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2012 DIGILAW 799 (HP)

Rajender v. Tula Ram

2012-11-06

V.K.AHUJA

body2012
Judgment V.K. Ahuja, J. This regular second appeal under Section 100 CPC has been filed by the appellants/defendant against the judgment and decree of the Court of learned District Judge, Solan, dated 08.1.2004, vide which he had affirmed the judgment and decree of the Court of learned Senior Sub Judge, Solan, dated 26.11.2002, vide which the said suit of the respondent for recovery of Rs.33,300/-, as against the appellants was decreed. 2. Briefly stated, the facts of the case are that the respondent, hereinafter also referred to as the ‘plaintiff’, filed a suit for recovery of Rs.33,300/- with costs and interest. The plaintiff pleaded that the defendant had entered into an agreement for the purchase of ‘Chil’ trees existing over the land of the plaintiff comprised in Khasra Numbers, as detailed in the plaint, at the rate of Rs.1700/- per tree. The plaintiff also pleaded that after obtaining the necessary permission from the Forest Department in the year 1993, the defendant felled and removed 49 Chil trees and sold the same to the H.P. Forest Corporation. The total value of the trees comes to Rs.83,300/- out of which defendant paid Rs.50,000/- to the plaintiff through cheques and the balance amount of Rs.33,300/- remained to be paid to the plaintiff. The defendant failed to pay amount, as agreed, hence, this suit for recovery of the amount with costs and interest. 3. On the pleadings of the parties, the following issues were framed by the learned trial Court: “1. Whether the plaintiff is entitled to the recovery of the suit amount with interest as prayed? OPP. 2. Whether the suit is not maintainable and is bad for non-joinder of necessary parties? OPD. 3. Whether the plaintiff is estopped from filing the present suit due to his own act, conduct and acquiescence? OPD 4. Relief.” 4. The parties led their evidence and learned trial Court vide its impugned judgment decided all the three issues in favour of the plaintiff and as against the defendants. On appeal those findings were upheld by the learned District Judge, who dismissed the appeal filed by the defendant, hence, the present Second Appeal filed by the defendant. 5. I have heard the learned counsel for the parties and have also gone through the record of the case. 6. On appeal those findings were upheld by the learned District Judge, who dismissed the appeal filed by the defendant, hence, the present Second Appeal filed by the defendant. 5. I have heard the learned counsel for the parties and have also gone through the record of the case. 6. The submissions made by the learned counsel for the appellant were that as per provisions of Section 4 of the H.P. Forest Produce (Regulation of Trade) Act, 1982, the agreement to fell trees executed between the parties, could not have been entered into. Therefore, it was submitted that the plaintiff was not entitled to the amount in question and the findings to the contrary are liable to be set aside. On the other hand, the submissions made by learned counsel for the defendant were that no such plea was taken by the plaintiff either before the trial Court or before the First Appellate Court and this plea therefore, cannot be taken into consideration and as such the appeal is liable to be dismissed. 7. In support of his submissions, learned counsel for the respondent has relied upon the decision rendered in Bachhaj Nahar versus Nilima Mandal, AIR 2009, Supreme Court 1103, the following observations were made, which are relevant and are being reproduced below:- “In the appeal filed against dismissal of suit for declaration of title and injunction wherein no plea as to availability of easementary rights was raised, the high Court could not while rejecting the plea of the plaintiffs that they were owners of the suit property, grant the relief of injunction in regard to an easementary right by assuming that they had an easementary right to use the schedule property as a passage. The grant of such relief by converting a suit for title into a suit for enforcement of easementary rights is violative of fundamental rule that a Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.” 8. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.” 8. A perusal of the record shows that the appeal in question was admitted only on the following substantial question of law: “Whether by virtue of provisions of Section 4 of the H.P. Forest Produce (Regulation of Trade) Act, 1982, the agreement to fell trees executed between the parties, could not have been entered into?” 9. A perusal of the provisions of the Act shows that the sale could not have been made to private person and the sale, if any, could have only been made to the Forest Corporation. 10. In the present case, the defendant had sold the trees to Forest Corporation only after taking necessary permission from the Forest Department. The sale in question had not been made in favour of a private party in violation of the provisions of the above Act, and, therefore, the sale in question or the Agreement to Sell cannot be termed as illegal or against the provisions of the Act. 11. During the course of hearing no plea was raised in regard to the trees felled, which list of trees Ext. PW1/A was admitted by the defendant, as correct and this was never challenged that this balance amount is incorrect. No arguments were advanced on this point nor the appeal was admitted on this ground. Therefore, there is no substance in the appeal filed by the appellants and as such the findings of the learned trial Court are upheld by the learned Appellate Court are liable to be affirmed. Be it stated that no other point was urged. 12. From the above discussion, it follows that the findings recorded by the learned trial Court and affirmed by the learned first appellate Court are based upon correct appreciation of evidence and law and these do not call for interference by this Court and are liable to be affirmed. There is no merit in the appeal filed by the appellant and the same is dismissed accordingly. However, the parties are left to bear their own costs.