JUDGMENT

Nidhi Gupta, J. - Prayer in the present revision petition is for setting aside the order dated 4.9.2018 (Annexure P-12) passed by Additional District Judge, Kurukshetra whereby the application filed by respondents/defendants for permission for leading additional evidence has been allowed at the appellate stage.

2. Brief facts of the case are that the petitioners/plaintiffs instituted a civil suit dated 16.1.2013 for permanent injunction restraining the respondents/defendant nos. 1 and 2 from cutting and removing any trees from the land mentioned in para 1 of the plaint which is stated to be in the ownership and possession of the petitioners/plaintiffs. Vide judgment and decree dated 19.5.2015 (Annexure P-5) the said suit was decreed in favour of the petitioners/plaintiffs. Respondents filed C.A.No.316/2015 under Section 96 CPC against the said judgment and decree dated 19.5.2015, which is pending.

3. During pendency of this Civil Appeal, the respondents first filed application dated 22.9.2015 for appointment of Local Commissioner. However, vide statement dated 27.8.2018 the respondents withdrew this application. In the meantime, the respondents filed the present application dated 2.11.2015 for permission to lead additional evidence. It is this application which has been allowed wide impugned order dated 4.9.2018, whereby the Tehsildar, Shahbad (M) has been appointed as Local Commissioner to give a report specifically 'as to whether the disputed trees are standing in the suit land owned by plaintiffs or the same are standing in the land of road owned by PWD Government.' Hence, present revision petition.

4. It is submitted by the learned counsel for the petitioners/plaintiffs that first and foremost, the respondents' prayer to lead additional evidence cannot be allowed at the appellate stage, and their application having been filed at the appellate stage was not maintainable.

5. Learned counsel further refers to plaint to state that it has been the plaintiffs' positive averment in the plaint/ stand throughout, that father of plaintiff no.1 and grandfather of plaintiffs no. 2 and 3 namely Kartara Ram had planted Safeda trees along the Shahbad-Barara road 'in his land', as detailed in para 1 of the plaint. On an application moved by the plaintiffs for demarcation of their land, Tehsildar, Shahbad, had appointed Local Commissioner vide order dated 19.5.2012 namely Mr. Jagdish Chand, Halka Kanungo Shahbad(M) who gave notice to respondent/defendant department as well as PWD and SDO, PWD Shahbad, and vide demarcation report dated 2.1.2013 (Ex. P1/ Annexure P-3) reported that 181 Safeda trees and 1 Kikkar tree were found standing in the land owned and possessed by plaintiff no.1. It is further submitted that this report was passed in the presence of officials of the respondent department including Satpal Patwari and Ashok Kumar Rana Daroga of the Forest Department, however, they had refused to put their signatures on the memo of appearance. Further, despite the categoric finding recorded in report dated 2.1.2013, respondents/defendants were bent upon cutting the standing trees from the petitioners' land and accordingly petitioners filed civil suit dated 16.1.2013. Prayer in the civil suit was for permanent injunction restraining the defendants from cutting and removing any trees from the land owned and possessed by the plaintiffs forcibly and illegally which was decreed by trial Court vide judgment and decree dated 19.5.2015.

6. Learned counsel also refers to para 2 of the written statement filed by respondents in the suit and submitted that it has nowhere been stated by the respondents that the suit land is in their 'ownership'. In fact, in reply to the categoric assertion on behalf of the petitioners/ plaintiffs in this regard in para 2 of the plaint, the respondents have only replied that 'the trees and the land where the disputed trees are standing are in possession of the answering defendants since the time of plantation'. Acco