R.L. Khurana, J.—The appellants, hereinafter referred to as the plaintiffs, have preferred the present appeal against the judgment and decree dated 15.12,1999 of the learned District Judge, Nahan, affirming the judgment and decree dated 15.12.1998 of the learned Sub Judge 1st Class, Nahan, in Civil Suit No. 41/1 of 1997.

2. Briefly, the facts of the case may be thus stated. On 18.7.1991 a raid was conducted by the Enforcement Department in the cowshed of plaintiff No. 1, when he was found to be in possession of 137 scants of "Deodar. Such scants did not bear any hammer mark. Finding the plaintiff No. 1 to be in illegal possession of the timber, a case for the offences under Sections 379 and 420, Indian Penal Code, and under Sections 33, 41 and 42 of the Indian Forest Act, as applicable to Himachal Pradesh, came to be registered against plaintiff No. 1 vide FIR No. 57/91 at Police Station, (Enforcement), South Zone, Shimla. After necessary investigation, a final report under Section 173, Code of Criminal Procedure, was presented before the learned Judicial Magistrate 1st Class, Nahan, for the prosecution of plaintiff No. 1 Sunder Singh. The matter remained pending before the learned Judicial Magistrate for a period of more than five years without a formal charge having been framed, Following the dictum of the Apex Court in "Common Cause" A Registered Society through its Director v. Union of India and others [JT 1996 (4) SC 701], the learned Magistrate on 28.11.1996 dropped the proceedings against plaintiff No. 1 and ordered his discharge. While discharging the plaintiff No. 1, the learned Magistrate by raising the presumption under Section 69, Indian Forest Act, ordered the confiscation of the timber to the State. Such order was purportedly passed under Section 452, Code of Criminal Procedure. The order of confiscation was never assailed by the plaintiffs and/or proforma defendant No. 2 by way of an appeal.

3. While the case was still pending investigation, the State of Himachal Pradesh sought the auction of the seized timber while plaintiff No. 1 had sought the release thereof claiming the timber to be belonging to him. The learned Magistrate while declining the release of the timber in favour of plaintiff No. 1, ordered its sale by auction. The plaintiff No. 1 assailed the order of the learned Magistrate by way of a revision petition before the learned Additional Sessions Judge. Vide order dated 29.12.1992 the learned Additional Sessions Judge set aside the order of the learned Magistrate by holding that the learned Magistrate was having no jurisdiction to order auction of the seized timber. He further observed that the parties shall be at a liberty to seek their remedies, if any, before the appropriate forum in accordance with law.

4. The plaintiff No. 1, thereafter, approached the Authorised Officer under Section 52-A, Indian Forest Act as applicable to Himachal Pradesh, hereinafter referred to as the Act, for the release of the timber in his favour. The Authorised Officer on 9. L1994 refused to exercise jurisdiction in the matter on the ground that the seized timber was not produced before him as required under Section 52-A of the Act. The matter, therefore, rested there.

5. After the discharge of the plaintiff No. 1 on 28.11.1996 by the learned Magistrate and as a result, of the order of confiscation of timber, the plaintiffs filed the suit, out of which the present appeal has arisen, seeking declaration to the effect that they alongwith proforma defendant No. 2 are owners of 137 scants of seized timber. As a consequential relief, a decree for mandatory injunction was claimed for directing defendant No. 1 to hand over the seized timber to them. In claiming ownership qua the seized timber it was averred that the same was obtained by them from the Forest Department in exercise of their T.D. rights. The scants after conversion had been kept stored by them in the cattle shed of plaintiff No.1.

6. Proforma defendant No. 2