IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 65 of 1999. Reserved on : 15.5.2009. Decided on : 5.6.2009. __________________________________________________ Shri Dina Nath. … Appellant. Versus Shri Roop Singh and another. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Harish Behal, Advocate. For the Respondents : Mr. G.R. Palsara, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Mandi in Civil Appeal No. 41 of 1995 dated 5.12.1998. Brief facts necessary for adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit for permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as the defendants for convenience sake). According to the plaintiff, he is owner in possession of the land comprised in Khewat Khatauni No. 47 min/85 min, Khasra No. 333, measuring 1-6-8 bighas situated in Mauja Arthi, Illaqua Balh, Tehsil 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 Sadar, District Mandi, H.P. along with other co-sharers. Defendant No.1 Shri Roop Singh without any right, title and interest trespassed into the land of the plaintiff and other co-sharers and removed three trees of “Bihul” and one tree of pear on 4.10.1992. The suit was contested by the defendants. The learned Sub Judge Ist Class, Mandi decreed the suit on 18.2.1995. The defendants preferred an appeal before the learned District Judge, Mandi. He accepted the appeal on 5.12.1998. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Mandi on 5.12.1998. This regular second appeal was admitted on the following substantial questions of law: 1. Whether decree of injunction can be passed against the plaintiff in a suit for permanent prohibitory injunction against the defendants? 2. Whether in view of clear admission by the defendants in their written statement regarding the ownership and possession of the plaintiff over the suit land, there is any impediment in law in granting a decree of permanent prohibitory injunction in favour of the plaintiff qua the suit land? 3. Whether in the facts and circumstances of the case the learned lower appellate court was right in law in not exercising the powers vested in it under Order 26 Rule 9 of CPC and whether the failure to exercise such powers is justified under the law? Mr. Harish Behal, Advocate has supported the judgment and decree passed by the learned trial Court. He then contended that in the suit filed by the plaintiff for permanent 3 prohibitory injunction, a decree for injunction could never be passed against the plaintiff. He then contended that the learned first appellate court has mis-construed oral as well as documentary evidence, more particularly Ext. PW-5/A. Mr. G.R. Palsara has supported the judgment and decree passed by the learned first appellate court. I have heard the learned counsel for the parties and perused the record carefully. Since the substantial questions of law are inter- connected, they have been taken up together to avoid repetition and discussion of evidence. The plaintiff has appeared as PW-1. He has deposed that his land is adjacent to the land of the defendants. His land is at higher level than the land of the defendants. According to him, the defendants had cut three trees of ‘Bihul’ and one tree of pear. He reported the matter to the Panchayat. The Panchayat had visited the spot on 5.10.1992. He also got the demarcation of the land conducted and prepared the spot map. PW-2 Shri Shiv Singh is a Member of the Panchayat. According to him, he had visited the spot along with Up-Pradhan and one Narinder Kumar. He found that the trees were cut on the spot. PW-3 Shri Het Ram, Patwari has brought the record and identified the signatures of Shri Tulsi Ram, Patwari on the Tatima. PW-4 Shri Narinder Kumar is also Member of the Panchayat. He has found three trees of “Bihul” and one tree of pear cut from the suit land. PW-5 Shri Mahinder Singh, Kanungo is a material witness. He has demarcated the land and prepared Tatima Ext. PW-5/A. He has deposed that branches of 4 the trees were found pruned on the spot which were hanging downwards i.e. towards Khasra No. 345. PW-6 Shri Ramesh Kumar has also deposed that there is a “Mend” between the fields of both the parties. He did not know about the ownership of the trees. DW-1 Shri Roop Singh has deposed that he did not interfere in the suit land nor he has cut the trees. He has admitted that his land is on the lower side of the land of the plaintiff. There is “Mend” between the land of the parties. He had been pruning the trees which were below the land of the plaintiff. In his cross-examination, he has admitted that branches of these trees were over-hanging towards his field. He was not present at the time of demarcation. In other words, he has also admitted that the fields of the plaintiff were on the upper side and trees were on the “Mend” and branches were hanging over his field. DW-2 Shri Nag Singh has admitted that the land of the plaintiff is on the upper side and land of defendants is on the lower side. The plaintiff along with other co- sharers as per copy of Jamabandi for the year 1990-1991 Ext. PA have been shown owner in possession of Khasra No. 333. Ext. PW-5/A is the Tatima prepared by the Patwari and checked by the Kanungo. Ext. DX is the copy of Musabi. The learned trial court on the basis of oral and documentary evidence has decreed the suit. However, the learned first appellate court has reversed the judgment and decree passed by the learned trial court. The judgment passed by the learned trial court is reasoned and self contained. The learned Sub Judge has taken into consideration the entire oral and documentary evidence while decreeing the suit. The learned District Judge has not taken into consideration the oral and 5 documentary evidence led by the parties. It has come in the evidence that the land of the plaintiff is on the higher level. It has also been proved that the trees were on the land of the plaintiff and the branches were over hanging on the land of the defendants. PW-5/A is copy of Tatima. PW-5 has carried out the demarcation of Khasra No. 333. The trial Court after examining Tatima Ext. PW- 5/A and copy of Musabi Ext. DX has come to the right conclusion that the width of Khasra No. 333 is 22 ‘Karam’ and not 18 ‘Karam’. The learned first appellate court has wholly misconstrued Ext. PW- 5/A. PW-1 has testified that his land is situated on the higher side and there is “Mend” between his land and land of the defendants. PW-2 Shri Shiv Singh has also deposed that the trees were at a hight of 2’-2 ½’ and these trees were on the land of plaintiff. PW-4 Shri Narinder Kumar has also testified that the trees were on the higher level at the height of 2’-2 ½’ from the fields which were below the trees. Even DW-1 Shri Roop singh had admitted that his land is at the lower level. DW-2 Shri Nag Singh has also admitted that the land of the plaintiff is on the upper side and land of the defendants is on the lower side. In view of the overwhelming evidence, the only conclusion which can be safely drawn is that the trees were located on the land of the plaintiff. The contrary findings recorded by the learned first appellate court are liable to be interfered. The learned first appellate court has also erred in law by restraining the plaintiff to cut the trees till the dispute was decided by the competent authority. This issue was required to be decided by the learned first appellate court itself. The Kanungo has proved Tatima Ext. PW-5/A. In these circumstances, 6 the plaintiff who has filed the suit for permanent prohibitory injunction could not be restrained by the learned first appellate court from cutting the trees. There was tangible evidence, as discussed hereinabove, to prove that the trees were situated on the land of the plaintiff still the learned District Judge has come to the conclusion that something more was required to be proved by the plaintiff. The other option which was open to him was to appoint a Local Commissioner, which he had failed to exercise. Accordingly, in view of the observations made hereinabove, this regular second appeal is allowed. The judgment and decree passed by the learned first appellate court dated 5.12.1998 is set aside. The judgment and decree passed by the learned trial court on 18.2.1995 is restored. No costs. (Rajiv Sharma), J. June 5, 2009. (cr)