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2002 DIGILAW 217 (HP)

RAJESHWAR SINGH v. STATE OF H. P.

2002-08-07

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The plaintiffs in the present suit have prayed for the following reliefs:— (a) a decree for rendition of accounts in respect of the trees felled and sold by the defendants from the land belonging to the plaintiffs; (b) a decree for such amount as may be found due to the plaintiffs after rendition of the accounts towards the value of the trees along with interest at the rate of 12% per annum from the date of realisation of the amount by the defendants till the payment is made to the plaintiffs; and (c) In the alternative, a decree for a sum of Rs. 2,20,50,243 with costs and interest at the rate of 12% per annum from the date of suit, that is, 20.7.1991 till the date of payment. 2. The present suit was initially filed by Rajkumar Rajinder Singh son of late Raja Sir Padam Singh, who died during the pendency of the suit. The present plaintiffs are the son, daughters and widow of the deceased plaintiff Rajkumar Rajinder Singh. 3. The admitted facts of the case may be thus stated. The deceased plaintiff Rajkumar Rajinder Singh was the second son of late Raja Padam Singh, the ex-ruler of the then Bushahr State. On 18.11.1964 he filed a suit, being Civil Suit No. 11 of 1967 before the Delhi High Court, which was then exercising jurisdiction over the areas forming the then Union Territory of Himachal Pradesh for a declaration of his proprietary rights in about 1720 acres of forest land situate in Khata Nos. 1 and 2, Khatauni Nos. 1 to 25 comprising of 106 plots, both measured and unmeasured, bearing khasra Nos. 1, 2, 6, 23, 30, 34, 44, 108, 218, 222, 309, 341, 409, 479, 606, 433, 241, 732/280, 736/394 and 728/402 of Chak Addu, Tehsil Rampur (as detailed in the jamabandi for the year 1960-61) of the then District Mahasu and now District Shimla, by tracing his title to the said land to a "Patta" executed by his father on 28.11.1942 and also to the order No. 5158 of the said date directing the corresponding changes in the mutation. In such suit Messrs. Chaudhary Gopal Singh and Company, forest contractors, was impleaded as proforma defendant No. 3. However, no relief was claimed against it. The suit was partly decreed by a learned Single Judge of the Delhi High Court on 6.4.1970. In such suit Messrs. Chaudhary Gopal Singh and Company, forest contractors, was impleaded as proforma defendant No. 3. However, no relief was claimed against it. The suit was partly decreed by a learned Single Judge of the Delhi High Court on 6.4.1970. The plaintiff was declared and held to be the owner of the land comprising of khasra Nos. 1, 2, 6, 23, 30, 34, 44, 108, 218, 222, 309, 341, 409, 479, 606, 4 and 33 out of the land in dispute. The claim of the plaintiff with regard to the remaining land comprising of khasra Nos. 241, 732/280, 736/394 and 728/402 was declined. It was further directed that the declaration granted in favour of the plaintiff "shall in no way affect the application of Section 27 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, if that may otherwise be applicable to the plaintiffs land." 4. The contesting defendants No. 1 and 2, aggrieved by the judgment and decree dated 6.4.1970 preferred an appeal, being Regular First Appeal No. 7 of 1970 before the Division Bench of this Court. Such appeal was allowed on 31.12.1977. The Honble Division Bench came to the conclusion that the grant made by the erstwhile Ruler was in respect of revenue yielding lands only admeasuring about 263.4 Bighas and not in respect of the forest lands. It was also of the view that after the execution of the lease deed dated 25.9.1942 in favour of the Government of Punjab, Raja Padam Singh had no subsisting right in the forest lands in question and as such the same could not have been transferred by him by way of grant. As a result, the suit of the plaintiff was dismissed in toto by the Division Bench. 5. The plaintiff then went up in appeal before the Honble Supreme Court, being Civil Appeal No. 2966 of 1979. The Honble Supreme Court on 20.7.1990 allowed the appeal of the plaintiff. The judgment and decree dated 31.12.1977 of the Division Bench of this Court were set aside. It was observed:— "In the result this appeal must succeed. We allow the appeal and set aside the judgment and decree of the Division Bench of the High Court. The Honble Supreme Court on 20.7.1990 allowed the appeal of the plaintiff. The judgment and decree dated 31.12.1977 of the Division Bench of this Court were set aside. It was observed:— "In the result this appeal must succeed. We allow the appeal and set aside the judgment and decree of the Division Bench of the High Court. We would have been inclined to restore the decree of the Trial Court but counsel for the appellant-plaintiff made a statement at the bar that in view of provisions of the Himachal Pradesh Ceiling on Land Holdings Act, 1972, the question of granting such a declaration does not survive." (Emphasis supplied) 6. It appears that during the period 1980 to 1985 notwithstanding the interim order dated 17.10.1979 of the Honble Supreme Court passed in the above referred to appeal, the Forest Department of the State Government (defendant No. 1 in the present suit) had felled and sold about 10.505 trees from the land in question. Before, the Honble Supreme Court during the course of hearing of the appeal a claim was raised by the plaintiff for the refund with interest of the value of 10,505 trees alleged to have been felled and sold by the defendant No. 1 acting through its Forest Department. Declining the relief, the Honble Supreme Court in its judgment dated 20.7.1990 [reported as Rajkumar Rajinder Singh v. State of Himachal Pradesh and others, (1990) 4 SCC 320] observed:— "The appellant-plaintiff has also claimed a refund with interest of the market value of trees totalling KT,505 cut and sold by the Forest Department during the period from 1980 to 1985 notwithstanding the order of this Court dated October 17, 1979. However, in view of the fact that Himachal Pradesh Ceiling on Land Holdings Act, 1972 has since intervened we do not entertain this claim in the present proceedings. The refusal to entertain this claim will not debar the plaintiff from seeking any relief that is available to him under the 1972 Act." 7. After the decision in appeal by the Honble Supreme Court, referred to above, the plaintiff has filed the present suit on 20.7.1991 claiming the reliefs as detailed above. Initially the suit was only for rendition of account and for the grant of decree in respect of such amount as may be found due to the plaintiff after rendition of accounts. After the decision in appeal by the Honble Supreme Court, referred to above, the plaintiff has filed the present suit on 20.7.1991 claiming the reliefs as detailed above. Initially the suit was only for rendition of account and for the grant of decree in respect of such amount as may be found due to the plaintiff after rendition of accounts. Subsequently, the alternative relief for the recovery of Rs. 2,20,50,243 came to be added by way of amendment. 8. Claiming himself to be the owner of the land in question, the plaintiff has averred that the Honble Supreme Court in Civil Appeal No. 2966 of 1979 on 17.10.1979 had directed the parties to maintain status quo qua the land in question. In spite of such order of the Court, the defendants had felled and sold 10,505 trees from the land in dispute up to the year 1987-88. The plaintiff was not in a position to know the value received by the defendants in respect of the trees felled and sold and as to what expenditure was incurred by them in respect of the trees felled and sold. The defendants have failed to render accounts to the plaintiff in spite of repeatedly having been called upon to do so by the plaintiff. In the absence of accounts, which were in possession of the defendants, the plaintiff was not in a position to claim a specific amount even on rough estimate, towards the value of the trees felled and sold by the defendants. Thus, the plaintiff claimed rendition of accounts by the defendants and for a decree of such amount as might be found payable to him after rendition of accounts. 9. After the evidence of the parties concluded, since the plaintiff, on the basis of evidence led by the defendants, was able to ascertain a part of his claim that he amended his plaint by incorporating a specific relief, as an alternative relief, for an alternative relief, for a decree for recovery of a specific amount of Rs. 2,20,50,243 as the cost of the trees felled and sold by the defendants. 10. The defendants while resisting the suit admitted the previous litigation between the parties. 2,20,50,243 as the cost of the trees felled and sold by the defendants. 10. The defendants while resisting the suit admitted the previous litigation between the parties. It was pleaded that the plaintiff himself in his return furnished under the Himachal Pradesh Ceiling on Land Holdings Act, 1972 (for short: the Ceiling Act) had included the land in dispute for being declared as surplus and as such the same came to be vested in the State defendant with effect from 24.1.1971, that is, the appointed day under the Ceiling Act. It was further pleaded that "private forests" are included within the definition of "land" under the Ceiling Act, therefore, the plaintiff would be entitled to such compensation as may be determined under the provisions of the said Act. Civil Court has no jurisdiction to go into such question by virtue of Section 18 of the Ceiling Act. The land in dispute has come to be declared as surplus by the Sub Divisional Collector vide his order dated 10.11.1993. It was also pleaded that no tree was felled by the defendants. In fact only salvaged trees were removed from the land in question in order to preserve the forests. The defendants denied having felled and sold 10,500 trees as claimed by the plaintiff. Liability to render accounts was denied by the defendants. It was pleaded that the defendants were not under any legal obligation to render the accounts nor there existed any relationship between the parties by virtue of which the defendants could be called upon and/or directed to render the accounts. The defendants also denied their liability to the extent of Rs. 2,20,50,243 as claimed by the plaintiffs. Objection as to maintainability of the suit and suit being barred by limitation were also raised. 11. On the pleadings of the parties, following issues were framed on 27.7.1992 and 17.3.1993:— 1. Whether the suit, as framed, is not maintainable? OPD. 2. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD. 3. Whether this Court has no jurisdiction to try the suit in view of the provisions of H.P. Ceiling on Land Holdings Act, 1972, as alleged? OPD. 4. Whether the suit is barred by limitation? OPD. 5. Whether the land in dispute has vested in the State of Himachal Pradesh, as alleged? OPD. 6. OPD. 3. Whether this Court has no jurisdiction to try the suit in view of the provisions of H.P. Ceiling on Land Holdings Act, 1972, as alleged? OPD. 4. Whether the suit is barred by limitation? OPD. 5. Whether the land in dispute has vested in the State of Himachal Pradesh, as alleged? OPD. 6. Whether the plaint lacks material particulars as alleged in preliminary objection No. 47. If so, its effect? OPD. 7. Whether the plaintiff is entitled to recover the value of 10,500 trees alleged to have been felled by the defendants? OPP. 8. If issue No. 7 is proved, whether the plaintiff is entitled to recover interest on the value of 10,500 trees alleged to have been felled by the defendants? OPP. 8-A. Whether the plaintiff is entitled to a decree for rendition of accounts, • if so, who is the accounting party? OPP. 9. Relief. 12. I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under:— Issue No. 2. 13. This issue does not survive in view of the amendment of the plaint where relief for recovery of Rs. 2,20,50,243 was added as alternative relief and appropriate court fee having been affixed by the plaintiffs on the amended plaint. Besides, this objection as to valuation of the suit for the purpose of court fee and jurisdiction was given up by the defendants inasmuch as no such objection was raised in the written statement dated 3.4.2000 filed to the amended plaint. Issue No. 6. 14. It was contended on behalf of the defendants that the plaint lacks material particulars and as such the same is liable to be rejected. According to the learned Counsel for the defendants in view of clause (e) of Rule 1 of Order VII, Code of Civil Procedure, it was incumbent upon the plaintiff to set out in the plaint the facts constituting the cause of action and when it arose. Since in the present case the plaintiff has nowhere averred as to when the cause of action arose, the plaint is bad and is liable to be rejected under Order VII, Rule 11, Code of Civil Procedure. 15. Since in the present case the plaintiff has nowhere averred as to when the cause of action arose, the plaint is bad and is liable to be rejected under Order VII, Rule 11, Code of Civil Procedure. 15. In Kuldeep Singh v. Ganpat Lai and another, (1996) 1 SCC 243, it has been held by the Honble Apex Court that the object underlying Rule l(e) of Order VII, Code of Civil Procedure, which requires that the plaint , shall contain the particulars about the facts constituting the cause of action and when it arose, is to enable the Court to find oaf whether the plaint discloses cause of action because the plaint is liable to be rejected under Order VII, Rule 11, Code of Civil Procedure, if it does not disclose the cause of action. The purpose behind the requirement that the plaint should indicate when the cause of action arose is to help the court in ascertaining whether the suit is not barred by limitation. An error in mentioning the date on which the cause of action has arisen in the plaint would not disentitle the plaintiffs from seeking the relief from the Court in the suit. 16. In view of the above said ratio, the omission on the part of the plaintiffs to mention the date on which the cause of action had arisen is of no consequence since reading the plaint as a whole it is apparent that facts constituting the cause of action have been elaborately stated. The issue is decided against the defendants. Issue No. 4. 17. The present suit has been filed on 20.7.1991. It has been averred in para 3 of the plaint as under:— ".....that Forest Department had felled certain trees from the period 1980 to 1985 notwithstanding the orders of the Honble Supreme Court dated 17th October, 1979 and the Honble Supreme Court had ordered that the plaintiff could seek any relief in separate proceedings, if available to him under the 1972 Act." (Emphasis supplied) 18. In para 4 of the plaint, it has further been averred as under:— “That the brief facts are that vide stay order granted by the Honble Supreme Court of India on 17th October, 1979, the status quo was ordered and a Civil Miscellaneous Petition was filed before the Honble Supreme Court of India to the effect that State of Himachal Pradesh and its authorities had felled many trees in spite of stay orders. In reply to the aforesaid Miscellaneous Petition No. 34690/ 84, the Honble Supreme Court of India had directed the State of Himachal Pradesh not to fell any more trees on the area forming subject matter of the dispute in appeal. However, later on when an application was moved to the effect that the authorities of the Himachal Pradesh State Government had felled many trees, Shri. B.S. Chauhan, I.F.S., the then Conservator of Forests, Rampur Circle, filed an affidavit before the Honble Supreme Court of India giving details of the trees which had been felled. It was alleged that trees of the value of Rs. 9,69,526.73 had been felled and allotted to Saw Mill owners and the Himachal Pradesh State Forest Corporation from the area in dispute from the year 1980-81 to 1983-84. However, in the counter-affidavit filed by Shri Surat Ram Jhingta, Attorney of the plaintiff, it was specifically mentioned that total volume of trees felled from 1980 to 1984 was 10,500 standing trees. The list of the aforesaid trees is annexed hereto to this plaint along with copy of affidavit of Shri Surat Ram Jhingta. Thereafter also some trees were felled up to the year 1987-88, a list of which is separately given as enclosed with this plaint..." 19. PW 13 Shri Surat Ram, the attorney of the plaintiff in his examination in chief has deposed:— "Defendants got the trees felled from the land in question during the period 1980-1984 and 1991-92." PW 13 is silent as to the alleged felling of trees by the defendants during 1987-88, as averred in para 4 of the plaint (quoted above). In the present suit no claim has been laid in respect of the trees alleged to have been felled in the year 1991-92. Thus, the claim laid in the present suit can be said to be only in respect of the trees alleged to have been felled during the years 1980 to 1984. 20. In the present suit no claim has been laid in respect of the trees alleged to have been felled in the year 1991-92. Thus, the claim laid in the present suit can be said to be only in respect of the trees alleged to have been felled during the years 1980 to 1984. 20. The present suit would be governed by Article 113 of the Limitation Act, 1963, which provides for a period of limitation of three years beginning from the date "when right to sue accrues" to the plaintiff. 21. The right to sue in the present case had accrued to the plaintiff immediately on the alleged felling of trees by the defendants in the years 1980 to 1984. 22. It was contended on behalf of the plaintiff that the right to sue accrued to the plaintiff only on 20.7.1990 when the previous litigation as to the title of the plaintiff was finally decided by the Honble Supreme Court. According to the learned Counsel for the plaintiff, though the plaintiff was declared to be the owner of the land in question in Civil Suit No. 11 of 1967 vide judgment and decree dated 6.4.1970, such judgment and decree came to be set aside in appeal by a Division Bench of this Court on 31.12.1977. An appeal carried by the plaintiff before the Honble Supreme Court against the judgment and decree dated 31.12.1977 was pending at the time of the felling of the trees by the defendants. Since the very title of the plaintiff was in dispute during 1980 to 1984 when the felling of trees had taken place and in view of the fact that title of the plaintiff came to be determined only on 20.7.1990 when the appeal filed by the plaintiff was ultimately decided in his favour by the Honble Supreme Court, the cause of action would be deemed to have arisen to the plaintiff only on 20.7.1990 and calculating the period from such date, the suit of the plaintiff is within time. 23. There is no force in the contention of the learned Counsel for the plaintiff and the same is liable to be rejected a straightway. Section 9 of the Limitation Act, 1963, provides that once time has begun to run, no subsequent disability or inability to institute a suit stops it. 24. 23. There is no force in the contention of the learned Counsel for the plaintiff and the same is liable to be rejected a straightway. Section 9 of the Limitation Act, 1963, provides that once time has begun to run, no subsequent disability or inability to institute a suit stops it. 24. In Kunwar Muhammad Ubaid Ullah Khan v. Kunwar Muhammad Abdul Jalil Khan, AIR 1937 Allahabad 481, the plaintiff therein on having been found entitled to the properties in dispute was granted a decree for possession of such properties on 17.6.1929. Thereafter he filed a suit on 17.6.1932 claiming mesne profits from the defendants for the years 1916 to 1929. No mesne profits were claimed for the period of three years preceding the suit. The main defence of the defendant therein was that the suit was wholly barred by time. It was contended on behalf of the plaintiff that the cause of action did not arose in their favour until 17.6.1929 when his appeal was allowed and possession of the properties was decreed. It was further contended that the cause of action arisen earlier, if any, remained suspended till the decision dated 17.6.1929 inasmuch as the title to the properties was in dispute. 25. Repelling the contention, a Division Bench of the Allahabad High Court held that once the period of limitation has begun to run, it cannot be suspended unless such suspension is provided for expressly in the Limitation Act. It was further held that the period of limitation in that case was not suspended as there was no provision in the Limitation Act suspending limitation in the circumstances similar to those existing in that case. The defendant therein had wrongfully received the rents and profits of the properties from the year 1916 and as such time began to run against the plaintiff from the date when he actually received the rents and profits. The suit of the plaintiff was, therefore, dismissed as being time barred. 26. In Mian Feroz Shah v. Mohammad Akbar Khan, AIR 1939 PC 178, one S executed a mortgage in respect of certain properties with possession in favour of the plaintiff therein the year 1917. Possession of the mortgaged property was, however, not taken and the same were leased out to the mortgagor for the term of the mortgage at a rent which represented the interest on the mortgage amount. Possession of the mortgaged property was, however, not taken and the same were leased out to the mortgagor for the term of the mortgage at a rent which represented the interest on the mortgage amount. In 1920, the defendant therein, who had obtained a money decree against the mortgagor, got such mortgaged property attached in execution of the decree. A receiver was appointed in defendants execution proceedings by the Revenue Court. The receiver was delivered the possession of such property in 1927. In 1928 the receiver leased out the property to certain persons for a term of one year but the same was continued from time to time. In 1929, the plaintiff brought a suit against the mortgagor, the defendant and the lessees for a declaration that the property in question was not liable to attachment at the instance of the defendant and for possession by ejectment of the receiver. In such suit, no claim for damages was made against the defendant in respect of the possession taken by the receiver. The suit was ultimately decreed by the Privy Council in 1933 declaring the plaintiff to be entitled to possession. In 1933 the plaintiff brought another suit against the defendant alone. It was therein alleged that the defendant who had obtained a decree against the mortgagor in Revenue Court, had obtained the attachment of the property without caring to find out whether such property was attachable or not and without reserving the right of the plaintiff as mortgagee of such property. This, the plaintiff alleged, was illegal for which the defendant was liable to pay to the plaintiff a sum equivalent to the price of the produce as damages which should have accrued to the plaintiff from the mortgaged property. On this basis the plaintiff claimed a large amount as value of crops during the period 1927 to 1933. 27. The Privy Council did not agree with the contention of the plaintiff that cause of action accrued to him only in the year 1933. The cause of action was held to have accrued on 10.6.1927, the date of attachment. Resultantly, the suit of the plaintiff was decreed in respect of the rents/ profits only for a period of three years preceding the suit. 28. Again in State of Kerala and others v. Thalayar Tea Co. The cause of action was held to have accrued on 10.6.1927, the date of attachment. Resultantly, the suit of the plaintiff was decreed in respect of the rents/ profits only for a period of three years preceding the suit. 28. Again in State of Kerala and others v. Thalayar Tea Co. Ltd., AIR 1982 Kerala 105, the plaintiffs therein had filed a suit against the State of Kerala for a declaration that they were not liable to pay seigniorage in respect of silver oak trees cut and removed by them from their land. It was contended by them that silver oak trees were their absolute property and as such no seigniorage was payable in respect thereof. The suit was dismissed by the trial Court on 30.6.1967. However, the plaintiffs appeal was allowed by the High Court on 25.11.1970. During the pendency of the suit before the trial Court as well as appeal before the High Court, the plaintiffs cut and removed oak trees on payment of seigniorage on various dates from 1.3.1967 to 20.6.1969. On 5.4.1973, a suit was filed by the plaintiffs for realisation of the total sum so paid by them as seigniorage, the sales tax and interest to the State Government. 29. Two questions came up for consideration before the Full Bench of the Kerala High Court, namely:— (i) Whether the plaintiff had the right to contend that he was not liable to pay seigniorage despite the fact that declaration sought for by him stood negatived in the suit though the matter was pending in appeal before the High Court; and (ii) Whether the plaintiff was precluded from agitating his claim in % a suit because the judgment of the trial Court would have in that case operated as res-judicata. 30. It was held that once an appeal in the earlier suit had been filed, the matter became sub-judice and there was no scope for a plea of res judicata then. The trial of any issue would not be barred as the judgment of the trial Court had not become final then. It was further held that there was no reason to hold that right to sue for the recovery of seigniorage was postponed or that the judgment of the High Court in earlier suit gave rise to the cause of action for the first time. It was further held that there was no reason to hold that right to sue for the recovery of seigniorage was postponed or that the judgment of the High Court in earlier suit gave rise to the cause of action for the first time. If the right to sue was available to the plaintiff all along, the suit filed beyond the period of three years from the date (s) of payment of seigniorage would be barred. Only such claim as fall within three years of the date of suit would survive. 31. In the present case as well, though the suit of the plaintiff for declaration of his title qua the land in question was dismissed in appeal by a Division Bench of this Court, the fact that an appeal was filed by the plaintiff before the Honble Supreme Court and such appeal was pending when the right to sue accrued to the plaintiff, the same would neither operate as res judicata since the matter was still sub-judice nor the same could preclude the plaintiff to file the suit for recovery of the cost of the trees alleged to have been felled and sold by the defendants from the land in question. Nor the decision of the Honble Supreme Court dated 20.7.1990 furnish a> fresh cause of action in favour of the plaintiff. 32. Therefore, since the trees, as per the plaintiffs own case, were felled and sold by the defendants during 1980-84 and each of such fell furnished a separate cause of action to the plaintiff, the present suit having been filed on 20.7.1991, that is, long after expiry of the period of three years in respect of each cause of action, is, on the face of it, hopelessly barred by time. The issue is decided in favour of the defendants. Issue Nos. 1 and 8-A. 33. Both these issues being co-related and inter-connected are being taken up for disposal together. 34. The primary relief claimed by the plaintiff in the present suit is for rendition of accounts by the defendants in respect of the felling and sale of the trees by the defendants from the land in question during the period 1980 to 1984. The defendants have raised an objection as to the maintainability of the suit. 34. The primary relief claimed by the plaintiff in the present suit is for rendition of accounts by the defendants in respect of the felling and sale of the trees by the defendants from the land in question during the period 1980 to 1984. The defendants have raised an objection as to the maintainability of the suit. It is contended on behalf of the defendants that there neither exist any fiduciary relationship between the parties nor the defendants are under any statutory/legal obligation to render the accounts to the defendants. Therefore, suit for rendition of .account, as framed by the plaintiff, is not maintainable. On the other hand, it has been contended on behalf of the plaintiff that the present suit for rendition of accounts is maintainable in view of the provisions contained in Rule 16 of Order XX, Code of Civil Procedure, which reads:— "In a suit for an account of pecuniary transactions between a principal and agent, and in any other suit not hereinbefore provided for where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit." (Emphasis supplied) 35. Dealing with the scope and ambit of Rule 16 (quoted above) it has been held by a Division Bench of Allahabad High Court in Firm Bhawani Sahai Salig Ram. 36. Chhajju Mai and others, AIR 1937 Allahabad 276, that Rule 16 does not only apply to a suit for an account between principal and agent, but the words used in the rule are wide ones and apply to all cases where the court, instead of itself settling the accounts, considers it necessary to stay its hand in order to ascertain the amount of money due to or from any party by having an account taken before a Commissioner. 37. 37. In Firm Ram Dev Jai Dev v. Seth Kaku, AIR 1950 East Punjab 92, there were no less than 114 contracts between the parties for purchase and/ or sale and it had to be ascertained which contract was wiped out or squared up by which contract, what was the resulting profits or loss in respect of such cross-contracts, what amount had been paid by or on behalf of the plaintiff from time to time and how the same had been appropriated and what amount, if any, was due to him. It was held that the dispute between the parties was pre-eminently a matter for accounts and the defendant could not avoid the accounting only on the plea that all contracts were within the knowledge of the plaintiff. It was further held that a suit for account is not necessarily confined between principal and agent and that wherever it is necessary, in order to ascertain the amount of money due to the plaintiff, he may ask the court to pass a preliminary decree for accounts to be taken by or under the supervision of the Court. 38. In Anant Ram Munshi Ram v. Messrs. Spedding Dinga Singh and Company and others, AIR 1960 Punjab 415, the parties had entered into a work contract whereby the plaintiff therein had undertaken the work of catching, collecting, rafting and transporting timber belonging to defendant company. For such work the plaintiff was to be paid at different rates as specified in the agreement. The work was carried out during the period January, 1950 to December, 1950. The plaintiff brought a suit for rendition of accounts against the defendant company. An objection as to maintainability of the suit was raised by the defendant-company, while holding the suit for rendition of accounts maintainable, a learned Single Judge of the Punjab High Court held:— "There is no doubt that a suit for accounts is an extra-ordinary remedy which is available to the plaintiff under special circumstances. Such a remedy is frequently resorted to in suits between principal and agent, between partners and other persons between whom there is a fiduciary relationship and also privity of contract. This remedy is not confined to suits between principal and agent or between partners. In equity, a suit for accounts is entertainable where there are circumstances of special complication necessitating the taking of accounts." 39. This remedy is not confined to suits between principal and agent or between partners. In equity, a suit for accounts is entertainable where there are circumstances of special complication necessitating the taking of accounts." 39. Again in Life Insurance Corporation of India, Central Office, Bombay v. Gurdial Singh, AIR 1960 Punjab 607, in a suit by an insurance agent against the Insurance Company, it was held that where the plaintiff can be given relief after accounting, it is no bar to a suit for accounts, where ordinarily the plaintiff would not be entitled to file a suit for accounts. 40. In Pusha Ram v. Modern Construction Co. (P) Ltd., Kota, AIR 1981 Rajasthan 47, the plaintiff therein was granted a contract for collection of royalty for a period of two years. Such contract was prematurely terminated by the State Government on illegal grounds. The plaintiff filed a suit for rendition of accounts and damages. On the question of maintainability of the suit for rendition of accounts, it was held:— "It is next contended by the learned Government Advocate that under clause (4) of the agreement (Ex. 1) it was the duty of the contractor to collect royalty at quarry mouth from the minor minerals excavated and despatched, and, if the royalty is not paid at the quarry mouth, then to recover royalty at any place near the quarry, provided that such place is fixed, and prior approval there to has been obtained in writing from the Director, Mining Engineer/Assistant Mining Engineer. It is further submitted that under clause 14 of the agreement (Ex. 1), the contractor had to make his own arrangements for collection of royalty, and the State Government was not responsible, if any quarry holder refuses to pay any royalty to the contractor. The learned Government Advocate, therefore, submits that if the contractor failed to recover royalty under the agreement from the contractors, (for) the excavated or removed building stones and sand, he is himself to be blamed and even if the State has recovered the royalty, it cannot be called upon to account to the plaintiff. The learned Government Advocate, therefore, submits that if the contractor failed to recover royalty under the agreement from the contractors, (for) the excavated or removed building stones and sand, he is himself to be blamed and even if the State has recovered the royalty, it cannot be called upon to account to the plaintiff. To my mind, the royalty in this case could not be collected from the contractors, because the Irrigation Department deducted the amount of royalty from the bills of the contractors, and the Irrigation authorities never wanted its contractors to pay the royalty to the plaintiff, who was the royalty collection contractor of the area. Therefore, the State through the officers of the Irrigation Department recovered the amount which was payable under Ex. 1, to which the State was a. party to the plaintiff. The suit of the plaintiff is based for the expired period of the contract on the ground that the Government put obstructions in the recovery of the royalty from its contractors, and it has recovered it. For the unexpired period of contract, the suit is based for compensation or damages on the ground of breach of contract by terminating it illegally and under Section 73 of the Contract Act, the principle for award of damages or compensation is, that as far as possible, the party injured by the other partys breach of contract is entitled to such money compensation, as will put him in the position, he would have been put for the breach. The plaintiff has no accounts and has no means to know as to what amount of royalty was recovered from the different contractors by the Irrigation Department from the quarry holders within the contract area of the plaintiff. The plaintiff has also no means to know for the unexpired period of the contract as to what amount of royalty had been recovered from the bills of the contractors by the State through its Irrigation Department. The State cannot be said to be an agent of the plaintiff for recovering the amount of royalty. But, the State was a party to the agreement (Ex. The State cannot be said to be an agent of the plaintiff for recovering the amount of royalty. But, the State was a party to the agreement (Ex. 1) dated July 10, 1961, under which the plaintiff was entitled to recover royalty in his contract area on building stones and sand excavated from quarry holders, and the State through its officers not only put up obstructions and did not allow the plaintiff to recover the royalty, but it has recovered the royalty amount and thereby committed a breach of the terms of the agreement. Under Order 20, Rule 16, CPC in a suit for an account of pecuniary transactions, (1) between a principal and an agent, and (2) in any other suit not provided under Order 20, where it is necessary to ascertain the amount of money due to or from any party, the Court feels that an account should be taken, then the court shall before passing a final decree pass a preliminary decree directing such accounts to be taken, as it thinks fit. To my mind, in equity, a suit for account is always maintainable where there are circumstances of special nature and complication necessitating the taking of accounts. It is not disputed that complete and correct accounts are with the defendants, and this position is not denied by the defendants. As already observed above, the plaintiff is not in a position to know as to what amount of royalty during the expired period of the contract, or/and during the unexpired period of contract was recovered by the defendants from the bills of the contractors on the building stones and sand excavated and removed from the quarry holders within the contract area of the plaintiff and used in the construction of the dam. Therefore, in the special facts and circumstances of this case, it is a fit case in which the suit for accounts of the plaintiff should be decreed against the State." 41. In Kanhayalal Supdubhai v. Hirala Deoram, AIR 1947 Bombay 255, it has been held that a suit does not necessarily become a suit for accounts because the plaint asks for an account. The plaint must show that the defendant is an accounting party and the plaintiff claims on the footing that an account has to be taken to ascertain the amount due to him. A suit for account is a special form of suit. The plaint must show that the defendant is an accounting party and the plaintiff claims on the footing that an account has to be taken to ascertain the amount due to him. A suit for account is a special form of suit. It does not mean every case in which accounts have to be looked into in order to ascertain the correctness or otherwise of the amount claimed by the plaintiff. A suit for account only lies where the defendant is under an obligation to render accounts to the plaintiff. There must be something more than a mere relationship of debtor and creditor. The defendant must stand in some other relation to the plaintiff, such as that of agent or bailee, or receiver or trustee, or partner or mortgagee. 42. A Division Bench of Jammu and Kashmir High Court in State of Jammu and Kashmir v. L. Tota Ram, AIR 1971 Jammu and Kashmir 71, has held that a suit for rendition of accounts is a special and unusual form of remedy which can be resorted to only on some well recognised circumstances. It is not enough in a suit for accounts to allege that the plaintiff does not know the exact amount that he can claim from the defendant. Nor is it any reason as to what amount due to one or the other that a suit for accounts will lie. 43. Keeping in mind the above principle, it is to be seen in the present case as to whether there exist any special relationship between the parties so as to enable the plaintiff to call for rendition of accounts by the defendants or whether the defendant(s) is under any legal obligation to render the account to the plaintiff. 44. The plaintiff in para 1 of the plaint has averred that the State defendant No.l disputing the title of the plaintiff qua the land in question had illegally taken the possession thereof. Further case of the plaintiff is that during the pendency of the earlier litigation between the parties, the State defendant had illegally felled and sold 10,500 trees from such land. Thus, as per the plaintiff own case the defendant No. 1 State is an encroacher/ trespasser over the land in dispute. Further case of the plaintiff is that during the pendency of the earlier litigation between the parties, the State defendant had illegally felled and sold 10,500 trees from such land. Thus, as per the plaintiff own case the defendant No. 1 State is an encroacher/ trespasser over the land in dispute. The question arising is whether an encroacher/trespasser can be called upon to render the account in respect of the income/benefits derived by him from the land alleged to have been encroached upon/trespassed by him? The answer to such a question can be simply-No. An encroacher/trespasser cannot be said to have such a special relation with the owner of the land so as to entitle the latter to call upon him to render account. Nor an encroacher/trespasser can be said to be under any legal obligation to render account. 45. On the facts and in the circumstances of the case, it is held that the suit as laid for rendition of account is not maintainable and the plaintiff is not entitled to a decree for rendition of accounts. Issue No. 1 is found in favour of the defendants while issue No. 8-A is decided against the plaintiff. Issue No. 3 46. Section 18 of the Ceiling Act, which bars the jurisdiction of the Civil Court, provides:— "18. Bar of jurisdiction.—(1) No Civil Court shall have jurisdiction to— (a) entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the rights of the State Government to the surplus area under this Act; or (b) settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, the Collector. (2) No order of the Financial Commissioner, the Commissioner, the Collector made under or in pursuance of this Act, shall be called in question in any court." 47. It has been contended on behalf of the defendants that since the present case falls under clause (b) of sub-section (1) of Section 18, Ceiling Act, Civil Courts jurisdiction is barred. (2) No order of the Financial Commissioner, the Commissioner, the Collector made under or in pursuance of this Act, shall be called in question in any court." 47. It has been contended on behalf of the defendants that since the present case falls under clause (b) of sub-section (1) of Section 18, Ceiling Act, Civil Courts jurisdiction is barred. On the other hand, it has been contended on behalf of the plaintiff that the present suit being for recovery of damages/compensation simpliciter in respect of the value of the trees illegally felled and sold by the defendants from the land in question, does not fall within the ambit of Section 18(l)(b) of the Ceiling Act and as such is within the jurisdiction of the Civil Court. 48. The Ceiling Act was enacted in order to consolidate and amend the laws relating to ceiling on land holdings in the State of Himachal Pradesh and for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution of India. 49. The word "land" has been defined under clause (f) of Section 3 as meaning land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture or pasture and includes : (i) the sites of building and other structure on such land; (ii) Orchards; (iii) Ghasnies; (iv) Banjar land; and (v) Private forests. 50. Section 4 of the Ceiling Act prescribes the permissible area which a land owner or a tenant or a mortgagee with possession can hold. Section 8 mandates that every person who on the appointed day, that is, 24.1.1971 or at any time thereafter holds land exceeding the permissible area, shall furnish to the Collector particulars of all his lands within the prescribed period and in the prescribed form and the manner and stating therein the selection of land not exceeding in aggregate the permissible area. Section 9 further mandates that every person required to furnish a return under Section 8 whose land is situated in more than one Patwar Circle shall furnish to the Collector within a prescribed period a declaration supported by affidavit in respect of the land owned or held by him in such form and manner as may be prescribed. 51. Section 9 further mandates that every person required to furnish a return under Section 8 whose land is situated in more than one Patwar Circle shall furnish to the Collector within a prescribed period a declaration supported by affidavit in respect of the land owned or held by him in such form and manner as may be prescribed. 51. Under Section 10 of the Ceiling Act, the Collector on the basis of the information given in the return under Section 8 or the declaration furnished under Section 9, after due verification is to prepare a draft statement in the prescribed manner showing among other particulars the total area of land owned or held by such a person, the specific parcel(s) of land which a person may retain by way of permissible area or exemption from ceiling as also the surplus area. Such draft statement is then to be published in the office of the Collector and a copy thereof to be served upon the person(s) concerned in the prescribed manner. Any objection received within 30 days of the service are to be considered by the Collector and after affording an opportunity of being heard, the Collector is to pass such order as he may deem fit. Such draft statement is to become final in terms of the orders of the Collector or the orders, if any passed in appeal, revision or review as the case may be. 52. Section 11 provides for vesting of the surplus area in the State on and from the date on which possession thereof is taken by or on behalf of the State Government as having been acquired by the State Government for a public purpose on payment of amount to be determining under Section 14 of the Ceiling Act. Section 12 empowers the Collector to take possession of the surplus area in the manner provided therein. 53. Section 14 deals with the principles for determination and payment of the amount in respect of the surplus area. It provides— "14. Section 12 empowers the Collector to take possession of the surplus area in the manner provided therein. 53. Section 14 deals with the principles for determination and payment of the amount in respect of the surplus area. It provides— "14. Principle for determination and payment of amount.—(1) Where any surplus area has vested in the State Government under Section 11, the Collector shall determine the amount payable therefor in accordance with the principles hereinafter set out, that is to say— (1) for the land upto ten acres, ninety five times the land revenue (including rates and cesses), (ii) for the land in excess of 10 acres and below 30 acres, seventy five times the land revenue (including rates and cesses), and (iii) for the remaining land, forty five times the land revenue (including rates and cesses); payable for such land : Provided that if the holding or part thereof comprising surplus area is not assessed to land revenue the land revenue on such land shall be construed to be assessed as on similar land in the estate and if not available in the estate then the adjoining estate or estates, as the case may be: Provided further that the waste land shall be treated as banjar land for the purpose of assessment of land revenue and determination of an amount. (2) For the purpose of sub-section (1), the Collector shall prepare a statement of the amount in such form and manner as may be prescribed and shall after following the prescribed procedure apportion the amount amongst the persons having interest in the land. (3) Where in the surplus area of any person mortgagee rights have vested in the State Government, the amount payable to the mortgagee shall be mortgage money due to the mortgagee, or the amount payable under this section, whichever is less. (4) Where on the land there is any building, structure or tube-well or crop, the owner thereof shall, in addition to the amount payable in respect of the land, be entitled to be paid by the State Government an amount therefor which shall be 50% of the market price of such building, structure, tube-well. The landowner shall be entitled to harvest the crop standing on the surplus area. (5) The amount shall be payable either in lump sum or in six monthly instalments not exceeding ten in the manner prescribed." 54. The landowner shall be entitled to harvest the crop standing on the surplus area. (5) The amount shall be payable either in lump sum or in six monthly instalments not exceeding ten in the manner prescribed." 54. Section 20 of the Ceiling Act provides for an appeal against every decision or order of the Collector. Such appeal lies to the Commissioner. Against the order passed in appeal by the Commissioner, a revision lies before the Financial Commissioner. The order of the Financial Commissioner is final. Section 21 provides that any Officer or authority holding an enquiry or hearing an appeal or a revision shall have the powers of a Civil Court under the Code of Civil Procedure relating to the matters detailed therein. 55. According to the scheme of the Act all matters pertaining to declaration of surplus area, amount of compensation payable in respect thereof, taking of possession of such land and all other matters connected and ancillary thereto are to be dealt with by the Officers/authorities specified therein and the jurisdiction of Civil Court in respect of such matters is barred. 56. There is no denying that the plaintiff had furnished the return under Section 8 of the Ceiling Act. The land in question was never selected by him to be retained by him as permissible area. The requisite inquiry by the Collector as contemplated by Section 10 of the Ceiling Act was pending at the time of the filing of the present suit. Such proceedings terminated on 10.11.1993 vide order of the Collector, Rampur Bushahr, copy of which is Ex. PW 2/B. 57. A perusal of the said order shows that initially the proceedings before the Collector terminated on 12.5.1976. However, in revision carried before the Financial Commissioner the matter was remanded on 5.9.1995 to the Collector for decision afresh. On remand the matter came to be decided by the Collector vide order Ex. PW 2/B. This order further shows that a sum of Rs. 57,456.25 paise as compensation determined under Section 14, Ceiling Act, was paid to and received by the plaintiff on various dates as under:— S. No. Amount Date of payment 1. Rs. 18,620.60 P 3.11.1980 2. Rs. 10,900.00 5.11.1980 3. Rs. 15,000.00 24.1.1981 4. Rs. 3,935.00 20.3.1981 5. Rs. 9,600.00 31.3.1981 Such amount of compensation was received by the plaintiff without any objection and protest. Rs. 18,620.60 P 3.11.1980 2. Rs. 10,900.00 5.11.1980 3. Rs. 15,000.00 24.1.1981 4. Rs. 3,935.00 20.3.1981 5. Rs. 9,600.00 31.3.1981 Such amount of compensation was received by the plaintiff without any objection and protest. The claim with regard to the compensation in respect of the trees on the land in question which was declared surplus was also raised before the Collector on behalf of the plaintiff as is evident from para 5 of the order Ex. PW 2/B. Such claim was laid under sub-section (4) of Section 14 of the Ceiling Act. The claim was rejected by the Collector. The remedy available to the plaintiff was under Section 20 of the Ceiling Act by way of an appeal and cannot be agitated by way of a Civil Suit in view of Section 18 of the said Act. 58. It is, therefore, held that Civil Court has no jurisdiction in the matter. The issue is accordingly decided against the plaintiff and in favour of the defendants. 59. Even otherwise, the Honble Supreme Court in its judgment dated 20.7.1990 Rajkumar Rajinder Singh v. State of Himachal Pradesh and others, (1990) 4 SCC 320 in para 26 (quoted above) while declining the claim of the plaintiff for the refund with interest of the market value of the trees totalling 10,505 cut and sold by the Forest Department, as claimed by the plaintiff in the present suit, had observed that "in view of the fact that the Himachal Pradesh Ceiling on Land Holdings Act, 1972 has since intervened, we do not entertain this claim in the present proceedings. The refusal to entertain this claim will not debar the plaintiff from seeking any relief that is available to him under the 1972 Act." 60. In view of the above observations as well the plaintiff could have raised the claim in respect of the trees only under the provisions of the Ceiling Act and not by way of a Civil Suit like the present one. In fact, as stated above, on the basis of the judgment dated 20.7.1990 a claim was in fact raised by the plaintiff before the Collector under the provisions of the Ceiling Act, which was rejected. Issue No. 5 61. In fact, as stated above, on the basis of the judgment dated 20.7.1990 a claim was in fact raised by the plaintiff before the Collector under the provisions of the Ceiling Act, which was rejected. Issue No. 5 61. Section 11 of the Ceiling Act which deals with "vesting of surplus area in the State Government" provides:— “The surplus area of a person shall, on the date on which possession thereof is taken by or on behalf of the State Government be deemed to have been acquired by the State Government for a public purpose on payment of amount hereafter provided and all rights, title interests (including the contingent interest, if any) recognised by any law, custom or usage for the time being in force, of all persons in such area shall stand extinguished and such rights, title and interests shall vest in the State Government free from any encumbrance: Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall, vest in it." 62. Relying on the said provision it was contended on behalf of the plaintiff that since the possession of the land was taken in the year 1993 pursuant to the order Ex. PW 2/B of the Collector, the land in dispute would be deemed to have vested in the State Government only in 1993. 63. It is the admitted case of the plaintiff vide para 1 of the plaint that the State defendant had illegally taken over possession of the land in dispute before the filing of the earlier suit, being Civil Suit No. 11 of 1967. Nothing has come on the record to show that the State defendant was dispossessed thereafter at any stage and the plaintiff came in to possession thereof. In the absence of evidence to the contrary the only inference is that the defendant continued to be in possession of the land in dispute. Once the defendant was in possession, there was no question of taking physical possession of such land again under the provisions of the Ceiling Act. In the absence of evidence to the contrary the only inference is that the defendant continued to be in possession of the land in dispute. Once the defendant was in possession, there was no question of taking physical possession of such land again under the provisions of the Ceiling Act. Admittedly, the plaintiff himself had, in his return submitted under Section 8 of the Ceiling Act indicated the intention for the land in question to be declared surplus, the possession of which was with the defendant. Besides, the compensation for the land, as stated above, was received by the plaintiff without any objection/protest in the year 1980-81. Therefore, it is not open to the plaintiff to say that the land in question had not vested in the State defendant. 64. The Honble Supreme Court while dealing with a similar provision as to vesting of surplus area in the State as contained in Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 in D. Ramakrishna Reddy and others v. The Addl. Revenue Divisional Officers and others, AIR 2000 SC 2723, has held that vesting of the surplus land in the State is not dependent on taking over physical possession of the land which may be immediately after vesting or sometimes subsequent thereto. 65. In the present case, the possession was already with the defendant. The compensation assessed was received by the plaintiff in 1980-81 without any protest. Therefore, the land would be deemed to have vested in the State in 1980 on the date of receipt of first instalment of compensation by the plaintiff without protest. The issue is accordingly decided. Issues No. 7 and 8 66. In view of the findings recorded under Issues No. 3, 4 and 5, the plaintiff is neither entitled to recover the value of the trees alleged to have been felled and sold by the defendants nor to any interest. Both the issues are decided against the plaintiff. Relief 67. As a result, the present suit fails and the same is accordingly dismissed. The parties are, however, left to bear their own costs. Suit dismissed.