IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 195 of 1998. Judgement reserved on: 1.4.2008. Date of decision: 2.4.2008. Lesri Devi ….. Appellant. Vs. State of H.P. & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Ms. Rita Goswami, Advocate. For the Respondents : Mr. R.K. Bawa, Advocate General with Mr. A.K. Bansal, Additional Advocate General, for respondent No.1. Mr. Neel Kamal Sood, Advocate, for respondent No. 2. Kuldip Singh, Judge. This appeal has been directed against the judgement, decree dated 25.3.1998, passed by learned District Judge, Kullu in Civil Suit No. 183 of 1993/ 18 of 1995, dismissing the suit of the appellant, for recovery of Rs.5,00,000/-. 2. The facts in brief are that on 6.11.1993 appellant Lesri Devi, her husband and attorney Budhi Singh filed Civil Suit No. 183 of 1993 in this court against the respondents for recovery of Rs.5,00,000/-. The suit was later on transferred by this court to Kullu and learned District Judge, Kullu has dismissed the suit on 25.3.1998. Whether the reporters of the local papers may be allowed to see the Judgment? …2… In the appeal there were two appellants but vide order dated 18.7.2007, the name of second appellant Budhi Singh was deleted. 3. The further facts of the case are that in the year 1971 appellant applied to Divisional Forest Officer, Kullu for felling 70 Kail trees from her land in Phatti Bari, Kothi Baragarh. The department did not take any action on the application of the appellant, therefore, she filed suit, which was decreed by learned Sub Judge, Kullu on 26.5.1982. On 15.7.1982, appellant applied to Divisional Forest Officer, Kullu, who informed the appellant that she should apply in the year 1984-85, she again applied, but without any result. The appellant ultimately filed execution petition in the court of learned Senior Sub Judge, Lahaul & Spiti at Kullu. Thereupon Divisional Forest Officer, Kullu issued felling order, dated 9.1.1985, in favour of the appellant. The appellant cut the trees and informed the court that trees have been cut in accordance with decree, dated 26.5.1982, and felling order, dated 9.1.1985. On this, execution petition filed by appellant was dismissed as satisfied. 4. On 12.7.1985, an application was made by the appellant to Divisional Forest Officer, Kullu for permission to install rope way for carrying the felled timber from the forest to the road head in village Jonga. On the application of the appellant, the beat guard reported that two damage reports of unauthorized felling had been filed against the appellant and her husband Budhi Singh. The Divisional Forest Officer did not take any action on the application of appellant for installing rope way. The forest department demanded Rs.3500/- from the appellant for having cut trees in violation of condition No.4 of the …3… felling permission. The department thereafter filed a criminal case in the court of Chief Judicial Magistrate, Kullu on 7.2.1986, the appellant and her husband were found guilty on 28.7.1988, under Section 16 of the Land Preservation Act, and were sentenced to imprisonment till the rising of the court and to pay a fine of Rs.250/- each. In appeal, the sentence was maintained. In Criminal Revision No. 28 of 1989, this court had maintained the penalty of Rs.3500/- imposed upon the appellant and her husband. 5. The appellant and her husband requested the Divisional Forest Officer, Kullu for installation of ropeway for bringing the timber from forest to nearest motor head, but to no effect. The appellant then filed suit in the court of learned Senior Sub Judge, Kullu for mandatory injunction directing the department to allow her to install a ropeway for carriage of timber. During the pendency of the suit, permission was granted to the appellant and she managed to transport the timber from the forest to the road head. There were 1658 sleepers and 505 quintals of fire wood in all. The suit was dismissed on 24.8.1987 on having become infructuous. 6. The entire timber was entrusted to Assistant Manager at Patli-Kuhal of respondent No.2 on 20.11.1987. The Assistant Manager sent only 490 sleepers to their Bhadroya depot for sale, out of which 245 sleepers were sold by auction on 28.1.1988 for a sum of Rs. 95,530/- and remaining 240 sleepers were sold by way of auction on 23.10.1998 for a sum of Rs. 1,36,230/-. The respondent No. 2, however, deposited only a sum of Rs.1,45,343.30 in all on different dates in the court of learned Senior Sub Judge, Kullu. The officials of …4… respondent No.2 did not auction the remaining timber. The appellant and her husband filed CWP No. 234 of 1989 in this court praying for issuance of writ of mandamus directing the respondent No.2 to auction the remaining timber. The respondent No. 2 had sent only 945 scants to Bhadroya depot, which were auctioned on 30.12.1989 for a sum of Rs.1,88,615/-, but only an amount of Rs.1,17,571/- was deposited in the court. 7. The appellant to sum up has suffered in the following manner:- (a) Malicious prosecution of the appellant when according to the officers of the forest department she and her husband were liable to pay a penalty of Rs.3500/- only. This amount could have been easily recovered from the appellant and her husband in other ways also. (b) Undue delay in granting permission for installation of rope way for carriage of timber from the forest to the road head at Jonga. This resulted in deterioration of the quality of timber for having remained lying the open from January 1985 to July 1987 and did not fetch good price in the auction. (c) Loss of 221 scants and 505 quintals of fire wood on account of non-transportation of the whole of the timber during December 1987/ January 1988. This resulted in loss of 221 scants and firewood. Besides full sale amount has not been paid to the appellant and her husband and the departments are liable to pay the balance. …5… 8. The appellant has alleged that she has suffered mental harassment at the hands of respondents and has also suffered huge monetary loss, but she confined her claim to Rs.5,00,000/- only, which amount she claimed from respondents jointly and severally. In these circumstances, the suit was filed. 9. The respondent No.1 has contested the suit by filing written statement and has pleaded that appellant did not adhere to silvicultural restrictions imposed by the forest department, clear felling was done by the appellant without waiting for any demarcation or listing of the trees. The appellant did not adhere the decree dated 26.5.1982 of the civil court. The appellant has violated the provisions of Land Preservation Act by clear felling of trees standing on her land. There was doubt about three trees felled by the appellant and for that purpose spot was got measured and it was found that three trees felled by the appellant were within the boundary of her land. 10. The appellant was required to show the alignment of proposed rope way to the forest department for which the local residents had given the consent which was not done. On completion of formalities for installation of the ropeway, permission was granted to appellant for installation of the rope way by the forest department. The respondent No. 1 denied the claim of the appellant for malicious prosecution and other claims raised in the plaint. 11. The respondent No.2 has filed separate written statement, in which preliminary objection of suppression of material facts on the part of the appellant has been taken. The appellant had earlier filed a suit for rendition of account of the same subject matter …6… in the court of learned Sub Judge Ist Class, Kullu, which has been dismissed on 4.6.1994, hence the suit is not maintainable. Preliminary objections of limitation, locus standi of the appellant to file the suit have also been taken. On merits, it has been denied that 1658 sleepers and 505 quintals of fire wood were handed over by the appellant. In fact, only 1437 scants of Kail were handed over to respondent No.2 on different dates by the appellant. These scants were transported by respondent No. 2 to their sales depot Bhadroya and were auctioned. The sale proceeds after deducting transport and other charges were deposited in the court of learned Sub Judge Ist Class, Kullu. In all Rs. 2,62,914/- after deducting expenses were deposited in the court below. The respondent No. 2 denied the allegations of appellant pleaded in paragraph 12 (a), (b) and (c) of the plaint. It has been reiterated that 1437 scants were handed over to respondent No.2. The appellant filed separate replications to the written statements of respondents No.1 and 2 and she reiterated her stand which was taken by her in the plaint. On 28.10.1995, the following issues were framed:- 1. Whether the defendants have delayed the transportation of the timber belonging to the plaintiff as alleged? OPP. 2. Whether the plaintiff is entitled for a sum of Rs.5 lac, if so, from whom? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the present suit is not within the period of limitation and is liable to be dismissed on this course? OPD. …7… 5. Whether the plaintiff has no locus-standi for filing the present suit? OPD. 6. Relief. 12. The learned District Judge on 25.3.1998 has dismissed the suit, hence this appeal. 13. I have heard Ms. Rita Goswami, learned counsel for the appellant and Mr. R.K.Bawa, learned Advocate General assisted by Mr. A.K. Bansal, learned Additional Advocate General for respondent No.1, Mr. Neel Kamal Sood, learned counsel for respondent No. 2 and gone though the record. The learned counsel for the appellant during the course of her submissions did not press the claim of appellant with respect to malicious prosecution and loss due to delay in granting permission for installation of ropeway. She has only confined the claim of the appellant with respect to loss of 221 scants and 505 quintals of fire wood. She has submitted that learned District Judge has misinterpreted and misconstrued the material on record in dismissing the claim of the appellant with respect to 221 scants and 505 quintals of fire wood. The learned counsel has further submitted that appellant may be permitted to lead additional evidence for which appellant has filed CMP No. 21 of 2008. She has submitted that additional evidence sought to be led by the appellant could not be adduced earlier. The respondent No. 1 has filed a reply to the additional evidence application of the appellant and contested the application. 14. On behalf of the respondents, it has been submitted that appellant has miserably failed to prove her case. There is no …8… evidence on record that 221 scants and 505 quintals of fire wood were handed over to the respondents. The respondents No.1 and 2 through their counsel have supported the impugned judgement. The application for leading additional evidence of the appellant has been opposed by both the respondents. 15. In the application for leading additional evidence, it has been stated that letter dated 19.5.1986 of Budhi Singh addressed to Conservator of Forests with list of timber, now sought to be brought on record by way of additional evidence was traced out by chance by the present counsel from the bundle of papers which were in possession of the appellant. The letter dated 26.7.1985 which was tendered at the time of leading evidence was not proved in accordance with law and therefore, this documents is also required to be produced by way of additional evidence. The learned counsel for the appellant has submitted that list of timber accompanied with letter dated 19.5.1986 does indicate that there were 1658 scants and 505 quintals of fire wood and this is the case of the appellant that in fact 1658 scants and 505 quintals of fire wood were handed over to respondent No.2 by the appellant and her husband. The perusal of letter dated 19.5.1986 would show that this letter only refers the annexing of size list with the letter. In the letter dated 19.5.1986, there is no mention that in fact 1658 scants and 505 quintals of fire wood were handed over to the respondents. The list filed with letter dated 19.5.1986 is not free from suspicion inasmuch as in the list filed with the letter 505 quintals of fire wood has been mentioned, but the list which has been referred in the letter dated 19.5.1986 only states …9… about the size of the timber and not with respect to the fire wood. Similarly, on the letter dated 19.5.1986 there is a seal of Divisional Forest Officer showing the receipt of letter on 18.6.1986. But on the list filed with letter, dated 19.5.1986, there is no such seal. In any case, the letter dated 19.5.1986 and list filed with the letter, dated 19.5.1986, are not sufficient to prove the case of delivery of 1658 scants and 505 quintals of fire wood to the respondents. The appellant through her counsel has already given up the claim on account of loss suffered by her due to late installation of rope way, therefore, proof of letter dated 26.7.1985 mentioned in the application by way of additional evidence is also not required for disposal of the appeal. The appellant has failed to make out any case of additional evidence, hence CMP No. 21 of 2008 for additional evidence is rejected. 16. PW 1 Budhi Singh, general power attorney holder of Smt. Lesri Devi has not proved the handing over of 1658 scants and 505 quintals of fire wood to respondents. In the cross examination, he has admitted that timber of 70 trees remained with him in the forest. He has also admitted in cross-examination that whatsoever timber was sold by the corporation, sale proceeds thereof were deposited in the court and he has received that amount. He has admitted that he has no receipt of handing over 1658 scants of Kail and 505 quintals of fire wood. He has also admitted that the corporation had auctioned 1437 scants. He has also admitted that he had filed a suit for rendition of account against the forest corporation, which was dismissed on 4.6.1994 vide Ex. D2/A. Thus it has been …10… proved on record that the forest corporation had auctioned 1437 scants and appellant has received the payment of sale of 1437 scants. The appellant in order to prove the handing over of 1658 scants of Kail and 505 quintals of fire wood could have summoned the requisite record from the respondents but it has not been proved that appellant had handed over 1658 scants of Kail and 505 quintals of fire wood to the respondents. 17. Thus there is no evidence on record that in fact, 1658 scants of Kail and 505 quintals of fire wood, were handed over to the respondents by the appellant. The sale proceeds of 1437 scants were already received by the appellant. DW 1 Raghubir Singh has proved the statement of timber Ex. DZ. DW 2 Multan Singh Parmar has proved that 122.378 cub. meters wood was received which was accounted for. The statement Ex. DZ also proves that 122.378 cub. meters wood was received by the corporation from the appellant. The timber of the appellant was sold in auction and as per PW 17 Harbans Lal when the timber of the plaintiff was auctioned on 28.10.1988 and 30.12.1989, Budhi Singh general power of attorney of plaintiff was present on the spot. He gave his consent to the auction amount and writings to this effect are Ex. DX and Ex. DY. Therefore, it has also been proved that timber was auctioned by respondent No. 2 with the concurrence of the general power of attorney holder of the appellant. Hence, it cannot be said that appellant did not get actual price of the timber. It is common knowledge that in auction the goods are sold as per rates prevalent at the time of auction. Therefore, appellant cannot raise any grievance …11… with respect to sale price prevalent at the time of auction. The appellant has miserably failed to prove her claim with respect to 221 scants and 505 quintals of fire wood. The learned District Judge has appreciated the material on record properly. No case for interference has been made out by the appellant. 18. No other point was urged. 19. As a result of the above discussion, the appeal fails and the same is dismissed. CMP No. 22 of 2008. 20. Infructuous, in view of disposal of appeal. April 2, 2008. ( Kuldip Singh ) (Hem) Judge.