1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 198/2008 (Bhupendrashingh Saluja VERSUS Chief Conservator of Forest & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri S.P. Palshikar, counsel for the appellant. Shri S.R. Deshpande, counsel for the R-1 to 3. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 20, 2008. Heard the learned counsel for the parties. The appellant is the original plaintiff and is a forest contractor. The plaintiff's servants wrongly felled 76 trees from Khasra No.34 belonging to State. The felling of these 76 trees was declared illegal and the defendant nos.1 to 3/present respondents assessed the royalty in respect of the illegal felling of trees. It is the case of the plaintiff that the plaintiff paid an amount of Rs.4419/- towards royalty. It is the case of the plaintiff that since the act of illegal felling of trees was regularised in view of the plaintiff paying the royalty, the plaintiff was entitled to the amount which the defendant nos.1 to 3 received by sale of the logs/parts of tree which were sold in the public auction on 05.10.1981. The plaintiff, 2 therefore, filed a suit for recovery of amount of Rs.33,548/- with interest thereon. The claim of the plaintiff was denied by the defendant nos.1 to 3. It was also denied that the plaintiff paid the royalty and the act of illegal felling of trees was regularised. The defendants pleaded that the Government was not served with a notice as is required under Section 80 of the Code of Civil Procedure and hence, the suit was liable to be dismissed. It was further pleaded that it was necessary to join the Government as a necessary party in view of the provisions of Order XXVII Rule 5A of the Code of Civil Procedure and since the Government was not joined as a party defendant, the suit was bad for non-joinder of the necessary parties. The trial Court, by the judgment dated 20.10.1994, decreed the suit of the plaintiff and directed the defendants to pay an amount of Rs.94,027/- to the plaintiff. In an appeal filed by the defendants, the judgment passed by the trial Court was set aside. The first appellate Court held that the notice issued by the plaintiff to defendant nos.1 to 3 was not legal and proper and in conformity with the provisions of Section 80 of the Code of Civil Procedure. The Court further held that the 3 suit was barred by limitation and was also bad for non-joinder of necessary parties. I have perused the judgments passed by the trial and the appellate Court and considered the submissions made on behalf of the parties. It is not in dispute that the notice under Section 80 of the Code of Civil Procedure was not issued to the Government but, was issued to the Chief Conservator of Forest only. Similarly, though the State was a necessary party to the suit in view of the provisions of Order XXVII Rule 5A of the Code of Civil Procedure, the Government was a necessary party but, the plaintiff had failed to join the Government through any of its Officers as a party defendant to the suit. It was rightly held by the appellate Court that the notice issued under Section 80 of the Code of Civil Procedure was not legal and proper and the suit was also bad for non-joinder of necessary parties. In the instant case, the plaintiff had pleaded that the royalty amount was deposited by the plaintiff on 13.05.1982 and the act of illegal felling of trees was regularised. The suit was, however, filed in the year 1992. According to the first appellate Court, the plaintiff ought to have filed the suit within three years from 13.05.1982 when according to the plaintiff, the act of illegal 4 felling of trees was regularised in view of deposit of royalty amount. No fault can be found with the finding recorded by the first appellate Court that the plaintiff's suit was barred by limitation. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE