1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 310 of 1998. Judgment reserved on: 20.3.2009 Date of decision: 26.3.2009. Dulla Ram ……….Appellant Vs. State of H.P. & Ors. ……Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. O.P. Sharma, Sr. Advocate with Mr. Tapan Chauhan, Advocate. For the Respondents : Mr. Anshul Bansal, Addl. Advocate General. Kuldip Singh, Judge. The appellant was plaintiff and has filed the second appeal against judgment, decree dated 4.8.1997 passed by learned District Judge, Shimla in Civil Appeal No.56-S/13 of 1994, affirming judgment, decree dated 22.1.1994 passed by learned Senior Sub Judge, Shimla in Case No.316-1 of 91/90. 2. The facts, in brief, are that in an open auction appellant had purchased standing trees bearing lot No.14/81-82 in Shilla forest of Chopal in the year 1979-80 for Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 Rs.2,15,000/-, the work of felling and conversion of the trees into timber was to be completed within two years, which was completed by the appellant within the stipulated period. The royalty amount was to be paid in instalments and timber was to be exported in instalments proportionately to the amount of instalments of royalty paid. The appellant had extracted 21000 scants of timber and carried them to Pulbahal by khad floating. The appellant was permitted to export 14000 scants and remaining timber was remained at Pulbahal. The respondent No.3 without notice to appellant auctioned balance 7000 scants to M/s. Rai Singh Narain Singh for some unknown amount. The appellant was never informed the reasons for the aforesaid unauthorized act nor the amount money fetched by auctioning 7000 scants was disclosed to the appellant. 3. The respondent No.3 approached respondent No.4 for recovering Rs.80,397.73 from appellant on account of arrears of land revenue. The appellant had paid the amount of royalty in instalments. In addition, the appellant had paid Rs.20,000/- in cash as security. The respondent No.3 had retained the price/amount of 7000 scants sold to M/s. Rai Singh Narain Singh. Thus, no amount could have been due from appellant to respondent No.3 on account of royalty money. The respondent No.4 had started proceedings against appellant for recovery of Rs.80,397,73 and therefore, the appellant had filed the suit against respondents No.1 to 3 for rendition of accounts as well as 3 restraining respondent No.3, to approach respondent No.4 for recovering Rs.80,397.73 as arrears of land revenue. 4. The respondents No.1 to 4 had filed a common written statement, in which preliminary objections of maintainability, estoppel and cause of action were taken, On merits, it was admitted that appellant had been sold lot No.14/80-81, but it was denied that the work of lot was to be completed within two years. On the contrary, it was alleged that the work was to be completed upto 31.3.1980. It was alleged that out of 865 trees, which were to yield 1417.45 cubic meter timber approximately, 16 trees of Rai and Fir had not been felled by the plaintiff. The appellant had prepared a list of 21078 scants for launching but actually he launched only 13081 scants, in addition to that he carried some scants to Pulbahal by engaging labour. The appellant had exported all those scants against permit issued in his favour. The appellant did not pay money due from him on account of royalty, tax and damage bill etc., a notice was issued to him informing him that his timber lying on the spot and unfelled trees of the lot would be confiscated and auctioned and the sale proceeds would be appropriated and adjusted towards his liability. The appellant himself did not guard his timber at Pulbahal and for that reason some of his timber might have been lost. The export permits were issued in favour of the appellant in respect of 15907 scants. The details of liability and payments of appellant have been mentioned by learned District Judge in para-3 of the impugned judgment. According to respondents No.1 to 4, a sum 4 of Rs.80,397.73 was due from appellant and accordingly notice was issued to the appellant. The learned trial Court had framed the following issues:- 1. Whether plaintiff is entitled to rendition of accounts? …OPP 2. Whether suit is not maintainable? …OPD. 3. Whether plaintiff is estopped to file the present suit as alleged? …. OPD 4. Whether plaintiff has no cause of action? …. OPD 10. Relief. The issues No.1,3 and 4 were answered in negative and issue No.2 in affirmative. The suit of the appellant was dismissed by learned trial Court on 22.1.1994. The appeal filed by the appellant against the decision dated 22.1.1994 was dismissed by learned District Judge on 4.8.1997, hence this appeal which has been admitted on the following substantial questions of law:- 1. That whether in the circumstances of the case the judgment and decree of the lower courts deserves to be set aside and the suit of the plaintiff be decreed? 2. Whether the appellate court has misread and misinterpreted the evidence on? 3. Whether document Ex.P-2 has been misconstrued? 4. Whether the judgment and decree below are based on extraneous considerations not on record? 5. I have heard Mr. O.P. Sharma, learned Senior Advocate on behalf of the appellant and Mr. Anshul Bansal, learned Addl. Advocate 5 General, on behalf of the State and have also gone through the record. Mr. O.P. Sharma, has submitted that the two Courts below have misconstrued and misinterpreted the evidence on record and more particularly Ex.P-2. The respondents No.1 to 3 are liable to render the accounts to the appellant of the lot No.14/80-81. He has submitted that the appellant had paid the whole royalty amount etc. of the lot in question and nothing was payable by appellant to respondents No.1 to 3. The learned counsel for the respondents has supported the impugned judgment, decree and submitted that the two Courts below have recorded a concurrent finding of fact against the appellant and in these circumstances, a prayer has been made for dismissal of the appeal. Substantial questions of law No.1 to 4 6. The substantial questions of law No.1 to 4 are interconnected, therefore, all of them are being taken up together for disposal. In launch list Ex.P-2, total number of 21078 scants have been mentioned. The respondents No1 to 4 have taken the stand that no doubt appellant had prepared a list of 21078 scants but he actually launched 13081 scants. The appellant carried some scants by engaging labour and stacked the scants at Pulbahal. The appellant in his plaint has not pleaded how much scants after preparation of launching list Ex.P-2 he actually launched, therefore, it cannot be said that the appellant in fact had launched 21078 scants in khad and collected same number of scants at Pulbahal. The respondents No.1 to 4 have taken the stand that the appellant had floated timber in the khad and collected 13081 scants which were stacked at Pulbahal. In addition, the appellant had carried some timber through manual labour of the lot to Pulbahal depot. 6 7. The respondents No. 1 to 3 had issued export permits Ex.D-2 to Ex.D-8 in favour of appellant for exporting 15907 scants. It is not the case of appellant that under the agreement Ex.D-1 in default of payment of royalty amount etc. the respondents No.1 to 3 could not seize the timber and left over standing tress. The appellant failed to clear the outstanding dues of the forest department and therefore, 1416 scants of appellant of different pieces and sizes were seized by forest department at Pulbahal depot. It was for the appellant to take care of his scants in as much as the lot was sold to the appellant as per terms and conditions mentioned in agreement Ex.D-1. There is nothing on record to show that 21078 scants in fact were taken into possession by respondents No.1 to 3. On the contrary the stand of respondents No.1 to 3 that when the appellant failed to clear outstanding dues of forest department then 1416 scants of different species of appellant were taken into possession in terms of the agreement. The forest department auctioned 1416 scants and after adjusting the amount received through auction demanded the balance amount due to forest department from appellant and to this effect even issued notice Ex.D-9 and Ex.D-10. The appellant even before the auction was informed that an amount of Rs.1,36,518.74 was due from the appellant. The amount received after auctioning the timber was adjusted towards the due amount which was payable by appellant and the balance amount was demanded from the appellant. The appellant has failed to pay the balance amount to appellants No.1 to 3 therefore the respondents No.1 to 3 ultimately submitted Ex.D-11 and requested the Collector, Shimla to recover Rs.80,397.73 from appellant as arrears of land revenue. 7 In Ex.D-11 account position of appellant has been given as follows:- Royalty Sales tax Sale value 2,15,000-00 59,125.00 D/Bill 58,172.50 9,491.65 Ropeway 31,791.56 8,742.68 Supp.markings 11,024.84 3,031,83 Interest 52,818.38 9,203.18 Total: 3,68,807.28 98,982.76 Payments made Including 3,06,942.31 80,450.00 Security, resale ___________ __________ Balance 61,864.97 18,532.76 ___________ __________ Grand total: 80,397.73 It is not the case of appellant that aforesaid statement of account is wrong. The learned counsel for the appellant has failed to point out misconstruction and misinterpretation of the evidence. It is not the case of the appellant that some bugling was done by respondents No.1 to 3 during auction or price fetched in the auction was not actually adjusted from the due amount or some unauthorized amounts were claimed by respondents No.1 to 3. The appellant has not proved what amounts he had paid to respondents No.1 to 3 on account of royalty etc. as per agreement Ex.D-1. It has not been specifically pointed out what material evidence has not been considered by the two Courts below. The appellant has failed to establish that on the basis of material on record the respondents No.1 to 3 were liable to account for as claimed by appellant. The two Courts below have concurrently recorded a finding of fact against the appellant, in second appeal the evidence cannot be re- appreciated. The substantial questions of law 1 to 4 are accordingly decided against the appellant. 8. No other point was urged. 8 9. The result of the above discussion, the appeal fails and is accordingly dismissed. No order as to costs. ( Kuldip Singh) Judge March 26 ,2009 (sks)