AS/24/1955 of OUSEPH Vs ANTHONY on 29 May 1956

1. Anthony,son ofArakkal Varied, resident at annuthy,OJ.lukar:a Village,Trichur•raluk

2. Mathai,sonofThadathil· Verghese, resident at PattikkatDesom,Panan cherri VillageTrichur 'i'aluk Respondent1 by advocate Shri K.F.Abraham This appeal suit having been finally heard_on 2.5.1956, thecourton the sameday delivered the following JUDGJY:ENT

This appeal arises out of a suit on a contractC)nly twopoints w now arise fordecision.The contract was for the fellingandsale of timberstanding incertainproperties.The plaintiffto who the timberwas, to be sold had paid an advance of Is.250.In this appeal which is filed by the plaintiff he claims that he isentitled to recover back from 'the. defendants this advance.Defen-..I:..:.dants' harade a,counter claimin the suit for Rs. 61 Fs due to themfrom the:::>le:intiff on acc;ountof the price of timber actually soldto him.Although plaintiff denied liability-for thiscounterclaim,the court below allowed it and gave a decree. to tne, dBfenda,nts forRs368which is the balance after settingoff the advance amountof Rs.250 against the amount of Rs. 618 due to them.Plaintiffhas not objected in the a.ppea):. to the decree thus given to the· def endants.Since the advance amount· hots be en taken into account insett.ling the accounts betiveen theplaintiff and the defendantsto thep.irice of the timber sold: to him the plaintiff can.not beallowed to recover again the ,advfttnce amount from the defendants.

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Therefore the first point urged· in the appeal 11:: s to be decided...against the plaintiff.On the second point also the plaintiff isnot entitled to succeed .'The plaintiffs grievahc e in regard tothat point is the disallowance of a cJ.aim for damages in respect of certain trees in the propertieswhich according to him the 'defendants should have sold to him under- the contract andv..hich they re ve admitted ly sold to otherpersons.Under this head the· plain -tiff claimsRs.750.The evidence of Ds1 to 4, which has beenaccepted by thecourt below, shows that after the agreement the pla:in-.tiff visited the properties and selected the trees he wanted, th.c::,tall these trees were felled and sold to the plaintif f, and that thedefendants have sold to other personsonly the treeswhich theplaintiffdid not want.2 is the Forest Guard who had to makethe v~rific::,tions~n· connec½'.ion with the issue of• the ne·cessary passV!edo not see any reason to differ from the court below as to the8redibility of these witnesses, and in the light of theevidence ~'the se witnesses f ±lWIESE we consider the plaintiff's claim under this head to be unsus ta inable.In the result the appealfails and· is dismissed with costs.fails and· is dismissed with costs.

29.5.1956

SD.G.KUMARA PILLAI, JUDGESD.A.VARADARAJA IYENGAR,JUDGEI truecopy I~.

t'.D:eputy RegistrarFor Registral'.'

l wake. l s.s.

-4 a.k.--7s

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