IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 530 of 2009 Date of decision: 25.11.2010 Ram Lal Sharma …Petitioner. Versus Subhash Chand Sharma …Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 For the petitioner: Mr. Jiya Lal Bhardwaj, Advocate. For the respondent: None. Deepak Gupta, J. (Oral) 1. This petition is directed against the judgement dated 18.5.2009 passed by the learned District Judge, Bilaspur in Civil Appeal No. 20 of 2008/06 whereby he dismissed the appeal filed by the petitioner (here-in-after referred to as the plaintiff) and upheld the judgement and decree of Civil Judge (Sr. Division), Ghumarwin, Distt. Bilaspur dismissing the suit filed by the plaintiff. 2. Briefly stated, the facts of the case are that the plaintiff alleged that he had 1/12th share in certain land situate in village Talao, Pargna Sunhani, Tehsil Ghumarwin, Distt. Bilaspur and he had sold the Khair trees standing on this land to 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 the defendant, who is a registered forest contractor. It was further alleged that the defendant agreed to pay Rs.7,000/- to the plaintiff for the sale of the trees. Out of Rs.7,000/- the plaintiff was paid only Rs.2,000/-. Hence, the suit for the balance amount of Rs.5,000/-. 3. The learned trial Court dismissed the suit on two grounds; firstly that the plaintiff being a share holder in an undivided share holding could not have sold the trees without the consent of the other share holders and admittedly the other share-holders were not party to the proceedings. The second ground to reject the suit was that the plaintiff had not led any evidence to show that the defendant had obtained permission from the forest department to cut and fell the Khair trees from the suit land. No other documents were produced on record by the plaintiff and only oral evidence was led by the plaintiff and his witnesses. The suit was dismissed on these grounds. 4. In appeal the plaintiff filed an application under Order 41 Rule 27 which was allowed. The plaintiff examined one Shri Balbir Singh, Sr. Assistant, DFO Bilaspur, as AW-1 who proved an 3 affidavit of the plaintiff Ext.AW-1/A. This is an affidavit of the plaintiff himself whereby the plaintiff on oath had affirmed that he had sold his Khair trees to Subhash Chand of village Dulehria out of his share on land in various khasra numbers. The learned lower Appellate Court while dealing with this affidavit has held that this affidavit at best will show that such affidavit was given. No agreement has been placed on record. This affidavit does not contain any terms on the basis of which such trees, if any, were transferred to the defendant. The learned trial Court held that there is no material on record to show whether any permission or sanction had been accorded for felling such trees. No record in this respect has been produced. It would be pertinent to mention that Section 100 of the CPC specifically prohibits the filing of a second appeal in a case the value whereof is less than Rs.25,000/-. Even where the value is more than Rs.25,000/- second appeal is maintainable only when a substantial question of law is involved. Therefore, it is apparent that powers under Order 227 of the Constitution of India cannot be used as a substitute to allow a 4 person to file an appeal which even under Section 100 is not maintainable. When findings of fact given by the Courts below cannot be set-aside under Section 100 of the CPC it is more than obvious that this Court exercising its constitutional powers under Article 227 cannot set-aside the findings of fact even if they are wrong. Therefore, the petition is rejected in limine. No order as to costs. 25th November, 2010 (Deepak Gupta) ™ Judge