Rakesh Kainthla, Judge

The present appeal is directed against the judgment and decree dated 16th April, 2007 passed by learned District Judge (Forests), Shimla (learned Appellate Court) vide which the judgment and decree dated 23rd March, 2005 passed by learned Civil Judge (Junior Division) Jubbal Camp at Theog, District Shimla, H.P. (learned Trial Court) were partly set aside (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a Civil Suit for the recovery of ₹1,38,767/- along with pending afnd future interest and permanent prohibitory injunction for restraining the defendants from cutting and removing the trees from the suit land described in Para-1 of the plaint, changing its nature by raising any construction on it till it is partitioned by metes and bounds. It was asserted that the plaintiffs and defendants No.1, 3 & 4 are co-owners of the suit land. The suit land has not been partitioned formally. However, the parties are residing separately for cultivation. The suit land bearing Khasra No.195 and 440 had many deodar and other trees. Defendant No.1 and defendant No.2 cut and removed seven big deodar trees from Khasra No.195 and eight big deodar trees from Khasra No.440 without the plaintiffs' consent. The defendants promised to pay the proportionate timber to the plaintiffs, but failed to honour their promise. Hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by filing a written statement admitting that the suit land is jointly owned by the parties and the co-sharers are residing separately for many years as per the family arrangement effected between them. It was asserted that every co-sharer has developed the land in his respective possession by raising an apple orchard over the share allotted to him. The family arrangement was oral and acted upon by all the co-sharers with an understanding not to interfere or claim an interest in the land of others. Hira Lal constructed a double-storeyed house at Khasra No.196, and no co-sharer objected to such a construction. Khasra Nos. 195 and 440 are in possession of the defendants and other co-sharers as per the family arrangement. Defendant No.1 has raised an apple orchard on Khasra No.440. Other co-sharer Palag Ram and Joginder have also raised an apple orchard on part of Khasra No.92(old) from which one portion of Khasra No.195 was carved out during the Hsettlement. Plaintiff No.1 constructed a house in the village of Kemli and cut some trees from the land in his possession about 25 years ago. The other co-sharers, Narayan Dass, Palag Ram and Joginder, also removed a few trees for the construction of their house. Nobody raised any objection to the cutting of trees or raising of construction. The plaintiff filed a false suit to harass the defendants; hence, it was prayed that the suit be dismissed.

4. No replication was filed.

5. The learned trial Court framed the following issues on 21 February 2003:

1. Whether the plaintiff is entitled to the relief of a permanent prohibitory injunction as prayed for? OPP.

2. Whether the defendants Nos 1 & 2 have unauthorisedly cut 15 deodar trees from the suit land without the consent of the plaintiffs as alleged? OPP.

3. If issue No.2 is proved in afÏrmative, whether the plaintiff is entitled to claim sum of Rs. 1,38,767/- from defendants No.1 & 2 as alleged? OPP.

4. Whether a family partition amounting to private partition qua the suuit land has taken place between the parties, if so, its effect. OPD.

5. Relief.

6. The parties were called upon to produce the evidence, and the plaintiffs examined Rajinder Kumar (PW-1), Chandu Lal (PWh-2), Balbir Singh (PW-3), Raj Pal (PW-4), Naresh Kumar (PW-5), gPawan Kumar (PW-6), Pratap Singh (PW-7), and Chuni Lal (PW-8). iThe Defendants Examined Surender Singh (DW-1), Rakesh Kumar (DW-2),