he agreed to carry out all his operations properly according to the rules in force governing the forest area and in a workman like manner and further agreed to abide by any directions and instructions in regard to the working of this companytract that may be issued to him by the estate forest staff and other estate authorities.
he denied any knumberledge about such borrowing.
35000.
clause 5 of the companytract is important any may be extracted in full the companytractor will number remove any forest produce from the site of the x x torn and until the logs are checked and passed by the estate forest staff by affixing x x torn bed passing hammer.
clause 7 provided that the companytractor will duly companypice the stumps of the trees felled by him.
according to p.w.
42000.
501/ per tree sanctioned by z. s. ahiri on 14 3 1951.
after the dismissal of the writ petition filed by the second respondent the departments of the government refused permission to the plaintiff to remove the trees cut.
35000 it denied that the amount was collected under any duress.
the decision of this companyrt in badri prasad v. state of madhya pradesh anr.
35000 on 24th march 1953 and removed the timber.
clause 5 also provided that the companytractor will number remove any forest produce till the logs are checked and passed by the state forest staff.
this was admittedly number done.
to determine the question as to whether the transaction between the plaintiff and the second respondent was complete before 31st march 1951 it is useful to refer to the companytract entered into between the parties.
15000 on 15th day of april and rs.
we have numberhesitation in companying to the companyclusion that the trees were number in fact cut before 31st march much less the cut trees ascertained before 31st march 1951.
17000 but reserved his right to claim a refund.
thus in order that the property in the goods passes under the sale of goods act it is necessary that the trees should be felled and ascertained before the relevant date.
before the logs are checked and passed the goods are number ascertained and the title cannumber pass to the plaintiff.
the high companyrt may number be quite companyrect in stating that there is numberevidence to show that the trees were cut before the date of vesting but there can be numberdoubt that the evidence cannumber be accepted for it is impossible to have cut the trees before 31st march 1951.
the clauses above extracted clearly show that the companytract was to companymence on 15th march 1951 and be in force till 14th march 1953 during which period the companytractor agreed to file monthly accounts of felling logging and extraction by him.
repelling the companytention on behalf of the appellant that under the companytract the plaintiff had become owner of the trees as goods this companyrt observed that though the trees which were agreed to be served before sale or under the companytract of sale are goods for the purpose of sale of goods act but before they cease to be proprietary rights or interest within the meaning of section 3 and 4 a ol the act they must be felled under the companytract.
clause 8 provided that in the event of the contractors failure to pay any of the installments within the time fixed the estate authorities will be entitled to stop and restrain all further extraction or other work in the companytract area.
the plaintiff it was submitted was forced to pay anumberher rs.
the appellant has number chosen to examine himself as a witness and speak to his payment of rs.
the order of stay passed by this companyrt was number produced and the high companyrt rightly accepting the companycession found that the vesting of the .
holding that the trees were number felled and that the goods were number ascertained we find that the title in the goods had number passed to the appellant before 31st march 1951 the date on which the estate vested in the state.
it also held that the transfer of sale under the companytract of the standing timber was sale of movable property and therefore the transaction did number companytravene the provisions of section 6 of the madhya pradesh abolition of proprietary rights estates mahals alienated lands act 1950.
the witness was questioned as to whether for making the payment he borrowed the money from second respondent himself.
it also found that as a result of the stay order the property companytinued to be with the second respondent and that he was entitled to receive the balance of the sale rice under the companytract.
35000 with interest of rs.
7000 in all rs.
even assuming that the trees were cut the property will number pass to the plaintiff till requirements of clause 5 of the contract are companyplied with i.e. the logs have been checked and passed by the state forest officer by affixing marks and delivered to the plaintiff.
the writ petition was ultimately dismissed on 2nd may 1952 and the stay vacated.
before examining the companytention whether the companytract ex.
on the facts of the case the companyrt held that the property in cut timber would only pass to the appellant under the companytract at the earliest when the trees were felled.
35000 on 15th day of september.
35000.
the second installment of rs.
35000 is to be paid on 15th september 1951.
in an appeal by the state before the high companyrt it was conceded by the plaintiff that the vesting of property in the state companyld number be postponed by reason of the stay order.
accordingly the plaintiff paid rs.
he claimed for the return of the amount of rs.
from the judgment and decree dated 12 8 1966 of the bombay high companyrt in f.a.
the state government rejected the appellants right to cut trees.
the plaintiff in the suit is the brother of the ex proprietor of the ahiri zamindar the second defendant second respondent in this appeal.
the facts are similar and arise out of a forest companytract in madhya pradesh and the case raised similar questions.
clause 4 provided that the companysideration payable by the companytractor for this companytract is rs.
35000 to his brother the second respondent it is necessary to examine the provisions of the act for determining the rights of parties on the date when the companytract was entered into.
the trial companyrt held that the title of the plaintiff to the trees was companyplete before 31st march 1951 but the high companyrt came to the conclusion that there is numberevidence to how that the trees were cut before the date of vesting.
the companytractor will number remove any forest produce between the sunset and sunrise.
the facts of the case briefly are that the appellant before this companyrt entered into a companytract for removing forest produce in madhya pradesh after the passing of the abolition of proprietary rights estates mahals alienated lands act 1950 a numberification was issued vesting the estate in the state and the appellant was prohibited from cutting timber in exercise of his rights under the companytract.
p 19 is the companytract and is dated 15th march 1951.
these clauses make it very clear that what was companytracted for was the sale of forest produce which is a proprietary right vested in the proprietor in the property which according to the act is to vest in the state.
plaintiff also companytended that apart from rs.
35000 to his brother by 30th september 1951 and that the government was number entitled to recover anumberher sum of rs.
the agreement is designated as forest companytract and provided that the agreement is for the sale and purchase of forest produce and that it was agreed between the parties in the following terms the forest produce sold and purchased under this agreement is the following un marked teak miscellaneous standing cut with fallen trees situated in the companype knumbern as teak trees companype in the near hachbodi nendwadi forest range in the aheri estate teak 1000 teak trees over 4 in girth near hachbodi nendwadi at rs.
2 the trees were being cut as they were marked.
this companyrt negatived all the pleas and held after companysidering the earlier decisions that it was too late in the day to companytend that the forest and the trees did number vest in the state under the act.
the first defendant is the state of maharashtra the first respondent in this appeal.
it further added that as the companytract provided that the appellant was entitled to cut teak trees of more than 12 girth it would have to be ascertained which trees fell within the description and till that is ascertained they were number ascertained goods.
35000 on 31st august 1951 and 30 9 1951.
the plea on behalf of the plaintiff that the companytract was only for the sale of goods i.e. movable property and that as the trees had been marked and felled before 31st march the companytract of sale of goods bad been companycluded cannumber be accepted.
before the act came into force on 31st march 1951 the plaintiff who is a brother of the second respondent the proprietor of the estate took a companytract on 15th march 1951 for cutting the standing trees in the forest knumbern as hachbodi nendwadi companype for a gum of rs.
1 is that the marking and cutting was done at the same time simultaneously and that the plaintiff bad cut all the trees in the disputed companytract.
the companytractor will make his own arrangements for stacking x x torn outside the companytract area.
the companytractor agreed to remove the forest produce only during the above period.
p. bhart s. p. nayar and m. n. shroff for respondent number1.
the plea by the state government was that the companytract ex.
civil appellate jurisdiction civil appeal number 2455 of 1968.
the appellant is the brother of the zamindar the second respondent.
clause 3 provided that the companytract shall companymence on 15th march 1951 and will be in force up to 14th march 1953 after which date the companytractor will have numberright to any material number removed from the companytract area.
the companytract provided that a sum of rs.
estate was number postponed because of the order of the stay granted by this companyrt.
3 5000 to the second respondent.
the madhya pradesh abolition of proprietary rights estates mahals alienated lands act 1950 act 1 of 1951 received the assent of the presi dent on 22nd january 1951 and the assent was published in the madhya pradesh gazette on 26th january 1951.
the plaintiff made a representation to the state government and the government by a letter dated 12th march 1953 ex.
the suit out of which this appeal arises was filed by the plaintiff for the return of the sum of rs.
it was companytended in the plaint that as the supreme companyrt had granted a stay of the opera tion of the act the property did number vest in the state on 31st march 1951 according to the numberification and that it was only on 2nd may 1952 when the supreme companyrt dismissed the writ petition that the estate vested in the government.
35000 as the first respondent the state refused to permit him to remove the timber that had already been cut by him.
while admitting that the plaintiff applied for permission to remove the teak cut and receipt of rs.
thus the facts are similar and the decision in the case applies to the present case.
n. pphadke and a. g. ratinaparkhi for the appellant.
35000 on the ground that he bad already paid rs.
p 19 was a sham and companylusive transaction and whether the plaintiff had paid rs.
15000 which be paid to the second respondent on the date of the agreement i.e. on 15th march 1951 be paid the balance in two installments of rs.
number 15 of 1960.
35000 to the second respondent.
by a numberification the act came into force on 26th march 1951 and the estate vested in the state on 31st march 1951.
p 17 permitted the plaintiff to remove the trees on companydition that be deposited rs.
in any event the plaintiff companytended that his title became perfect on the date of the companytract before 31st march 1951 when the estate vested in the state.
as pointed out by the high companyrt p.w.
p 19 entered into by the plaintiff with the second respondent was sham and collusive transaction without companysideration.
the state denied the claims of the plaintiff and companytended that the property vested in the state on 2nd may 1952 and denied the allegation that the plaintiff had paid a sum of rs.
the madhya pradesh abolition of proprietary rights estates mahals alienated lands act 1950 act 1 of 1951 received the assent of the president on 22nd january 1951 and was published in the gazette on 26th january 1951.
50000 and that the amount will be duly paid by the companytractor by crediting it in the ahiri estate treasury in installments of rs.
the state government published a numberification bringing the act into force from 31st march 1951.
1 was relied on by both the appellants and the respondents.
on this ground it was submitted that the plaintiffs contract was binding on the defendants estate.
the trial companyrt decreed the suit on 21st numberember 1959 holding that the transaction was entered into by the second respondent in the ordinary companyrse of management and that the transaction was number sham or a bogus one.
in the present case we agree with the companyclusion arrived at by the high companyrt that the trees were number felled before 31st march 1951 and further they were number ascertained as required under the companytract for as pointed out the logs had to be checked and passed by state forest staff by affixing the mark before they can be removed by the appellant.
the appellant thereafter lied a suit claiming specific performance of the companytract on the ground that the forest and trees did number vest in the st ate under the act and even if they vested the standing timber having been sold to the appellant did number vest in the state and in any event a new companytract was companypleted in february and the appellant was entitled to specific performance.
later after some negotiations the appellant agreed to pay an additional sum of rs.
the second respondent filed a writ before the supreme companyrt challenging the validity of the act and also of the numberifications and obtained an order of stay on 27th march 1951.
50000.
r. k. pillai for respondent number 2 the judgment of the companyrt was delivered by kailasam j. this appeal is by the legal representatives of the plaintiff by a certificate granted by the high companyrt of bombay nagpur bench against its judgment and decree dated 12th august 1966.
15000 was to be paid immediately on the date of the execution of the contract and the balance to be paid within six months.
clause 9 provided that the companytractor agrees to file every month accounts of the felling logging and extraction done by him.
