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2004 DIGILAW 261 (PNJ)

Hawa Singh v. State Of Haryana

2004-03-04

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. Plaintiff-appellant is in second appeal against the judgment and decree passed by the courts below in a suit for permanent injunction. 2. The appellant filed a suit or permanent injunction restraining the defendants from cutting and removing the trees from the land comprising in Khewat No. 66(min) Khata No. 84(min) Rect and Killa Nos. 112/3/2(1-7), 4(1-7)5(1-5), 9(1-13) measuring 5 kanals 12 Marias situated in village Jamni Tehsil Safidon District Jind. It was alleged that the plaintiff has planted trees on the suit land and that the plaintiff being the owner in possession of the land is entitled to trees but the defendants illegally are threatening to cut and remove the trees from this suit land. 3. In response to the suit filed the defendants came up with a plea that the suit land is owned and possessed by the Haryana Government vide notification dated 2.5.1958. It was further stated that the defendants are in peaceful and hostile possession of the suit land that they have planted trees for the first time in 1972 and for the second time in 1982. Trees were planted on both sides of Jind Distributary No. 4 and Jind Safidon road including the site in question as per the notification referred to above. 4. The plaintiff-appellant has produced Jamabandi for the year 1981-82 Ex.P-2 as well as Khasra girdawari for the year 1984-85 Ex.P-3. The plaintiff also examined PW-2 Rattna and PW-3 Hukma apart from examining Prem his attorney as PW-1 in support of his case. On the other hand the defendants have produced notification dated 3.5.1958 as Ex.D-4 and notification dated 11.10.1974 Ex.D-3, The defendants have also examined Ran Singh DW-1, Umed Singh DW-2 and Jagdish DW-3. The defendants have also produced the record of expenditure in the shape of Exs. D-1, D-2, D-5 and D-6 and D-7. The learned trial court dismissed the suit holding that the plaintiff is neither owner nor in possession of the suit land. That the plaintiff has not been able to prove the plantation of trees by him. In appeal the First Appellate Court had returned finding, after considering the statements of witnesses of the plaintiff as well as of the defendants, that the Forest Department has planted Kikar trees in 1972 and Safeda Trees in 1982 on both the sides of Jind Distributory No. 4 and on both sides of Jind Narwana Road. In appeal the First Appellate Court had returned finding, after considering the statements of witnesses of the plaintiff as well as of the defendants, that the Forest Department has planted Kikar trees in 1972 and Safeda Trees in 1982 on both the sides of Jind Distributory No. 4 and on both sides of Jind Narwana Road. Documents Ex. D-1, D-2, D-5 and D-7 were relied upon to return a finding that the expenditure for plantation of these trees and maintaining them was incurred by the forest Department. The first appellate court also held that the plaintiff has failed to prove that the trees were planted by him. The Court concluded that the plaintiff has failed to prove that the suit in dispute is forming part of the land described in the plaint. It was found that the plaintiff has not got demarcated his land nor agitated that the Forest Department has utilised any part of his land by planting Kikar and Safeda trees. In view of the said finding the first appellate court dismissed the suit. 5. Aggrieved against the judgment and decree of the first appellate court the plaintiff has filed the present appeal. The plaintiff has also moved an application under Order 41 Rule 27 of the Code of Civil Procedure to lead additional evidence i.e. the award rendered by the learned District Judge, Jind dated 13.3.1995 in respect of the acquisition of the land owned by the appellant. Since reliance of the appellant is on an award rendered by the court of competent jurisdiction and is subsequent event, the said award is ordered to be admitted into evidence and is marked as Ex."C". 6. I have heard the learned Counsel for the parties and with their assistance have gone through the records of the case. 7. I am unable to agree with the arguments raised by the learned counsel for the appellant. Learned counsel for the appellant has vehemently argued that the suit land is owned by the plaintiff. The defendants have not acquired the suit land and therefore, the plantation of the trees on the land of the appellant shall entail for the benefit of the appellant. Learned counsel for the appellant has vehemently argued that the suit land is owned by the plaintiff. The defendants have not acquired the suit land and therefore, the plantation of the trees on the land of the appellant shall entail for the benefit of the appellant. It was also submitted that the defendants have, in fact, initiated acquisition proceedings and have acquired the suit land, therefore, it is apparent that the appellant being owner of the suit land reliance on a judgment reported as Panni Lal v. Med Singh, 1987(1) Current Law Journal 230. 8. Finding of fact has been recorded by the first Appellate court that the plaintiff has not been able to prove that the tree planted by the defendants in pursuance of the notification Ex.D-3 and Ex.D-4 are on the land of the appellant. Such finding has been returned as the plaintiff has not got the land demarcated. There is nothing on the record on the basis of which it can be said that the land alleged to be owned by the plaintiff is the one on the both sides of Jind Distributary No. 4 or on Jind Safidon Road. Whether the land on which he has planted trees is owned by the defendants or by the plaintiff could be determined only by getting the land demarcated. The ownership of the land in respect of the land mentioned in Jamabandi Ex.P-2 is not being disputed by the State Government. However, it is the case of the defendants that the land abutting Jind Distributary No. 4 and Jind Safidon Road is that of the department in which they have planted trees in terms of the notifications Ex.D-3 and Ex.D-4. 9. In view of the said finding I do not find that the view taken by the first appellate court that the plaintiff has failed to prove the ownership of the disputed land as that vesting in the plaintiff does not suffer from any patently illegality or irregularity. However, it shall be open to the plaintiff to seek demarcation from the competent court of law and other consequential relief if it is found that the land of which the appellant is owner has been used by the defendants for planting of the trees. 10. With the above observations the appeal is dismissed.