IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 176 of 2011 Decided on: 29.7.2011 Om Prakash & another …Appellants. Versus Leela Devi …..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Digvijay Singh, Advocate. For the Respondent : Mr. Vinod Gupta, Advocate. Kuldip Singh, Judge(oral) This appeal is directed against the judgment, decree dated 28.5.2010, passed by the learned Additional District Judge, Fast Track Court, Hamirpur in Civil Appeal No. 44/2009, affirming the judgment, decree dated 6.4.2009, passed by learned Civil Judge( Senior Division), Hamirpur in Civil Suit No. 196/2004. 2. The respondent had filed a suit for permanent prohibitory injunction and for recovery of Rs.40,000/- against the appellants. The case of the respondent is that she is owner-in- possession of the land described in the judgment of the trial Court. The appellants are strangers who have nothing to do with the land in question. The appellants have removed two Tuni trees from the suit land. The wood of those trees was also removed by the appellants despite objection. The demarcation was taken by the 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 respondent and it was found during demarcation that trees were standing on the land of the respondent. 3. The suit was contested by the appellants by taking preliminary objections of maintainability, cause of action and estoppel. On merits, the appellants denied the case of the respondent and they asserted that the respondent has not approached the Court with clean hands. She has suppressed the material facts. It was denied that the appellants had taken away Tuni trees. It was asserted that the trees were taken away by the respondent herself. The replication was filed and the respondent reiterated her case. 4. The learned trial Court held that the respondent is owner-in-possession of the suit land. The appellants are interfering on the suit land without any right. The trial Court restrained the appellants from interfering in the suit land and a decree of Rs.40,000/- along with interest at the rate of 6% per annum from the date of filing of the suit till realization was also passed in favour of the respondent and against the appellants on 6.4.2009. The lower Appellate Court on 28.5.2010 has affirmed the judgment, decree dated 6.4.2009. In this way, the appellants have filed the Second Appeal. 5. The learned counsel for the appellants has submitted that the land of the appellants is on the lower side whereas the land of the respondent is on the upper side and there is a custom that owner having land on the lower side is entitled to 2/3rd shares of trees standing on the boundary. He has also submitted that the demarcation carried out in the Courts below is not legal, both the 3 Courts below have erred in decreeing the suit of the respondent. Learned counsel for the respondent has supported the impugned judgment and decree. It has not been submitted on behalf of the appellants that plea of custom was taken in the written statement. 6. I have gone through the judgments of the Courts below and it is clear from the judgments that plea of custom was not taken by appellants. Hence, in the Second Appeal the appellants cannot be permitted to take the plea of custom that the owner having land on the lower level is entitled to 2/3rd shares of trees standing on the boundary. The question of demarcation is not involved in the present case inasmuch as it is the pleaded case of the appellants that the trees, which were cut and removed by the respondent herself and not by the appellants. This plea was not accepted by two Courts below. The appellants did not project that the trees in question were on their own land. No substantial question of law is involved in the appeal. The two Courts below have rightly appreciated the material on record. Accordingly, the appeal is dismissed, so also all the pending applications. ( Kuldip Singh ), July 29, 2011. Judge. (vt)