniorage according to the undermentioned
scale....... The grantee is bound to deliver
to the Poonjar Chief, to enable him to make over
to the Sirkar, all ivory, cardamoms and other
royalties produced in the land and all
captured elephants and he will be paid by the
said Chief according to agreement with him
the regulated price for the articles of produce
and the regulated reward for the elephants.
Clause 7 of the agreement dated August 2, 1886
Exhibit P-64 is as under:
"7. The society, its successors and assigns
may use and appropriate to its own use within
the limits of the said tract of land all
timber except the following and such as may
hereafter be reserved, viz., Teak, Coak-teak,
Black-wood, Aboney, Karinthali and Sandalwood.
But such society, its successors and assigns
shall not fell any timber beyond what is
necessary for clearing the ground for
cultivation and for building, furniture and
machinery within the limits of the grant. No
unworked timber or articles manufactured
therefrom shall be carried outside the limits
of the grant except in conformity with the rules
of the forest and
268
customs department for the time being in force. In
the case of the excepted timber the society for
itself, its successors and assigns agrees to pay
seigniorage according to the undermentioned
scale.............. The society for itself, its
successors and assigns agrees to deliver to the
said Poonjar Raja or Chief to enable him to make
over the same to the government of Travancore, all
ivory and cardamoms and other royalties.......
captured elephants.........
Mr. Parasaran, learned counsel appearing for the
respondent-company contended that in P-62 it was provided
that the grantee could not carry timber beyond the limits of
the grant without payment of Kuttikanam but by the time the
agreement P-64 was executed in the year 1886 Kuttikanam had
been abolished and as such there was no provision for the
payment of Kuttikanam in the document P-64.
Clause 7 of P-64 reproduced above makes it clear that
the respondent-company may use and appropriate to its own
use within the limits of the Concession Area all timber
except to the extent mentioned therein. It was further
provided that........... society, its successors and assigns
shall not fell any timber beyond what is necessary for
clearing the ground for cultivation and for building,
furniture and machinery within the limits of the grant. No
unworked timber or articles manufactured therefrom shall be
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carried outside the limits of the grant except in conformity
with the rules of the forest and customs department for the
time being in force". It is thus clear that the company has
no right under the said clause to carry the unworked timber
beyond the limits of the grant. The company could not fell
timber beyond what was necessary for clearing the ground for
cultivation and for building, furniture and machinery within
the limits of the grant. Clause 7 clearly indicates that the
grantee has no absolute right of ownership over the tree-
growth and the timber within the Concession Area. The
ownership remains with the Government and the grantee has
been given the right to fell the trees for clearing the
ground for cultivation and to use the timber for specified
purposes within the limits of the grant. An identical
clause in another grant entered into by the Travancore
Government came for consideration before a Full Bench of the
Kerala High Court in George A Leslie v. State of Kerala, [
1969] K. L.T. 378. K. K. Mathew, J. (as the learned Judge
then was) interpreted the clause as under:
"We think that if title to the reserved trees
passed to the grantees, a provision of this nature
would have been
269
quite unnecessary. There was no purpose in
stating that the grantees will be free to
appropriate the reserved trees for consumption
within the limits of the grant, if title to
the trees passed to the grantees; the provision is
a clear indication that the grantees were
allowed to cut and appropriate the reserved
trees for consumption within the limits of the
grant as a matter of concession.
We agree with the interpretation given to the
clause by Mathew, J. and hold that the respondent-
company did not acquire absolute proprietary rights
over the Concession Area or the trees and the
timber therein. The company acquired the right to fell
the trees and use the timber subject to the restrictions
imposed in clause 7 of P-64. Since the respondent-
company has no right to remove the timber
beyond the limits of the Concession Area, the State
Government was justified in refusing to permit free
transportation of timber from the said area.
We do not agree with Mr. Parasaran that
Kuttikanam having been abolished in the year 1884
the respondent-company was not liable to pay
Kuttikanam while transporting the timber from within
the Concession Area. In Leslie v. State of Kerala
(supra) the term "Kuttikanam" was explained as under:
"In the Malayalam and English Dictionary by
Rev. H. Gundert D. Ph. page 278, ’Kuttikanam’
is defined as meaning ’the price of timber;
fee cliambable by the owner for every tree
cut down by the renter’. In ’The Manual
of Malabar Law’ by Kadaloor Ramachandra
lyer, Chapter, VII, page 44, it is stated:
’Kuttikanam is a mortgage of forests by
which the landlord assigns on mortgage a
tract of forest land receiving a
stipulated fee for every trees felled by
the mortgagee, the entire number of the
trees, to be cut down and the period
within which they are to be felled
being expressly fixed in the karar entered
into between the parties.......
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In the Glossary attached to the Land Revenue
Manual (1916) Vol. IV, at page 883, the word
’Kutti kanam’ is said to mean ’a fee paid to the
Sirkar for felling trees other than royal trees
and tax-paying trees’. In the
270
Glossary of Administrative Terms, English-
Malayalam, by the Official Language Committee, at
page 302, ’seigniorage’ is defined as
meaning........
We do not think that ’Kuttikanam’ is either a
fee or tax. A tax or fee is levied in the
exercise of sovereign power. We think that in the
context ’Kuttikanam’ means the Government’s share
of the value of the reserved trees."
It was further held by Mathew, J. that
Kuttikanam being the Government’s share of the value
of the trees owned by the Government it has the
power to fix the value of the trees. We agree with
the reasoning and conclusions reached by Mathew J.
Since the ownership cover the tree-growth and timber
in Concession area vests with the Government it has a
right to impose Kuttikanam on the removal of the
trees from within the Concession area.
We may examine the justification for levying
Kuttikanam from another angle. Clause 7 of P-64
states that no unworked timber or articles
manufactured therefrom shall be carried outside the
limits of the grant except in conformity with the rules
of the forest department for the time being in force.
The Government of Kerala, in exercise of its rule
making power under Section 93 of the Travancore-
Cochin Forest Act, 1951, framed rules regulating the
levy of Kuttikanam on trees, standing on Government
land by a notification dated July 9, 1958. The said
rules are reproduced hereinafter.
"TRAVANCORE-COCHIN FOREST ACT, 1951 (111 OF 1952)
RULES REGULATING THE LEVY OF KUTTIKANAM ON TREES
IN GOVERNMENT LANDS. (Section 93(2)(d)(dd) and (e)
Notification No. 14824/58-3/Agri./F.(B) 3 dated
9th July 1958 published in the Gazette dated 15th
July 1958 Part 1, Page 2189.
In exercise of the powers conferred by sub-
section (2)(d)(dd) and (e) of Section 93 of the
Travancore-Cochin Forest Act, 1951 (Act Ill of
1952) the Government of Kerala hereby make the
following rules, regulating the levy of Kuttikanam
on trees, standing on Government lands, namely:
271
1. All trees standing on land temporarily or
permanently assigned, the right of Government
over which has been expressly reserved in
the deed of grant or assignment of such
land, shall be the absolute property of
Government.
2. It shall not be lawful to fell, lop, cut
or maim or otherwise maltreat any tree which
is the property of Government without
proper sanction in writing granted by an
officer of the Forest Department not below the
rank of an Assistant Conservator:
Provided that in cases where the holder of
the land is allowed under the title deed to lop
or fell any such tree, such lopping or
felling may be done by such holder in the
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manner and subject to such conditions and
payment as may be specified in the title deed in
that behalf. Any lopping or felling of such
trees otherwise than in accordance with the
conditions and limitation specified in the
deed of grant shall be unlawful.
3. Government may, in the absence of any
provision to the contrary in the title deed,
sanction the sale of timber which is the
property of Government to the holder of the
land on which such timber is standing, on
payment of Kuttikanam or Seigniorage or such
other rates as may be specified by Government in
each individual case. In cases where the title
deed specified the rate at which the timber will
be sold to the holder of the land, such rates only
will be levied.
Explanation: ’Kuttikanam’ means the seigniorage
rate that may be in force in the Forest
Department from time to time and notified by
Government.
4. The Collector of each District shall forward
to the Chief Conservator of Forests a statement
showing the full details of the trees
standing on such lands at the disposal of
Government as may hereafter be granted for
permanent cultivation, under the Land Assignment
Act and the rules framed thereunder. On receipt
of such statement, the Chief Conservator of
Forests will take appropriate action for the
disposal of such tree growth within the period
allowed under Section 99 of the Forest Act.
272
The Travancore-Cochin Forest Act 1951 was repealed by
the Kerala Forest Act, 1961 but Section 85(3) of the said
Act saves the rules framed under the repealed Act. It is
thus obvious that the rules reproduced above were holding
the field at the relevant time. The trial Judge primarily
relied on these rules for holding that the Government was
justified in demanding Kuttikanam from the respondent-
company. The High Court, however, did not take into
consideration these rules while interpreting clause 7 of
Exhibit P-64. We agree with the findings of the trial court
to the effect that the above quoted rules read with clause 7
of Exhibit P-64 empowers the State Government to levy and
demand Kuttikanam from the respondent company in respect of
timber taken out of the limits of the Concession area.
Mr. Parasaran invited our attention to a letter dated
May 21, 1932 (Exhibit P-4) from Chief Secretary to
Government to the General Manager of the respondent-company.
The letter reads as under:
"With reference to your letter dated the 25th
January, 1928 regarding the payment of seigniorage
on reserved trees felled from the K.D.H.P-
Company’s Concession Area, I have the honour to
inform you that Government accept your view that
no seigniorage is due from the Company on trees
other than the Royal Trees specifically mentioned
in Clause 7 of the Agreement and sanction
accordingly."
Mr. Parasan contended that the State Government
interpreted clause 7 of P-64 to mean that no seigniorage
(Kuttikanam) was due from the company on trees other than
the Royal Trees specified in the said clause. He argued
that in the face of the Government decision in the above
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letter the Government could not demand Kuttikanam from the
respondent-company in respect of the non-Royal Trees removed
from within the limits of the Concession Area. We do not
agree with the contention of the learned counsel. The
letter re-produced above refers to the letter dated January
25, 1928 (exhibit P-3) written by the General Manager of the
company to the Government. The letter P--l states as
under:
"The question arose through the Forest Department
claiming seigniorage on certain species of timber,
used by this Company within the concession area
for building purposes, and which have been
reserved under the Forest Regulation.
273
The letter also states as under:
A
"..... I think it advisable that the whole
question of Timber Rights in the Concession
should be considered and settled if possible."
It is no doubt correct that while focusing the
controversy in respect of the timber used by the
company within the Concession Area the General Manager
dealt with the larger question of timber rights in the
Concession Area but reading the two letters P-3 and
P-4 together the only conclusion which could be reached is
that the letter P-4 was with respect to the use of timber
by the company within the Concession Area. The letter
P-4 cannot be read to mean that no Kuttikanam was
leviable on the timber removed by the respondent-
company outside the Concession Area. In any case the
wording of clause 7 of P-64 is clear and unambiguous. The
Government letter P-4 is to be read in the light of
clear phraseology of clause 7 and not the vice-versa.
We allow the appeal and set aside the judgment
of the High Court. We uphold and approve the judgment
and findings of the Trial Court. The suit of the
respondent-plaintiff is dismissed with costs which we
quantify as Rs.5,000
R. N. J. Appeal allowed.
274