HIGH COURT OF UTTARANKHAND AT NAINITAL SECOND APPEAL NO. 5/2006 The State of Uttaranchal through Collector, Almora and others ….. Appellants Vs. Tulsa Singh (since deceased) represented by L.Rs. …Respondents 4.4.2008 Hon’ble Rajesh Tandon, J. Heard Shri R.C. Arya, counsel for the appellants and Shri P.C. Maulekhi, counsel for the respondents. 2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 11.4.2002 passed by the Munsif Magistrate/Civil Judge in O.S. No. 4 of 1988 and the judgment and decree dated 15.10.2005 passed in Civil Appeal No. 2 of 2002. 3. Second appeal was admitted on the following substantial question of law:- “Whether the courts below have erred in law in not giving finding on the issue relating to the fact that whether or not 11oo meters long boundary wall has been constructed over the reserved forest land by the plaintiff?” 2 4. Briefly stated, a suit has been filed by the plaintiff for permanent injunction restraining the defendants from interfering with the khet nos. 7747, 7750, 7751 and 7749 by demolishing the wall ‘AB’ shown in plaint map or by any other means. According to the plaint averments, the plaintiff has claimed himself to be the owner in possession of aforesaid plots and on the southern side of his aforesaid land a boundary wall was constructed by his predecessor which is shown by the letters ‘AB’. The Range Officer, Ranikhet Forest Range, Ranikhet demolished a part of the wall measuring 10 feet and has threatened to encroach upon the khasra nos. 7747, 7749, 7750 and 7751. The plaintiff has prayed for restraining the defendants from demolishing his wall and also constructing any wall on his above land or making any interference over the said land in any manner. 5. The defendants have filed a written statement submitting therein that the plaintiff Tulsa Singh in order to grab the Government land started constructing a wall over the Government land without having any authority in order. The Range Officer, Ranikhet Forest Range, Ranikhet asked the plaintiff to remove and demolish the wall within a short time and give undertaking in writing on 29.7.1987. The plaintiff committed that he will demolish the wall. He also promised to demolish a hut made by him over the land within the boundary of Forest. It has been alleged that the plaintiff has illegally occupied 0.080 hectare of the forest land without the consent of the defendants by raising a wall towards the South and West of the plot nos. 7747, 7749, 7750 & 7751. 3 6. On the pleadings of the parties, the trial court has framed the following issues:- “1. Whether the plaintiff is the owner in possession of the khasra nos. 7747, 7749, 7750 & 7751? 2. Whether the suit is not maintainable for want of notice to the defendants under Section 80 of Code of Civil Procedure? 3. Whether the suit is barred by Section 74 of the Indian Forest Act? 4. As to whether plaintiff is entitled for any relief? 7. The plaintiff has examined Tulsa Singh as P.W.1 and Bala Dutt as P.W.2. The defendants have examined Mukesh Sharma as D.W.1, Bhupal Datt Upreti as D.W.2 and Bhairav Dutt Kandpal as D.W.3. 8. Towards the documentary evidence, the plaintiff has produced sale deed i.e. paper no. 49 C, map i.e. paper no. 7 C, map khatauni i.e. paper no. 8 C, map khatauni i.e. paper no. 9 C, copy of order i.e. paper no. 10 C. 9. Towards the documentary evidence, the defendants have produced the copy of the report of the Commissioner i.e. paper no. 36 C, map of the Reserved Forest Block Chiliyanula, Ranikhet i.e. paper no. 30 C, Site plan of encroached area i.e. paper no. 40 C, true copy of the Reserved Forest of Van Block i.e. paper no. 41 C, true copy 4 of letters i.e. paper no. 42 C, map paper 43 C, written undertaking i.e. paper no. 71 C. 10. While deciding as to whether the plaintiff is the owner in possession of khasra nos. 7747, 7749, 7750 & 7751, the trial court has come to the conclusion that the plaintiff is the owner in possession of the aforesaid lands. 11. While deciding as to whether Section 80 of the Code of Civil Procedure bars the suit, the trial court has recorded the finding that since the suit has been filed after obtaining the permission of the court, the suit is not barred by Section 80 of the Code of Civil Procedure. 12. While deciding as to whether the suit is barred by Section 74 of the Indian Forests Act, the trial court has recorded the finding that the suit has been filed for injunction only and not for damages, therefore, the same is not barred by Section 74 of the Indian Forests Act. 13. On the basis of the aforesaid, the trial court has decreed the suit of the plaintiff. 14. Aggrieved by the judgment and decree passed by the trial court, the defendants went in appeal. The appellate court has framed the following three issues and remanded the matter to the trial court for deciding these issues:- 5. As to whether the map annexed with the plaint is correct according to the actual site? 6. Whether the alleged wall is situate towards the end of the plot nos. 7747, 7749, 7750 and 5 7751 in the Southern side and built on the said plots? 7. Whether the defendants have been constructing the wall over the forest land having length of 1100 meters as pleaded by them? 15. After the remand of the case, the trial court has appointed a Survey Commissioner to locate the land in dispute who submitted his report alongwith the site map vide report dated 18.10.2001. 16. While deciding the issues as to whether the map annexed with the plaint is correct according to the actual site, as to whether the alleged wall is situate towards the end of the plot nos. 7747, 7749, 7750 and 7751 in the Southern side and built on the said plots and as to whether the defendants have been constructing the wall over the forest land having length of 1100 meters as pleaded by them, the trial court has come to the conclusion that the plaintiff has succeeded in proving that the wall in question which has been shown by letters ‘AB’ in plaint map is situate towards the end of the plot nos. 7747, 7749, 7750 and 7751 in the Southern side and the defendants are trying to encroach upon the same. The trial court has further recorded the finding that the plaintiff is owner in possession of the land in dispute and there is a wall on the Southern side of the aforesaid khet of the plaintiff. 17. On the basis of the aforesaid, the trial court has decreed the suit. 6 18. Aggrieved by the judgment and decree passed by the trial court, the defendants went in appeal. The appellate court has confirmed the judgment and decree passed by the trial court and dismissed the appeal. 19. Since both the courts below have recorded the concurrent findings and has come to the conclusion that the wall in question which has been shown by letters ‘AB’ in the plaint is situate at the land of the plaintiff, the substantial question of law involved in the second appeal is decided against the appellants. 20. In H.P. Pyarejan Vs. Dasappa 2006 AIR SCW 715, the Apex Court has observed as under:- “Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.” 21. In Commissioner Hindu Religious & Charitable Endowments v. P. Shanmugama and others (2005) 9 SCC 232, it has been held under:- “14. In our view, High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of fact as it has done.” 7 22. In view of the aforesaid, second appeal is liable to be dismissed being devoid of merit. 23. Consequently second appeal is dismissed. No order as to costs. (Rajesh Tandon, J. ) 4.4.2008 Avneet