Research › Browse › Judgment

Kerala High Court · body

1949 DIGILAW 27 (KER)

Sirkar v. Madi Pillay Chempaka Pillay

1949-10-10

P.I.SIMON, S.GOVINDA MENON

body1949
JUDGMENT : S. GOVINDA MENON, J. 1. This appeal is against the judgment and decree of the District Judge of Nagercoil dated 19th Karkitakam 1117. Plaintiff in the court below is the appellant before us. The suit giving rise to this appeal was filed by the appellant, the Travancore Sirkar, to recover from the estate of the deceased first defendant in the suit. One Perumal Pillai Bhagavathi Pillai, an amount of 432 rupees 11 chuckrams and 3 cash alleged to have been wrongly paid to him in certain land acquisition proceedings and interest thereon. The learned Judge of the court below holding “that plaintiff had not pleaded or made out any ground for legal remedy and ...................that plaintiff was not entitled to recover the amount, dismissed the suit. Hence this appeal. 2. It is necessary to state here how the alleged mistaken payment came to be made by the Sirkar. One Vallinayagam Ponnambalam who was the uncle of the deceased first defendant Bhagavathi Pillai was the owner and pattadar of Sy. Nos. 2504 and 2402 of Vadiveeswaram Pakuthi. These two survey numbers lying together and measuring 1 acre and 43 cents in extent, were usufructuarily mortgaged by Ponnambalam in favour of one Venkitasubha Iyen Narayana Iyen of Puthenchanthai, Trivandrum. The mortgagee was also put in possession of the mortgaged properties. Some time after the execution of the said mortgage the pattadar Ponnambalam died leaving Bhagavathi Pillay as his heir. In the year 1101 a portion of Sy. No. 2504 measuring 23½ cents was acquired by Sirkar for the construction of a tank. In L.A. Case No. 1/1101 on the file of the Diwan Peishkar of Trivandrum the Land Acquisition Officer by his award, Ext. B, dated 27.3.1101 fixed the compensation payable on account of the acquisition as Rs. 376 plus 15 per cent thereon and directed payment of the same to the deceased Bhagavathi Pillai as the jenmi of the property, rejecting the claim put forward by Narayana Iyen for payment of the compensation amount to him as the mortgagee of the acquired site. After the passing of that award the deceased first defendant Bhagavathi Pillai received payment from Sirkar on 9.5.1101 of an amount Rs. 492-11-3 on account of the compensation allowed to him under the award. After the passing of that award the deceased first defendant Bhagavathi Pillai received payment from Sirkar on 9.5.1101 of an amount Rs. 492-11-3 on account of the compensation allowed to him under the award. Subsequent to the disbursement of the compensation money Narayana Iyen who had claimed enhanced compensation and also payment to him of the compensation amount moved the Land Acquisition Officer by a petition dated 22nd Makaram 1101 to make a reference to the District Court. Consequently there was a reference to court and that reference was duly registered in the District Court of Nagercoil as Land Acquisition Reference No. 1 of 1102. The District Judge by his judgment and decree dated 30th Adi 1102 (vide Exts. C and D) allowed the claim for enhanced compensation and also upheld the right of Narayana Iyen to receive the entire compensation amount. Under the decree Sirkar became liable to pay the mortgagee Narayana Iyen the amount already paid over to the first defendant as well as the excess compensation awarded. The entire amount payable under the decree in L.A.R. No. 1/1102 was subsequently realised by Narayana Iyen from Sirkar. Thereafter the suit giving rise to this appeal, O.S. No. 81 of 1111 on the file of the District Judge of Nagercoil, was filed by Sirkar claiming a refund of the amount paid to the first defendant on 9.5.1101. 3. The question arising for consideration in this appeal is whether the compensation amount drawn by the first defendant in pursuance of the award of the Land Acquisition Officer in L.A. No. 1/1101 could be deemed to be an amount paid to him by the appellant Sirkar under a mistake and that is the only question argued before us by the learned Government Pleader who appeared on behalf of the Sirkar. 4. It may at the very outset be mentioned that on a reference to the plaint it is not seen that the plaintiff had a case that the payment of the compensation to the first defendant was under a mistake. The definite allegation made in paragraph 8 of the plaint is to the effect that the amount was drawn by the first defendant illegally. In paragraph 9 it is further alleged that the plaintiff was damnified by the illegal withdrawal of the amount and is therefore, entitled to recover back the amount with interest. The definite allegation made in paragraph 8 of the plaint is to the effect that the amount was drawn by the first defendant illegally. In paragraph 9 it is further alleged that the plaintiff was damnified by the illegal withdrawal of the amount and is therefore, entitled to recover back the amount with interest. There is no averment anywhere in the pleadings that the payment was made under a mistake. The compensation amount was received by the first defendant under a valid and enforceable award made in his favour by the Land Acquisition Officer. Government submitted to that award without claiming a reference by the Land Acquisition Officer to the civil court for decision on the question as to who was entitled to receive payment of the compensation amount, the heir of the pattadar as the jenmi of the property or the mortgagee thereof, and coolly disbursed the amount to the former. The first defendant was legally entitled to draw the amount allowed to him by the award and he could not be said to have committed any wrong in receiving payment. 5. Having regard to the circumstances under which the payment in question came to be made and received it is not also possible to conceive of it as one made under a mistake. No doubt, if the payment was under a mistake of fact an action of refund would in law be sustainable. That payments wrongly made under a mistake can in certain cases be recovered is an undoubted proposition. The law on the subject of mistaken payments has been discussed in several reported cases. (Vide Sirkar v. Krishna Iyer, 31 T.L.J. 210, Godasankara Valia Raja v. Thachudaya Kaimal, 15 Cochin 31 and The Tata Oil Mills Company Ltd. v. The Diwan of Cochin, 19 Cochin 99. Reference may here be made to the following observations of Ramakrishna Iyer, J. occurring in Sirkar v. Krishna Iyer, 31 T.L.J. 210:- “A distinction has always been sought to be made between a mistake of fact and a mistake of law. While the proposition that money paid under a mistake of fact can be recovered is accepted, any claim made upon a payment made under a mistake as to the rights of the parties has been considered a good ground enabling the plaintiff to recover. While the proposition that money paid under a mistake of fact can be recovered is accepted, any claim made upon a payment made under a mistake as to the rights of the parties has been considered a good ground enabling the plaintiff to recover. Payment made in circumstances which show that both the parties to the transaction had full knowledge of the material facts is not recoverable.” We are quite clear upon the facts of this case that the disbursement made by Sirkar to the first defendant of the compensation awarded by the Land Acquisition Officer could not be held to be one made under any mistake. The plaintiff is, therefore, clearly not entitled to maintain this action for refund. 6. The appeal, therefore, fails and will stand dismissed with costs.