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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
M.C. Shimla – Appellant
Versus
Sh. Mathu Ram and Another – Respondents
RSA No. 59 of 2008
Decided On : 22-04-2017
Timber - Property Rights - Forest Conservation Act, 1980, Section 2, Section 3 - The court discussed the ownership and possession of the land and trees, the demarcation reports, and the transfer of possession of the timber. The key legal provisions discussed were the Forest Conservation Act, 1980, particularly Section 2 and Section 3, which define the restrictions on the use of forest land and the transfer of forest produce.
Fact of the Case:
The plaintiff filed a civil suit seeking permanent prohibitory injunction against the defendants from removing timber from his land. The trial court dismissed the suit, but the appeal court decreed the suit in favor of the plaintiff.
Finding of the Court:
The court found that the plaintiff was the owner and possessor of the land and trees in question, and the defendants had failed to prove any right, title, and interest in the timber. The court upheld the judgment and decree for permanent prohibitory injunction in favor of the plaintiff.
Issues: The issues involved the ownership and possession of the land and trees, the transfer of possession of the timber, and the effect of the Forest Conservation Act, 1980 on the case.
Ratio Decidendi: The court held that the plaintiff's ownership and possession over the disputed timber were proved, and the defendants failed to prove any right, title, and interest in the timber. The court also emphasized the importance of evidence in supporting pleadings and the need for proof to establish claims.
Final Decision: The appeal was dismissed, and the judgment and decree passed by the learned District Judge for permanent prohibitory injunction restraining the defendants from removing the timber in question from the land of the plaintiff was upheld.
Vivek Singh Thakur, J.
Respondent No. 1 in present appeal (herein after referred to be as plaintiff) has filed a civil suit against appellant Municipal Corporation, Shimla and proforma respondent No. 2 Divisional Forest Officer, Forest Division Shimla (herein after referred to be as defendants/defendants No. 1 and 2) seeking permanent prohibitory injunction restraining defendants from taking away timber or any part of converted from deodar tree felled illegally from his land comprised in Khasra No. 1164 situated in Mauja Khalini Shimla. The suit was dismissed by the trial Court however, in appeal, learned District Judge decreed the suit with costs by passing a decree for permanent prohibitory injunction restraining defendants from removing wood from the suit land either themselves or through their agents.
2. In present appeal, defendant No. 1, Municipal Corporation, Shimla assailed judgment and decree passed by learned District Judge (Forest), Shimla. Appeal was admitted on following substantial questions of law:-
“1. Whether after taking over the management of Divisional Forest Office of the Municipal Corporation by the H.P. State Govt. vide Notification dated18.4.2006, the impugned judgment and decree could legally be passed?
2. Whether decree for permanent prohibitory injunction can be passed without there being positive finding regarding possession of the suit property?”
3. Plaintiff is owner in possession of land comprised in Khasra No. 1164 situated in Mauja Khalini, District Shimla, H.P. as recorded in Intkhab Jamabandi Missal Haquit for the year 1999-2000 (Ex. PW-1/A). On 20.12.2000 he submitted an application (Ex. PW-1/B) to defendant No. 2 for felling permission of two dried deodar trees situated in his land which were endangering life and property of plaintiff and others. Defendant No. 2 vide letter dated 3.3.2001 (Ex. PW-1/C), informed plaintiff that trees in question were in forest No. 28 and had been duly marked by the department and plaintiff was directed to get the spot demarcated through revenue officers on any working day to clarify the position on spot. On application of plaintiff for demarcation, PW-2 Krishan Lal Kanungo carried out demarcation on the spot in presence of DW-1 Mela Ram, Deputy Ranger of Municipal Corporation, Shimla and found the trees in question in land comprised in Khasra No. 1164, owned and possessed by plaintiff. He submitted his demarcation report dated 27.3.2001 (Ex. PW-2/A). However, defendants did not accept the said report for the reason that PW-2 Krishan Lal Kanungo was not competent to demarcate the land in question, as there was a boundary dispute about land owned by Government.
4. Plaintiff was out of station from 1.8.2002 to 12.8.2002 and during that period defendants felled trees in question, which were noticed by plaintiff on 13.8.2002 on his return, whereupon plaintiff filed present suit for permanent prohibitory injunction against defendants for restraining them to remove the timber from the spot. On 19.8.2002, timber of trees was converted into logs in presence of plaintiff and list was prepared.
5. During pendency of appeal, on application dated 8.10.2003, submitted by defendants, demarcation of land in question was again carried out by Assistant Collector 1st Grade, Shimla in presence of plaintiff, Sh. Laiq Ram, Range Officer and DW-2 Sh. Mela Ram Deputy Ranger, representatives of defendants. Report of this demarcation is Ex. PX, according to which trees in question were found inside Khasra No. 1164 owned and possessed by plaintiff. Satisfaction of representatives of defendants and also that of plaintiff Mathu Ram was also recorded in the said report. This demarcation report was not questioned by parties at any point of time.
6. Defendants disputed ownership of trees by claiming those trees in forest area and disputing demarcation report Ex. PW-2/A for want of competence of PW-2 Krishan Lal Kanungo to demarcate the land abutting to Government land and contended that d
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