Punjab-Haryana High Court
State Of Haryana Through Collector vs Mangat Ram on 18 January, 2012
Author: K.C.Puri
Bench: K.C. Puri
RSA No. 476 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 476 of 2010
Date of decision 18.01.2012.
State of Haryana through Collector, Yamuna Nagar, and others
...... Appellants.
versus
Mangat Ram
...... Respondent.
CORAM: HONBLE MR. JUSTICE K.C. PURI
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? Present: Shri Amit Kumar, DAG, Haryana for for the appellants.
Shri Ravindra Jain, Advocate for the respondent.
K.C.PURI. J.
State of Haryana through Collector, Yamuna Nagar, defendants/appellants have directed the present regular second appeal RSA No. 476 of 2010 2 against the judgment and decree dated 24.7.2009 passed by Shri Jagdeep Jain, learned Additional District Judge, Yamuna Nagar at Jagadhri vide which the appeal preferred by the plaintiff against the judgment and decree dated 9.9.2008 passed by Civil Judge ( Junior Division ), Jagadhri dismissing the suit of the plaintiff was set aside and decreed the suit of the plaintiff.
2. The facts of the present case are that the plaintiff alleges that he is in actual, physical and cultivating possession as a co-sharer, in the land bearing khasra No. 15//12 and planted trees in the above said land which are standing at the spot and are owned and possessed by him. The defendants started threatening to cut and remove the above said trees of the plaintiff from his land illegally and forcibly without any right with the allegations that the trees are standing in the land of Forest Department. The demarcation of the land, which was conducted through commission in case No. 173/demarcation decided by A.C.IInd Grade, Jagadhri vide order dated 12.7.2004, the trees in question were found in his above said land. Thereafter, the plaintiff filed a civil suit titled Mangat Ram Vs. DFO with respect to the suit land on 27.7.2004 in the court of Shri Atul Marya, Civil Judge, (Jr. Division), which was withdrawn by him on 28.7.2004 on the grounds of technical defect with the permission to file fresh suit. It is further averred that thereafter the plaintiff served a registered AD notice under Section 80 CPC upon the defendants over which they became annoyed and threatened to cut and remove the trees of the plaintiff from the above said land. Hence the suit.
RSA No. 476 of 2010 3
3. Notice of the said suit was given to the defendants, who in their reply took a preliminary objection that the second suit filed by the plaintiff regarding the same matter is not tenable. The plaintiff is neither the owner nor in possession of the trees in question and he wants to grab the trees in question under the garb of present suit. It is further averred that the plaintiff never raised any objection at the time of acquisition of land for construction of road known as Pabni to Shekhpura and even at the time of plantation of threes in question by the forest department, which were planted by them 20 years ago and thereafter looked after and nourished by them. The defendants have placed on the file the Government record comprised in enumeration Register vide enumeration No. 66 to 73. It is alleged by the defendants that they are the owners in possession of the trees as well as the land underneath the same, but as the intention of the plaintiff has become dishonest, he has filed this frivolous suit and the same is not legally maintainable. It is further averred that the area in which the trees in question are standing has been declared as protected forest by the Haryana Government and the same are with in the road limits in the Government land and not in the land of the plaintiff.
4. It is further averred that a fresh demarcation of the land should be conducted. The plaintiff served a notice under Section 80 CPC upon the defendant on 2.8.2004 but he did not wait for the reply of the same and has filed the present suit. It is further averred that the land has been acquired by the Land Acquisition Collector for the link road and he has not been impleaded as a party to the suit, therefore, the suit of the plaintiff is liable to be dismissed for not impleading the necessary party. It is, asserted that even RSA No. 476 of 2010 4 otherwise, the Hon'ble Supreme Court of India in Civil Writ No.202 of 1995 vide judgment dated 12.12.1996 has defined forest land as any area, which has been recorded as forest in the Government record irrespective of ownership or classification thereof, is diverted for non forestry purpose, prior approval of the Government would be required under the provisions of Forest Conservation Act, 1980. Even if it is found that the trees are standing on the land of the plaintiff, even then the plaintiff is barred from felling the trees without prior approval of the Government under the provisions of Forest Conservation Act, 1980.
5. It is further averred that the suit of the plaintiff has not been properly valued and is liable to be dismissed with special costs. On merits, it is alleged by the defendant that the forest department had planted the trees about 20 years ago with in the road limits known as Pabni to Shakhupura road in the government land and the same were nourished by the forest department. It is also alleged that the trees in question are owned and possessed by the defendants and the record of the same is maintained by the forest department. It is asserted that as the defendants are owners in possession of the suit land, hence there is no question of their threatening the plaintiff as alleged by him. Need for fresh demarcation in the presence of forest kanungo, Halqa Patwari has been reasserted. Rest of the averments have been specifically denied and a prayer for dismissal of the present suit on the ground of not legally maintainable has been made.
6. From the pleadings of the parties, following issues were framed:-
1. Whether the plaintiff is entitled for a decree for RSA No. 476 of 2010 5 permanent injunction in respect of the property fully detailed and described in the heading of the plaint?OPP
2. Whether the suit of the plaintiff is not maintainable?OPD
3. Whether plaintiff has no locus standi to file the present suit?OPD
4. Whether the plaintiff is legally estopped from filing the present suit?OPD
5. Whether the plaintiff has not come to the court with clean hands as alleged?OPD
6. Relief;
7. The parties have led their respective evidence on the aforesaid issues. In the light of the same, the trial Court after hearing the learned counsel for the parties dismissed the suit of the plaintiff vide judgment and decree dated 9.9.2008.
8. Feeling dissatisfied with the aforesaid judgment and decree dated 9.9.2008, the plaintiff preferred first appeal before First Appellate Court. The First Appellate Court, after hearing the learned counsel for the parties, accepted the appeal of the plaintiff and decreed the suit vide judgment and decree dated 24.7.2009.
9. Feeling dissatisfied with the judgment and decree dated 24.7.2009, the State of Haryana and others have directed the present regular second appeal.
10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
11. The appellants in paragraph No.7 of the grounds of appeal have mentioned that following substantial question of law have arisen :- RSA No. 476 of 2010 6
1. Whether the findings of learned Additional District Judge, Yamuna Nagar in respect of issue No.1 whereby the findings of learned Civil Judge (Jr. Divn.) Yamuna Nagar in respect of issue No.1 have been reversed are legal and sustainable?
2. Whether the appellants can be divested of the ownership of the trees in question which are standing on the area already declared Protected Forest by the Haryana Government?
3. Whether the appellants can be divested of the ownership of the trees in question when sufficient evidence have been adduced to show that the trees in question have been planted and nourished by the appellants-State?
12. The dispute in the present lis resolved around the trees situated in the suit land. The plaintiff want injunction against the defendants from interferring in the cutting of those trees alleging that he has sown the trees.
The trial Court, after appraisal of the evidence, keeping in view the demarcation report reached to the conclusion that seven trees were standing in the suit land. There is categoric finding by the trial Court that these trees have been sown by the defendants/appellants and plaintiff has no concern with that land. The plaintiff has simply made his bald statement and has not produced any supporting evidence to prove that trees have been planted by him. The plaintiff has placed reliance on demarcation report Ex.P-2 and in that report it has been categorically mentioned that trees have been planted by the defendants. The plaintiff has simply filed a suit for permanent injunction. The trial Court has given finding that trees are standing in the land abutting the road, which is not the land of the plaintiff. The First Appellate Court has committed illegality by reversing the judgment and decree of the trial Court without setting aside the finding that trees have RSA No. 476 of 2010 7 been sown by the defendants/appellants. Even assuming that trees are standing in the land of the plaintiff, in that case plaintiff can succeed only if he is able to prove that the trees have been planted by him. He could have produced the evidence that he purchased the baby plants and thereafter sown the same but there is no such evidence. In demarcation report Ex.D-2, coupled with the other evidence proved the fact that trees have been planted by the defendants. So, in these circumstances, the First Appellate Court has committed illegality by reversing the judgment. The plaintiff could succeed only if he is able to prove that he had sown the trees. Even the First Appellate Court has not given the findings that the plaintiff has sown the trees.
13. From the perusal of the demarcation report, it is revealed that only seven trees are standing in the suit property and as per this report, the defendants have sown 39 trees. So, in these circumstances, the plaintiff pleaded that he has sown the trees in the khasra number which is not the subject matter of the suit. So, I have no hesitation in holding that the judgment and decree of the First Appellate Court is the result of misreading and misinterpreting the evidence on the file including the demarcation report Ex.D-2.
14. Consequently, the above said substantial questions of law stand answered in favour of the appellants. The appeal stands accepted and the judgment and decree passed by the First Appellate Court stands set aside and the suit of the plaintiff stands dismissed. In the peculiar circumstances of the case, the parties are left to bear their own costs. RSA No. 476 of 2010 8
15. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI )
JUDGE
January 18, 2012
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