RSA No.326 of 2011 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.326 of 2011 (O&M) Date of decision: July 6, 2011. Harmander Singh ... Appellant(s) v. District Forest Officer, Mansa & Anr. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri M.S. Uppal, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. Having failed in two rounds of litigation, the appellant has come up before this court by way of filing the present regular second appeal. A suit for permanent injunction was instituted by the appellant- plaintiff praying therein that the respondent-defendant District Forest Officer and District Collector, Mansa be restrained from taking forcible possession of the suit land measuring 95 kanals 15 marlas, as described in the plaint, which is in possession of the plaintiff as well as cutting of trees standing thereon. It is stated that the possession of the suit land was given to the plaintiff and his brothers by the Canal Department as Chakotedar/lessee since long and they have been cultivating the land. Defendant No.1 has no concern whatsoever therewith. If plaintiff is dispossessed forcibly, an irreparable loss would cause to him. RSA No.326 of 2011 -: 2 :- Upon notice, written statement was filed on behalf of the respondent-defendant wherein it is stated that the suit land was owned by the State Government and the defendant Forest Department is in possession of the same. They had planted 7100 kikar trees in the land measuring 47 kanals out of the suit land in the year 1988-89 by deploying government funds. Thereafter more trees were planted in the suit land in the year 2007- 08. The trees standing in the suit land belong to the Forest Department. It was further pleaded that vide notification dated 3rd May, 1958 the land over which the plaintiff claimed possession has been declared as a protected forest. The respondent-defendant also brought to the notice of the court that earlier a similar relief was sought by the father of the plaintiff by filing a suit which was dismissed by Civil Judge IInd Class, Mansa on 26.8.1992 and thereafter appeal filed by him was also dismissed on 22.4.1993. It is stated that on the same allegations, the present suit has been filed. After completion of the pleadings, the trial court had drawn the following issues:- 1. Whether the plaintiff and his brothers are in possession of the suit land as Chakotedar under the canal department? OPP 2. Whether the plaintiff is entitled to permanent injunction as prayed for? OP 3. Whether the civil suit filed by the father of the plaintiff regarding land measuring 95 kanals 15 marlas was dismissed by the court of Shri K.C. Gupta, the then Sub Judge IInd Class, Mansa on 26.8.1992 and this suit is barred by principle of res judicata? OPD 4. Whether the suit is barred for want of prior notice under RSA No.326 of 2011 -: 3 :- Section 80 CPC? OPD 5. Whether the defendants have already planted trees and plants in the suit land? If so its effect? OPD 6. Whether the jurisdiction of this court is barred under the Punjab Public Premises and Land Act, 1973? OPD 7. Relief. Parties to the suit led their evidence. The trial court held that the plaintiff and his brothers had stepped into the shoes of their father Gobind Singh. In the earlier round of litigation, Gobind Singh, father of the plaintiff, was not in possession of land measuring 48 kanals out of the land measuring 95 kanal 15 marlas. Qua the remaining land measuring 47 kanals and 15 marlas, on which possession of father of the plaintiff was upheld in the earlier round of litigation, by following due process of law, appellant and his brothers have been ejected as per the orders passed by the appropriate authority on an application filed by the defendant Forest Department before the Collector First Grade, Sardulgarh under Public Premises Act. The trial court concluded as under:- “15. It has been held in issue No.1 and 5 that plaintiff and his brother are not in actual cultivating possession of suit land. The relief of injunction is an equitable relief and one who seeks equity must do equity. The plaintiff has not pleaded in the plaint regarding earlier litigation pending between his father and defendants regarding suit land in the civil court and pendency of application moved by the defendants under Public Premises Act against him and his brother regarding suit land. It is admitted fact that previously father of plaintiff namely RSA No.326 of 2011 -: 4 :- Gobind Singh filed a civil suit for permanent injunction against defendants regarding the suit land in which the same subject matter was in dispute. The plaintiff has also admitted the filing of a petition under Public Premises Act by the defendants against him and his brother regarding the suit land, so, non- mentioning of above said earlier litigation regarding suit land by the plaintiff amounts to concealment of material facts by him and this fact alone disentitled him to get relief of injunction. Furthermore when plaintiff and his brothers are not in possession of any part of suit land as held in issue No.1 and 5, the plaintiff is not entitled to get on injunction against defendants for restraining them from dispossessing the plaintiff from the suit land and planting trees in it.” The above stated finding of the trial court was affirmed by the lower appellate court. I have heard Shri M.S. Uppal, Counsel appearing for the appellant. Shri Uppal has stated that both the courts below have committed a grave error and have acted against law and facts on record. Counsel has referred to Grounds of Appeal and has stated that the following substantial questions of law arise for consideration of this Court:- 1. Whether the judgments and decrees passed by both the learned courts are against the settled principle of law? 2. Whether the marking of a document as exhibit, is to be held to be duly proved or its execution has to be proved by admissible evidence? 3. Whether the possession of the plaintiff/appellant upon a uit RSA No.326 of 2011 -: 5 :- land as Gair Marusi tenant is held to be in unauthorized possession? 4. Whether the Government can evict the person illegally, who is in unauthorized possession of any land belongs to Government? 5. Whether the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court? 6. Whether judgment and decree passed by both the learned courts below are against the facts and evidence produced on record of the case? A perusal of the above stated questions, formulated as substantial questions of law, reveals that they are too general in nature. It was incumbent upon the plaintiff to state that earlier their father, qua the same land, had also filed a suit. It was also imperative for the plaintiff to state that on a petition filed by the respondent-defendants under the Public Premises Act, they have been evicted from the suit property. After appreciating the evidence threadbare, the courts below have held that even though the plaintiff claimed possession over 95 kanals 15 marls of land through their father Gobind Singh, in the earlier litigation initiated by the father, he was held to be not in possession of 48 kanals of land out of 95 kanals 15 marlas. Regarding the remaining land measuring 47 kanal 15 marla, the court held that it has come in evidence that vide report Ex.D6 and D7, possession was delivered to the defendant Forest Department on 8.9.2005 and 24.7.2007 respectively. The appellant in fact intended to assail concurrent findings of RSA No.326 of 2011 -: 6 :- fact by projecting legal issues/substantial questions of law which in no way arise. Facts proved on the file of the case leave no scope for appellant to urge that so-called substantial questions of law require attention of this Court. Hence, there being no merit in the present appeal, the same is dismissed. C.M. No.904-C of 2011 In view of the fact that the appeal itself has been dismissed, no orders are required to be passed in the application. The same is accordingly dismissed. [Kanwaljit Singh Ahluwalia] July 6, 2011. Judge kadyan