IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3097 of 2009 Date of Decision : August 24, 2009 The State of Punjab through Collector, Ferozepur and others .....Appellants Versus Phul Chand and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. K.S. Sidhu, Deputy Advocate General, Punjab T.P.S. MANN, J. Suit for declaration with consequential relief of permanent injunction, filed by the plaintiffs-respondents, was dismissed by learned Civil Judge (Senior Division), Ferozepur on 26.8.2008. The appeal filed by the plaintiffs was, however, accepted by learned Additional District Judge, Ferozepur on 5.2.2009. Aggrieved of the same, the defendants have filed the present second appeal under Section 100 of the Code of Civil Procedure. According to the plaintiffs, they were owners of the trees standing on land, measuring 23 Kanals 16 Marlas, situated at village Buhrandinwala. The State of Punjab constructed a metalled road in the suit land owned and possessed by the plaintiffs. This led to a civil suit being filed by the plaintiffs against the State of Punjab and the Superintending R.S.A. No. 3097 of 2009 -2- Engineer, PWD (B&R), Ferozepur for possession of the aforementioned land which stood encroached upon on account of construction of the metalled road. In the alternative, prayer was made for payment of compensation by acquiring the land. The suit was finally decided by learned Civil Judge (Junior Division), Ferozepur on 23.4.2005 and the State of Punjab as well as Superintending Engineer, PWD (B&R) were directed to pay compensation to the plaintiffs by acquiring the land within a period of six months from the date of the decree, failing which the plaintiffs were held entitled to recover possession of the suit land. The defendants failed to comply with the directions within the stipulated period resulting in the plaintiffs becoming entitled to recover the possession. Accordingly, they applied for execution, pursuant to which warrant of possession was issued. The possession of the land was delivered to the plaintiffs. The execution application was dismissed as fully satisfied on 24.2.2007. The plaintiffs had, thus, become owners in possession of the suit land. However, the Kanungo and the Patwari referred to existence of 226 trees in the suit land at the time of delivery of possession. It was stated therein that these trees belonged to Forest Department and there was no direction from the Court, therefore, the plaintiffs were directed not to cut any tree without order of the Court. None of the trees was ever planted by the defendants. They belonged to the owner of the land. Despite the same, the Forest Department started claiming the trees. The plaintiffs were threatened that in case they remove any tree, they would be implicated in a false case. Accordingly, the plaintiffs prayed for a decree of declaration that they were owners of all the trees standing on the suit land and the defendants be restrained from claiming right over those trees and also from cutting or removing any tree or interfering in the rights of the plaintiffs over those trees. R.S.A. No. 3097 of 2009 -3- In its reply filed to the suit, Superintending Engineer, PWD (B&R), Ferozepur stated that neither it planted the trees over the suit land nor it threatened to remove or cut the trees. Divisional Forest Officer- defendant No.3 pleaded that it was owner of the trees planted in the suit land and the plaintiffs had no concern with the same. The Forest Department had already marked/numbered of the trees at the spot. In that regard defendant No.3 relied upon Rapat No.319 dated 27.1.2007 made by the Kanungo and the Patwari that trees in question belonged to the Forest Department. After hearing learned counsel for the parties and going through the evidence brought on the record, learned trial Court held that the plaintiffs were owners of the trees standing on the land in question. However, they were not entitled to the relief prayed for by them, as they had equally efficacious remedy available for getting symbolic possession of the trees standing on the suit land and, therefore, part and parcel of the same. They could have claimed the relief regarding the trees in the earlier suit and, therefore, the present suit was barred under Order 2 Rule 2 of the Code. The suit was also bad for want of notice under Section 80 of the Code, despite the fact that there was no urgency. In view of these findings, the trial Court had dismissed the suit. While accepting the first appeal filed by the plaintiffs, learned lower appellate Court held that the entry made by the Kanungo and the Patwari in Rapat Roznamcha had no relevance as once the land had been given to the plaintiffs, all the trees standing there upon belonged to them. There was no question of any efficacious remedy available to the plaintiffs. R.S.A. No. 3097 of 2009 -4- Moreover, the defendants had not pleaded that the suit was barred under Order 2 Rule 2 of the Code nor any evidence led in respect thereof. Besides, at no point of time did the trial Court decline leave to the plaintiffs to institute suit without notice. Instead, learned trial Court proceeded to consider the matter. In view of these findings, the first appeal was accepted and the suit filed by the plaintiffs for declaration that they were owners of all the trees standing on the suit land was decreed with costs. The defendants were also restrained from claiming any right to any of the trees standing on the suit land. There is concurrent finding of fact arrived at by the learned Courts below that the plaintiffs-respondents were owners of the trees standing on the suit land. The defendants did not challenge the finding arrived at by the learned trial Court regarding the ownership of the trees standing on the suit land. They did not even file any cross-objections in the first appeal filed by the plaintiffs. They simply opposed the first appeal of the plaintiffs by asserting that the plaintiffs had equally efficacious remedy available to them and the suit was also barred under Order 2 Rule 2 of the Code. Moreover, the suit was bad for want of notice under Section 80 of the Code. After passing of judgment and decree dated 23.4.2005 in the earlier suit filed by the plaintiffs, the defendants failed to pay compensation to the plaintiffs by acquiring the land within the stipulated period of six months. This led to the plaintiffs applying for execution of the decree. The possession was duly delivered to the plaintiffs and the execution application thereafter dismissed as having been satisfied. At the time of delivery of the R.S.A. No. 3097 of 2009 -5- possession, Rapat No.319 dated 27.1.2007 was made by the Kanungo and the Halqa Patwari to the effect that 226 trees stood on the suit land. Such an entry regarding presence of 226 trees on the suit land did not establish that the trees belonged to the Forest Department. Once the land is held to belong to the plaintiffs, even the trees standing thereupon, would also belong to them. There was no requirement of availing of any other remedy by the plaintiffs, except for filing the present suit for declaration and consequential relief of permanent injunction. It is an admitted fact that neither the defendants pleaded in their written statement about the suit being barred under Order 2 Rule 2 of the Code nor they led any evidence thereupon. Therefore, the defendants cannot be heard saying that the suit filed by the plaintiffs was not maintainable. As regards the objection to the absence of prior notice under Section 80 of the Code, it was stated by the plaintiffs in their suit that the matter was of urgent nature as the officials of Forest Department had visited the land about 3/4 days prior to the filing of the suit and started claiming the trees, besides threatening to remove the same. Moreover, at no point of time the trial Court declined leave to the plaintiffs to institute the suit without notice. Under Section 80(2) of the Code, if the Court is satisfied that no urgent or immediate relief is needed to be granted in the suit, it shall return the plaint for presentation to it after complying with the R.S.A. No. 3097 of 2009 -6- requirement of issuing advance notice. No such order of rejection or return of the plaint was ever passed by the learned trial Court. Instead, it proceeded to consider the matter on merits. The current findings of facts arrived at by the learned Courts below regarding ownership of the trees standing on the suit land and also the findings arrived at by the learned lower appellate Court regarding maintainability of the suit are based on proper appreciation of the evidence led by the parties. These findings are not open to challenge in a second appeal, which lies on some substantial question of law and not otherwise. No question of law, much less substantial question of law, as pleaded by the defendants-appellants, arises for determination in the appeal Resultantly, the appeal is dismissed in limine. ( T.P.S. MANN ) August 24, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO