RSA No. 2509 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2509 of 2011 (O&M) Date of decision 27.7.2011. Ram Sarup ...... Appellant. versus Soni and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Ravinder Malik, Advocate for the appellant. K.C.PURI . J. Challenge by the defendants in this regular second appeal is against the judgment and decree dated 21.4.2011 passed by Shri Vikram Aggarwal, Additional District Judge at Jagadhari vide which the appeal preferred by the defendant/appellant against the judgment and decree dated 23.9.2008 passed by Ms.Poonam Suneja, Additional Civil Judge (Senior Division) Jagadhari was dismissed. RSA No. 2509 of 2011 2 2. The case of the plaintiff in brief is that he is owner of the suit property as detailed in the head note of the plaint and 30 -35 eucalyptus trees were standing which were planted and nourished by him and the defendant had no right, title or concern with them. The defendant started threatening to cut and remove the trees from the land in dispute. Hence the suit. 3. On put to notice, defendants filed written statement and took up certain preliminary objections regarding maintainability, locus standi, estopped by his own act and conduct and the plaintiff has not come to the court with clean hands and also the suit is false and frivolous have been raised. 4. On merits, defendants denied all the averments and prayed for dismissal of the suit. 5. No replication was filed. From the pleadings of the parties, following issues were framed :- 1. Whether plaintiff is owner in possession of the suit property, as alleged ?OPP 2. Whether suit is not maintainable ?OPD 3. Whether plaintiff has no locus standi to file the present suit ?OPD 4. Whether plaintiff has no cause of action to file the present suit ?OPD 5. Relief. 6. The parties have led their respective evidence in support of aforesaid issues. The learned trial Court after appraisal of the evidence and after hearing the learned counsel for the parties decreed the suit of the RSA No. 2509 of 2011 3 plaintiff and held that he is owner in possession of the suit land and is entitled to cut and remove the trees vide judgment and decree dated 23.9.2008. 11. Feeling dissatisfied with the above said judgment and decree dated 23.9.2008, the defendant preferred the First Appeal which was decided by Shri Vikram Aggarwal, Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 21.4.2011. 12. Feeling dissatisfied with the aforesaid judgments and decrees, passed by the Courts below, the present regular second appeal has been filed by the appellants. 13. The defendants/appellants in paragraph No.1 of the grounds of appeal have mentioned that following substantial question of law have arisen :- i) Whether a decree for permanent injunction can be passed in favour of the plaintiff without having the possession of the land in dispute ? ii) Whether the suit filed by the minor through his mother as natural guardian is maintainable when father of the minor/plaintiff is alive ? Iii) Whether the suit filed by the minor through his mother, though father being alive, is violation of Section 6 of Hindu Minority & Guardianship Act, 1956 and hence is not maintainable ? iv) Whether the findings of the courts below without referring to the evidence of the appellant amounts to misreading of Evidence and has caused injustice to the appellant ? v) Whether the appellant being in possession of the suit land is entitled to cut and remove the trees and whether the trees i.e. Eucalyptus and popular trees fall in the category of agricultural produce as per the Punjab Agricultural Produce Markets Act, 1961 ? RSA No. 2509 of 2011 4 vi) Whether the courts can grant the decree of permanent injunction in favour of the plaintiff without proof of possession on the part of the plaintiff ? 14. Learned counsel for the appellant has forcefully contended that the defendant/appellant is in possession of the suit property. No injunction can be issued against the person who is in possession of the suit property. To support this contention he has relied upon authority Ghulam Rasool and another v. State of J and K and another AIR 1983 Supreme Court 1188. Counsel for the defendant/appellant has further contended that father of the plaintiff is alive and on that account suit cannot be filed by the mother. It is further contended that both the Courts below have misread and misinterpreted the evidence. The claim in substantial questions raised is that the eucalyptus and popular trees are the product of agriculture land and as such no injunction can be issued against the defendant/appellant. 15. The argument advanced by the counsel for the appellant looks attractive but is without any legal force. 16. The plaintiff has sought injunction only against cutting of eucalyptus and popular trees standing in the suit property on the ground that he is the owner of the suit property. The tree goes with the owner of the suit property. During the course of arguments counsel for the appellant has submitted that defendant is in possession of the suit property as tenant, so, no injunction can be issued. The tenant cannot become the owners of the trees. The defendant/appellants have failed before both the Courts below to prove that trees have been planted by him. So far as the authority Ghulam Rasool and another's case (supra) is concerned that is RSA No. 2509 of 2011 5 distinguishable to the facts of the present case as the same relates to the possession of the land and not the trees standing in the land. Owner has the right to restrain the tenant from cutting the trees. Though in the present case plaintiff has disputed about the possession of defendant over the suit property but even assuming that defendant/appellant is in possession of the suit property in that case also he has no right to chop off the trees standing in the land which is owned by the plaintiff. 17. Both the Courts below have rightly held that minor can file the suit through mother and there is no impediment for filing the suit on behalf of the minor. Even the Court can appoint the stranger as guardian to protect the rights of the minor. 18. So the substantial questions of law raised above stand determined against the appellant. 19. In view of the above discussion, the appeal is without any merit and the same stands dismissed. 20. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 27, 2011 sv