IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.3270 of 2005 Date of Decision: 22.5.2009 The State of Haryana and others. ....... Appellants through Shri Deepak Jindal, Assistant Advocate General, Haryana. Versus Raj Singh. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgment and decree dated 22.1.2005 passed by the District Judge, Jind (hereinafter described as `the First Appellate Court') whereby the appeal of the plaintiff- respondent was accepted, his suit was decreed and the judgment and decree dated 4.8.2004 of the Additional Civil Judge (Senior Division), Safidon (referred to hereinafter as `the trial Court') were set aside. The respondent brought a suit for declaration to the effect that he is owner in possession of the suit property as well as the trees which are standing on it to the extent of ½ share being a co-sharer thereof. He also prayed for an injunction seeking to restrain the defendants-appellants from cutting the said trees. It was pleaded by the respondent that he was in possession of R.S.A.No.3270 of 2005 -2- .... the suit property for the last seventy years and the trees standing thereon were planted by him. It was further pleaded that the suit property is adjacent to the Nai-Nala Drain of the State Government and that some trees are standing thereon as well as on the common Dol/ killa line. It was averred that previously the government officials in the absence of the respondent had started marking the trees standing on the land of the respondent; that he made several representations to the appellants to release trees from their ownership; that on such representations, demarcation dated 8.6.1994 was made; a representation was also submitted by appellant no.2 to the Tehsildar, Safidon for demarcation of the land vide letter dated 12.4.2001; that the demarcation was done by the Kanungo in the presence of the officials of the appellants, but despite the demarcation, the appellants did not settle the dispute and did not release the trees from their forest record and that since the appellants have not desisted from their activities while claiming ownership of the trees, he was constrained to institute the suit. Upon notice, the appellants appeared and filed their joint written statement contesting the suit. It was pleaded that the land in dispute was the property of the Forest Department which is reflected in the notification dated 11.10.1974. It was further pleaded that as per the said notification, Joshi Drain has been declared as protected forests and the Government of Haryana has declared this land to be a protected forest pursuant to the provisions of Chapter-IV of the Indian Forests Act,1927 (for short, `the Act'). It was averred that the appellants had taken the exercise of planting the trees thereon in the year 1984-85 and huge amount of labour R.S.A.No.3270 of 2005 -3- .... and costs was spent thereon and the respondent never planted the trees and has no concern with the same. It was pleaded that the suit is malicious and has been filed only to grab the property of the State. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to declaration as prayed for?OPP 2. Whether the plaintiff is also entitled to injunction as alleged?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff has got no cause of action & locus standi to file the present suit?OPD 5. Whether the suit is barred by limitation?OPD 6. Whether no proper court fee has been affixed for the purpose of court fees & jurisdiction?OPD 7. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD 8. Relief. After appraisal of the entire evidence on record, the trial Court dismissed the suit, whereas in appeal, its findings wee upset by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellants contended that the findings recorded by the First Appellate Court are erroneous and have been arrived R.S.A.No.3270 of 2005 -4- .... at by complete misreading of evidence and by ignoring Exhibit D1 vide which the area including the suit property was decreed to be a protected forest and in this view of the matter, the findings ought to be declared to be perverse and should accordingly be set aside. No one has appeared on behalf of the respondent despite the fact that the matter was shown in the warning list for a number of days. On 12.2.2007, this Court, while admitting the appeal, had formulated the following substantial question of law which arises for consideration:- “Whether in the facts and circumstances of the case the first appellate court was right in reversing the judgment and decree of the trial Court and the judgment and decree of the first appellant court is based on mis-reading and mis-appreciation of evidence is thus legally unsustainable? After hearing the learned counsel for the appellants and perusing the impugned judgment, as also the record, I am of the opinion that there is hardly any merit in this appeal. Exhibit P1 is the jamabandi for the year 1999-2000 which shows that the respondent is one of the co-sharers of the suit property. Since there was some ambiguity in the claim of both the parties regarding the ownership and identity of the suit property, demarcation was got done during the course of proceedings through Shri Hukam Chand, Kanungo, who was appointed as a Local Commissioner. He appeared as PW2 and deposed that the demarcation was done in the presence of the officials of the appellants and it was found in his report that R.S.A.No.3270 of 2005 -5- .... they were in unauthorised possession of land measuring 1 kanals and 9 marlas belonging to the respondent. The appellants could not dislodge this report by showing any cogent material. The fact that the officials of the appellants were associated is amply borne out from the report, Exhibit P2. This witness also proved notice, Exhibit P8, which was issued to the officials of the appellants before such demarcation was carried out. Even if the demarcation report was to be ignored, although there is no reason to do so, the clinching evidence comes in the shape of testimony of DW1-Satbir Singh, Range Forest Officer, who, in his cross-examination, admitted that the respondent is owner of the land in dispute. There is, thus, little hesitation to hold that the respondent is owner of the suit property. It has also come in evidence that there were 81 eucalyptus trees standing in the area which was encroached upon by the appellants. The State or its functionaries are not expected to encroach upon or unauthorisedly occupy the area belonging to a private citizen. It is not the case of the appellants that the trees were planted with the permission of the respondent or that with his consent. In this view of the matter, when the appellants were in unauthorised possession of the suit property, the findings recorded by the First Appellate Court can neither be termed perverse or erroneous warranting any interference. The findings can also not be termed to be perverse nor can it be said that they have been arrived at by misreading of evidence. In any eventuality, it is to be seen that Exhibits D1 to D4 do not establish the ownership of the appellants over the suit property and there is R.S.A.No.3270 of 2005 -6- .... conclusive evidence to show to the contrary and since the land in dispute belongs to the respondent, there is no question of it being a protected forest area and consequently, as a direct corollary thereto, there is no question of any violation of the provisions of the Act by the respondent. The question of law, as reproduced above, is answered accordingly against the appellants and in favour of the respondent. Consequently, this appeal is dismissed being devoid of any merit. May 22,2009 ( Mahesh Grover ) “SCM” Judge