RSA No. 208 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 208 of 2009 Date of Decision: 21.08.2009 Tarsem Singh aged 69 years, son of Harnam Singh resident of village Mundian Rangram (Dogar Mundian), Tehsil and District Hoshiarpur. ... Appellant Versus 1. Amar Kaur widow of Shri Puran Singh; 2. Gurdev Kaur daughter of Late Sh. Puran Singh; 3. Gurmej Kaur daughter of Late Sh. Puran Singh; 4. Gurmail Singh son of Late Sh. Puran Singh; 5. Bhupinder Singh son of Late Sh. Puran Singh; 6. Kuldip Kaur daughter of Late Sh. Puran Singh; all r/o village Nangal Wahid, Tehsil and District Hoshiarpur. 7. Narain Singh son of Munsha Singh r/o village Pathralian, Tehsil and District Hoshiarpur. 8. Balbir Singh son of Jawala Singh, r/o village Nangal Wahid, Tehsil and Distt. Hoshiarpur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Arun Takhi, Advocate, for the appellant. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 06.03.03, rendered by the Court of Civil Judge (Junior Division), RSA No. 208 of 2009 2 Hoshiarpur, vide which, it dismissed the suit of the plaintiff/appellant, and the judgement and decree dated 22.04.08, rendered by the Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur, vide which, he dismissed the appeal. 2. The plaintiff, claimed himself to be a co-sharer, in possession of the land, in dispute, measuring 11kanals – 10 marlas. He had planted 40 Sapheda trees, in this land, after obtaining loan. The land of Master Puran Singh (now deceased), defendant No. 1, was also adjoining the land of the plaintiff/appellant. The plaintiff/appellant, filed suit No. 152 of 1992, against Master Puran Singh (since deceased), and Narain Singh, defendants, in the Court of Sh. K.S. Cheema, Sub Judge, Hoshiarpur, which was decided, on 02.12.92. Both the defendants, had given an undertaking that they would not cut and remove the trees, from the land, in possession of the plaintiff. After the decision of the suit, referred to above, defendant No. 1, again attempted to cut and remove the trees. The plaintiff filed an application under Order XXI, Rule 32 of the Code of Civil Procedure, wherein defendant No. 1, suffered a statement, on 05.11.96, to the effect, that he would not cut and remove the trees. It was further stated that defendant No. 1, had obtained demarcation, from the revenue officials, and forcibly removed the trees, without uprooting their portions embedded in the land. Three trees were uprooted totally from the land, while 37 tress, were cut, and removed above land. The trees were of 10 to 12 years of age, and the price of each three, was Rs. 3000/-, total amounting to Rs. 1,00,000/-. It was further stated that the appellant, filed a complaint about this illegal act, before the Gram Panchayat. Balbir Singh, defendant No. 3, took the wood of already cut 40 Sapheda trees, in his possession, and agreed that, he would not allow defendants No. 1 and 2, to sell the same. RSA No. 208 of 2009 3 The appellant, was advised to seek remedy, in the Court. Thereafter, defendant No. 3, allowed defendants No. 1 and 2, to sell the entire wood of already cut 40 Sapheda trees. As such, defendant No. 1, was liable to pay the amount, in question. The defendants, were many a time asked, to pay the amount of Rs. 1,00,000/- as the price of already cut 40 Sapheda trees, but to no avail. On their final refusal, left with no other alternative, a suit for recovery, was filed. 3. Defendants No. 1 and 2, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable, in the present form. It was further pleaded that the plaintiff, had no locus-standi, to file the suit. It was further pleaded that the plaintiff, had no cause of action to file the suit. It was further pleaded that the plaintiff, was estopped from filing the suit, by his own act and conduct. It was denied that the plaintiff, was the owner of the land, in dispute. It was further denied that the plaintiff, had ever planted Sapheda trees, in his own land. It was stated that the defendants, had no concern with the land of the plaintiff, as well as with the trees, if any, planted by him thereon. It was further stated that the plaintiff, was in the habit of filing false and baseless suits, against the defendants. Previously also, he filed civil suit No. 157 of 1992, on false grounds, and the defendants, clearly stated that they would not interfere, in his possession, as they had no concern with the trees, if any, standing in his land. The plaintiff, withdrew the suit, on 02.12.92. Later on, the plaintiff, filed an application, under Order 21, Rule 32 of the Code of Civil Procedure, in which, the defendants, clearly stated on 05.11.96, that they would not cut and remove the trees, if any, and the application, was withdrawn on 05.11.96. It was further stated that, in fact, the plaintiff, with RSA No. 208 of 2009 4 malafide intention, wanted to interfere, in the land of the defendants, so that the trees, which were standing, in their land, could be taken into possession. It was further stated that the defendants, cut and removed the trees standing, in their own land, in December, 1996, as the plaintiff, had already obtained demarcation, on 06.09.86, and also signed thereon. The plaintiff, never raised any objection, against the demarcation, till the filing of the suit on 09.10.98. It was further stated that no date, month, or year, was mentioned, by the plaintiff, when the trees, were allegedly cut by the defendants. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to recovery of Rs. 1 lac, as prayed for? OPP (ii) Whether the suit is not maintainable in the present form? OPD (iii) Whether the plaintiff has got no locus- standi to file the present suit? OPD (iv) Whether the cause of action has not accrued to the plaintiff to file the present suit? OPD (v) Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD (vi) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed by the Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur, vide judgement and decree dated 22.04.08. RSA No. 208 of 2009 5 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the plaintiff/appellant, and have gone through and perused the documents, on record, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the Courts below misread and misappreciated the evidence, and recorded a perverse finding that the plaintiff/appellant failed to prove his case, resulting into the dismissal of the suit? 10. The Counsel for the plaintiff/appellant, submitted that earlier a suit, was filed, by the plaintiff/appellant, wherein, the defendants, made statement, that they would not cut the trees from his land. He further submitted that the Courts below, mis-read and mis-appreciated the evidence, and recorded perverse findings, that the trees, were not cut by the defendants, and, thus, he was not entitled to any compensation. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the plaintiff/appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or RSA No. 208 of 2009 6 “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The main question, for determination before the Courts below, was that, as to whether, the defendants, cut the trees, from the land of the plaintiff, and, as such, caused loss to him, to the tune of Rs. 1 lac. Jagiri Ram, PW1, no doubt, stated that, the trees, were cut by the defendants, but at the same time, he made it clear, that the said trees were neither cut, nor removed, in his presence. Harjit Singh, PW3, examined by the plaintiff/appellant, stated that, he was asked by the plaintiff, to depose, in the Court, as he (plaintiff), was his distant brother, in the same family. He also did not depose that the trees from the land of the plaintiff were cut in his presence by the defendants. Harjit Singh, was, also interested in the plaintiff, to depose, in his favour. Both these witnesses, therefore, did not support the case of the plaintiff. Tarsem Singh, plaintiff, no doubt, appeared as PW2, and deposed that 40 trees, were cut, from his land, by the defendants, and he moved an application, in the Police Station, where the defendants, were summoned, wherein, they admitted in the presence of the members of the Gram Panchayat regarding the cutting of trees, and undertook to pay the price thereof. No document, was produced on the record, with regard to such admission and undertaking of the defendants. No member Panchayat, in whose presence, such an admission, was made, by the defendants, was also produced, to prove this factum. The statement of Tarsem Singh, plaintiff, was also contradictory to the statements of the other witnesses. No doubt, it was the case of the plaintiff, that the trees, were cut, in the year 1996, but he, for a period of about 2 years, kept silent and slept over the matter, and only filed a suit, in the year 1998. If the matter, was compromised, and the RSA No. 208 of 2009 7 defendants, did not comply with the terms and conditions thereof, then certainly the first information report, could be got lodged, by the plaintiff, as a criminal offence, was allegedly committed. D2, on the other hand, was the report of the Local Commissioner,which was challenged by the plaintiff. During the course of his cross-examination, the plaintiff, himself stated that, this report of demarcation, conducted by girdawar, was correct, according to law. He also admitted that the site plan prepared by the girdawar, was also correct. The Courts below, were right, in holding that, since from the evidence, on record, it was not proved, that the defendants cut and removed the trees, no help, could be drawn, from D2, the report of the Local Commissioner, as he was not present at the time of the alleged incident and moreover he was not summoned as a witness, and no opportunity, was granted, to the defendants, to cross-examine him. The concurrent findings of the Courts below, that the plaintiff, failed to prove that the trees, from his land, were not cut and removed by the defendants, and, as such, he was not entitled to recover any amount, being based on the correct reading and appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference. The submission of the Counsel for the plaintiff/appellant, thus, being without merit, must fail,and the same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. The substantial question of law, depicted above, is answered against the appellant. 12. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 21.08.2009 (SHAM SUNDER) Amodh JUDGE