RSA 30/2001 BEFORE THE HON’BLE MR JUSTICE BP KATAKEY JUDGMENT AND ORDER (ORAL) This appeal by the plaintiff is directed against the judgment an d decree dated 17.11.2000 passed by the learned Civil Judge, (Senior Division) , Hailakandi in Title Appeal No. 6/2000, dismissing the appeal by upholding the j udgment and decree dated 25.11.1999 passed by the learned Civil Judge, (Junior D ivision) No. 1, (now Munsiff), Hailakandi in Title Suit No. 56/1998, whereby and whereunder the suit of the plaintiff was dismissed. 2. The plaintiff/appellant instituted the said suit in the court of the learned Civil Judge, (Junior Division) No. 1, Hailakandi praying for declar ation that the order dated 28.5.1998 issued by the defendant No. 3 in a Bakijai Case No. 11/1997-98 as illegal, void and inoperative, for declaration that the p laintiff is not liable to pay Rs. 18,867/- as claimed by the defendants as royal ty and also for cost, contending inter alia that a plot of land was settled with the plaintiff where on some tea bushes and shed trees were planted and in the f irst part of the year 1996 they uprooted certain shed trees and tea bushes for t he purpose of re-plantation for which the defendant No. 2 vide communication dat ed 13.2.96 granted permission. However, subsequently the defendants imposed roya lty of Rs. 18,867/- in respect of shed trees and tea bushes on the ground that t hose are forest produce within the meaning of Regulation 4 of the Assam Forest R egulation and demanded such royalty. It has further been contended that a Bakija i proceeding was initiated wherein the order has been passed for recovery of the said amount towards royalty claimed by the defendants. The plaintiff therefore, instituted the said suit praying for the aforesaid declarations. 3. The suit had been contested by the defendant by filing a joint w ritten statement denying making of settlement as alleged by the plaintiff and co ntending inter alia that since the land from where the forest produce were remov ed is Govt. land and part of the forest they are liable to pay royalty and as su ch they were asked to pay the royalty after making a joint enquiry and on the ba sis of the report submitted thereoof. 4. The learned trial court framed the following issues for decision s: 1. Is there any cause of action of this suit? 2. Is the suit maintainable in its present form manner? 3. Is the suit barred under provisions of Assam Forest Regulation of 1891 and As sam Land and Revenue Regulation and Rules, 1886? 4. Whether the suit is bad for wim, estoppels and equescence? 5. Whether the plaintiff is entitled to get a decree for declaration that the o rder of the defendant No. 3 dated 28.5.1998 in B.C. Case No. 11/97-98 is illegal , void and inoperative and that the plaintiff is not legally bound to pay a sum of Rs. 18,867/- only as royalty as demanded? 6. To what relief or reliefs the parties are entitled? 5. The plaintiff/appellant in support of the case examined one witn ess while the defendant examined two witnesses. The plaintiff has also proved fo ur documents marked as Ext. 1 to 4. Ext. 1 dated 13.2.1996 was the permission gr anted by the Divisional Forest Officer to remove the forest produce; Ext. 2 was the communication dated 27.9.1996 issued by the Divisional Forest Officer to the manager of the appellant company demanding royalty of Rs. 18,867/-; Ext. 3 was the communication issued by the manager of the appellant company to the Division al Forest Officer disputing the liability of payment of royalty and Ext. 4 dated 28.5.1998 was the order passed by the certificate officer holding that the appe llant is liable to pay the said royalty. The defendant has also proved the joint inspection report dated 1.8.1995 marked as Ext. A. 6. The learned trial court on the basis of the evidences on record vide judgment and decree dated 25.11.1999 dismissed the suit of the plaintiff by deciding the issue No. 5 against the plaintiff by holding that though the plain tiff claimed that the land was settled with it, could not prove the same by prod ucing any document in support of such settlement. It has further been held that the land being a part of the forest land and trees etc. being forest produce wit hin the meaning of the Assam Forest Regulation, the plaintiff/appellant is liabl e for payment of royalty. The other issues namely; issue Nos. 1 to 4, however, w ere decided in favour of the plaintiff/appellant. 7. Being aggrieved, the plaintiff/appellant preferred Title Appeal No. 6/2000 in the court of the learned Civil Judge, which has also been dismisse d vide judgment dated 17.11.2000 by upholding the judgment and decree passed by the learned below. Hence the present appeal. 8. The appeal has been admitted for hearing vide order dated 20.7.2 001 by formulating the following substantial question of law: Whether any part and parcel of any land defined in Section 3(8) of the Assam Forest Regulation, 1891 will cease to be government land on acquis ition of permanent, heritable and transfer rights for use of an occupancy on set tlement of the same with any individual? 9. Mr. Purkayastha, learned counsel for the appellant in support of the substantial question of law formulated, has submitted that the learned cour t below while passing the impugned judgment and decree has ignored the fact that the land was settled in favour of the appellant for special cultivation and the said land being not a part of the forest land, no royalty can be levied or real ized from the appellant on account of removal of the shed trees from the land, i n respect of which lease was granted in favour of the appellant. According to Mr . Purkayastha, the land being not available at the disposal of the Govt. withi n the meaning of Regulation 3(8) of the Assam Forest Regulation, the same having been settled with the appellant by the Govt., no royalty can be charged for rem oval of the shed trees. 10. None appeared for the respondents though the respondents were se rved. 11. It appears from the impugned judgment and decree passed by the l earned courts below that though the plaintiff/appellant claimed that the land wa s settled with it by the Govt. for special cultivation, no document whatsoever c ould be produced by the plaintiff/appellant to substantiate such plea. It also a ppears from Ext. A i.e. the joint inspection report that the land from which the trees were removed is Govt. land and part of the forest land. 12. Regulation 4 of the Assam Forest Regulation defines the ’forest produce’ as under: (4) forest produce includes - (a) the following, whether found in, or brought from, a forest or not that is to say, timber, charcoal, caoutchoue, catechu, wood-oil, resin, natural varnish, b ark, lac, myrabolams, (and rhinoceros horns) and (b) the following when found in, or brought from, a forest that is to say - (i) trees and leaves; and fruits and all other parts or produce not hereinbefore mentioned of trees, (ii) plants not being trees (including grass creepers, reeds and moss) and all p arts or produce of such plants, (iii) wild animals and skins, (tusks, and horns other than rhinoceros horns) bon es silk, cocoons, honey and wax and all other parts or produce of animals, and (iv) peat, surface-soil, rock and minerals (including limestone, late rite miner al oils and products of mines or quarries). 13. It is not in dispute that for removal of the forest produce from the forest, subject, to permission granted by the authority, royalty is payable . In the instant case, as noticed above, though the plaintiff/appellant claimed that the land was settled with it, could not produce any document relating to su ch settlement pertaining to the land from which the forest produce were removed. The defendants in the written statement though have admitted issuance of lease for special cultivation in favour of the appellant in respect of certain land, t he defendants could prove vide Ext. A that the forest produce which had been rem oved by the appellant was from forest land and not from the land which was settl ed by way of lease for special cultivation in favour of the appellant. 14. The substantial question of law as framed on 20.7.2001, while ad mitting the appeal, in view of the aforesaid discussion, does not arise, as the land from which forest produced was removed by the appellant, proved to be Govt. land. 15. In view of the above, the learned courts below have rightly deci ded the issue No. 5 against the plaintiff/appellant and dismissed the suit. 16. The appeal is, therefore, dismissed. No cost.