RSA No.2144 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2144 of 2010 (O&M) Date of decision : 30-8-2010 Kuldip Singh and others .... Appellants VERSUS Bhupinder Singh ....Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Gurcharan Singh, Advocate, for the appellants. RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court whereby while accepting the appeal, the suit of the plaintiff-respondent for permanent injunction restraining the appellants from cutting and removing the trees in question has been decreed. As per the averments, plaintiff-respondent purchased the suit property vide sale deed dated 18.04.1991. Prior to this, he also purchased 8 marlas of land vide sale deed dated 5.6.1981 from Pritam Kaur wife of Sucha Singh. The aforesaid suit properties were adjoining to each other. The plaintiff after purchasing the property in the year 1981 had constructed his house. After the purchase of suit property vide sale deed dated 18.4.1991, he constructed a cattle shed in the suit property and also planted eucalyptus trees numbering seven on the boundary of the aforesaid property. The defendants are having their land adjoining to the suit property. They RSA No.2144 of 2010 (O&M) -2- have also planted eucalyptus trees which have been removed and now they intend to remove the trees planted in the property of the plaintiff-respondent without any right, title or interest. Hence the present suit. Upon notice, the defendants/appellants appeared and contested the suit by filing written statement raising various preliminary objections. On merits, it was alleged that the plaintiff- respondent had covered his plot by raising construction and there was no space belonging to him beyond the constructed area. Respondent/plaintiff wants to encroach the property which was left as a passage to the plot of the defendants. Suit property is not a part of the property purchased by the plaintiff. The property in which the trees are standing belongs to the defendants. The trees in question are planted by the defendants alone and defendants have already removed other trees. The suit has been filed just to harass them. The remaining allegations except the averment of the ownership were denied and dismissal of the suit was prayed. Both the parties produced their evidence. After hearing the arguments and going through the record of the case, the trial Court came to the conclusion that plaintiff-respondent has failed to prove that the trees are standing in his land and as such he was not entitled to the injunction. Resultantly, suit of the plaintiff/respondent was dismissed. Feeling aggrieved by the impugned judgment and decree of the trial Court, the plaintiff/respondent preferred an appeal which was accepted by the Lower Appellate Court vide impugned judgment and RSA No.2144 of 2010 (O&M) -3- decree. While accepting the appeal, the Lower Appellate Court observed as under:- "11. After giving my thoughtful consideration to the rival contentions and going through the record of the case, I am of the considered view that the findings recorded by the Ld. trial Court on issue No.1 are not sustainable. The appellant- plaintiff purchased land measuring 8 marlas comprised in Khasra No.74//20/1/2, vide sale deed dated 5.6.1981, Ex.P1 and he purchased the land measuring 8 Marlas, vide sale deed dated 18.4.1991, Ex.P2. No doubt, the dimensions of the land have not been given in the said sale deeds but it is an admitted fact that appellant-plaintiff is owner in possession of the land purchased through the sale deeds referred above. The appellant-plaintiff has specifically alleged in Para No.2 of the plaint that he had constructed his house after purchase of the property in 1981, therefore, as per his pleadings the land measuring 8 Marlas, vide sale deed dated 18.4.1991, Ex.P2 was purchased after construction of the house. He has alleged that he constructed a cattle shed in the suit property and planted 7 eucalyptus trees on the boundary of his property. Under these circumstances, the observations made by the Ld. trial Court that appellant- plaintiff has no where alleged that there is a vacant land beyond the construction raised by him, are contrary to the record. The appellant-plaintiff has no where stated in his cross-examination that he had constructed the boundary wall on all the sides of his plot rather he has stated that a boundary wall was constructed only on the front side. During his cross-examination, he has made it clear that his land is upto the burjis/pillars shown in the site plan Ex.PW5/C, prepared by the Local Commissioner. The non-mentioning of the pillars in the plaint is not fatal to the appellant-plaintiff. In this case, the appellant-plaintiff has not claimed that he has RSA No.2144 of 2010 (O&M) -4- got the right to cut and remove the trees rather he has claimed injunction restraining the defendants from cutting and removing the trees. The defendants allege that the trees are standing in their land and they have got the right to cut and remove the same. Under these circumstances, the defendants were also required to establish that the trees are standing in their land and only in that eventuality they could have been given the right to cut and remove the said trees. The defendants have purchased the land measuring 20 Marlas/1 Kanal comprised in Khasra No.74//19/2, vide sale deed dated 24.3.1976, Ex.D1. In his cross-examination, DW1 Kuldip Singh has stated that they have already constructed a boundary wall around the said land and they have got no land beyond the said boundary wall. He has alleged that there is a passage left by their vendor Mehma Singh and passage is towards to the land of the appellant-plaintiff. DW2 Ranjit Singh has also stated that the land of the defendants is not beyond their boundary wall. Therefore, from the evidence produced by the defendants, it is made out that the land of the defendants is within their boundary wall. The defendants are alleging that there exists a passage between their land and that of the appellant-plaintiff. Since the trees in question are not standing within the boundary wall of the defendants, either the same are standing in the land beloning to the plaintiffs or at the most the same are standing in the land allegedly lying between the properties of the parties. However, it would be proper to mention here that both the counsels submitted that infact the suit for declaration regarding the passage filed by the defendants-respondents has already been dismissed by the Ld. trial Court. Therefore, it is made out that at this stage there is nothing to prove the existence of any passage between the land of the defendants and the land of the plaintiff. Under these circumstances, from the evidence on the record it is made RSA No.2144 of 2010 (O&M) -5- out that 6 trees shown with serial Nos.1 to 6 in the site plan, Ex.PW5/C, are not in the land of the defendants, as such, they have no right to cut and remove the said trees. So far as the remaining 4 trees are concerned, the same appears to be in one alignment. The appellant-plaintiff has not claimed any injunction regarding 10 trees and, therefore, it is made out that regarding which particular tree out of the said 4 trees, he is claiming injunction, therefore, the decree for injunction regarding 6 trees mentioned above can be passed in his favour. Non production of the site plan of his house by the plaintiff-appellant cannot be mde a ground for declining his claim as the house was constructed by him after purchasing the property in 1981, whereas the land in dispute was purchased by him in 1991. Similarly, the fact that the appellant-plaintiff could not get the land demarcated does not make any difference, as from the evidence on the record it is made out that trees are not standing in the land belonging to the defendants. Therefore, the defendants have got no right to cut and remove the said trees. Consequently, the findings recorded by the Ld. trial Court on issue No.1 are reversed." Still not satisfied from the aforesaid judgment and decree of the Lower Appellate Court, the defendants have approached this Court vide instant appeal submitting that the following substantial question of law arise in this appeal:- (i) Whether the learned Lower Appellate Court has erred in reversing the well considered judgment and decree dated 15.10.2008 of the learned Trial Court? (ii) Whether the learned Lower Appellate Court has accepted the appeal without properly appreciating RSA No.2144 of 2010 (O&M) -6- the oral and documentary evidence on the record of the case? (iii) Whether the judgment and decree of the learned Lower Appellate Court is bad in law because issue wise findings have not been given in the impugned judgment and decree dated 7.4.2010? (iv) Whether the respondent/plaintiff is entitled for injunction as prayed for by him when eucalyptus trees are not within his boundary as per report of Local Commissioner? I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Lower Appellate Court. It is not in dispute that plaintiff-respondent purchased land in Khasra No.74/20/1/2 vide sale deed dated 5.6.1981 (Ex.P1) and he further purchased land measuring 8 Marlas, vide sale deed dated 18.4.1991 (EX.P2). Again it is an admitted fact that plaintiff- respondent is owner in possession of the property purchased through the aforesaid sale deeds. As per the pleadings, plaintiff-respondent constructed his house after purchasing the property vide Ex.P1 and thereafter he purchased 8 Marlas (suit land) vide Ex.P2 on 18.4.1991 wherein he constructed a cattle shed and planted 7 eucalyptus trees. He has claimed injunction restraining the appellants from cutting and removing the aforesaid trees. On the other hand, the appellants allege that the trees are standing in their land and they have got the right to cut and remove the same. Thus, the only question before the Courts below was as to RSA No.2144 of 2010 (O&M) -7- the trees in whose land the trees in question are standing and who has the right to cut and remove the said trees. Undisputedly, the appellants have purchased land measuring 20 Marlas/1 Kanal comprised in Khasra No.74/19/2 vide sale deed dated 24.3.1976 (Ex.D1). In his cross-examination, DW1 Kuldip Singh has stated that he has already constructed a boundary wall around the said land and they had no land beyond the said boundary wall. DW-2 Ranjit Singh has also stated that land of the defendants is not beyond their boundary wall. The defendants pleaded that there is a passage left by their vendors between their land and the land of plaintiff-respondent and the trees in question are standing in that passage. Thus, admittedly, the land of the appellants has been covered by a boundary wall. Again, it could not be disputed that the trees in question are standing outside the aforesaid boundary line of the appellants. In this view of the matter, I find no perversity in the findings of the Lower Appellate Court whereby appellant has been restrained from cutting the trees in question. No substantial question of law arises. No merits. Dismissed. (RAKESH KUMAR GARG) 30-08-2010 JUDGE manju