Punjab-Haryana High Court

State Of Haryana And Others vs Ram Gopal on 27 October, 2009

RSA No. 3306 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3306 of 2009 (O&M) Date of Decision: October 27 , 2009 State of Haryana and others ...... Appellants Versus Ram Gopal ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.P.S.Sullar, DAG, Haryana for the appellants. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgement of the learned lower Appellate Court reversing that of the trial court and thereby decreeing the suit of the respondent for permanent injunction restraining the appellants from cutting and removing the trees planted on his land. The following questions have been proposed"-

i) Whether the judgment and decree passed by the learned Lower Appellate Court is sustainable in the eyes of law? ii) Whether the judgment and decree passed by the learned Lower Appellate Court is contrary to evidence,documentary as well as oral, produced on record? iii)Whether the plaintiff-respondent can claim an injunction against the defendantdepartment with regard to the trees which are part of protected forest declared by way of RSA No. 3306 of 2009 (O&M) 2 notification of the Government? iv)Whether a demarcation report prepared in the absence of the competent Officer of the defendant-department can be relied upon? It would be seen that questions No. (i), (ii) and (iv) are pure questions of fact. After dealing with the entire evidence learned Lower Appellate Court has held that the plaintiff has been able to prove that the trees were planted on the land belonging to him. Learned DAG has not been able to convince me that the findings recorded on these questions of fact are based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. As regards question No. (iii) this court in a similar case in Divisional Forest Officer v. Mohd. Hanif reported as 2009(2) R.C.R. (Civil) 527 held as follows:"I have heard learned counsel for the appellant and perused the record. I find no merit in the appeal. The fact that the plaintiff-respondent is owner in possession o the land on which the disputed trees are standing is not disputed. From the copy of the demarcation report, it is evident that the disputed trees are standing in the land on which the plaintiff-respondent is recorded as owner in the revenue record. No doubt, it is claimed by the appellants that they have planted and nurtured the disputed trees and the area has been declared as a protected forest area but such

exercise does not vest any right in the department because the trees belong to the owner of the soil where they have been planted. The settled law on the point in that a tree belongs to the owner of the land and not to the planter. For taking this view, I am supported by a judgment of this Court in the case of Ghasi Ram v. Arun Kumar, 2006(1) RCR RSA No. 3306 of 2009 (O&M) 3 (Civil) 751: (20-06-2) 143 PLR 63. The notification issued by the State that the whole area has been declared as protected forest under a valid notification issued by the State does not vest ownership of the trees in the appellant-State." In view thereof this question has to be answered against the appellant. Consequently this appeal and the application for stay as well are dismissed. (AJAY TEWARI) JUDGE October 27 , 2009 sunita

Punjab-Haryana High Court

State Of Haryana & Ors vs Gurdev Singh on 16 March, 2009
RSA No.2703 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2703 of 2008 (O&M) Date of Decision: 16.3.2009 State of Haryana & Ors. ..Appellants Vs. Gurdev Singh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Madan Gupta, Sr.DAG, Haryana, for the appellants. Mr.Balkar Singh, Advocate, for the respondent. --Vinod K.Sharma,J. (Oral) CM No.7916-CII of 2008 This application under section 5 of the Limitation Act has been moved for condoning the delay of 59 days in filing the appeal. Notice of the application was issued. The respondents have chosen not to file reply in spite of availing opportunity. The averments made in the application which are supported by an affidavit remain unrebuted. It is averred in the application that it was due RSA No.2703 of 2008 (O&M) 2 to administrative procedure that the delay of 59 days has occurred. The averments made in the application make out sufficient cause for condoning the delay of 59 days in filing the appeal. The application is allowed and delay of 59 days in filing the appeal is condoned. RSA No.2703 of 2008

State of Haryana is aggrieved by the judgment and decree dated 1.12.2006 and 24.3.2008 passed by the learned courts below vide which injunction has been granted restraining the State from cutting and removing two shisham and 21 eucalyptus trees in the land comprising in Khasra Nos. 18/2 and 3/1 situated at village Ambwala 288, Tehsil Jagadhri, District Yamuna Nagar. Injunction was also granted restraining the appellant-defendants from creating any obstruction in the process of harvesting of trees by the plaintiff/respondent. On the pleadings and evidence brought on record learned courts below have recorded a concurrent finding of fact that the land comprised in Khasra No.18/2 and 3/1 is not the ownership of the plaintiff though it was the State/appellants which was said to have planted trees. Learned courts below by placing reliance on the judgment of this court in the case of Ghasi Ram Vs. Arun Kumar 2006 (1) PLJ 390 (P&H) have been pleased to lay down that the trees standing on the land belongs to the owner of the land and not to the person who planted them. Once it was proved on record that the land was in ownership and possession of the plaintiff/respondent the stand of the appellant/defendants that on account of having planted the trees they were entitled to cut them has rightly been rejected. RSA No.2703 of 2008 (O&M) 3 Learned counsel for the appellants submits that this appeal raises the following substantial question of law for consideration of this court:Whether the party who planted the trees is entitled to ripe the fruit thereof? The contention of the learned counsel for the appellants was that the learned courts below have recorded a concurrent finding of fact that the trees were planted by the appellant-defendants and therefore, their right to cut them could not be defeated merely because the plaintiff/respondent was held to be owner of the land. In support of this contention learned Senior Deputy Advocate General Haryana placed reliance on the judgment of Hon'ble Supreme Court in the case of Ghulam Rasool and another Vs. State of Jammu and Kashmir and another, 1983 (4) SCC 623, wherein Hon'ble Supreme Court has been pleased to lay down as under:- " The trial court as also the court of appeal had recorded a clear finding that the plaintiffs were trespassers in regard to 6 kanals of land appertaining to survey No.192. The State admittedly is the real owner. The finding in the courts below that the plaintiffs have been in possession of the property from 1946 being one of fact, has rightly not been challenged either in the High Court or before us. It is on the basis of such possession that plaintiffs' counsel contended that the plaintiffs were entitled to protection against forcible dispossession. The suit was instituted on December 29, 1961.

Plaintiffs who came to possession of the property in 1946 had, therefore, not RSA No.2703 of 2008 (O&M) 4 perfected title to the property by the date of the suit. Plaintiffs' cause of action for the suit with reference to the property in survey No.192 was mainly on account of interference by the Block Development Officer with regard to the trees grown by them. Keeping in view the fact that the State was owner of the property and the land was required for a public purpose as stated by Mr.Ahmed in course of the hearing,we suggested to the plaintiffs' counsel that the plaintiffs should give up possession of the property in favour of the real owner and they could, if they so liked, remove the trees raised by them on this property. Mr.Mehta for the appellants agreed that given six months' time for removal of the trees grown on 6 kanals of land appertaining to survey No.192 plaintiffs would agree to give up vacant possession. Mr.Ahmed, however, in the absence of instructions from the state was not prepared to concede to this arrangement. We have already indicated that the clear finding in the trial as also the appellate court is that the plaintiffs have grown the trees being in possession from 1946, the plaintiffs would, therefore, be entitled to appropriate the trees after removal and the State would not be entitled to raise any claim to the plantations. We agree of the view that six months' time should be allowed to the plaintiffs to cut and remove the standing trees from the six kanals of land appertaining to survey No.192 and they should deliver vacant possession of that property to the State through its public officers on or RSA No.2703 of 2008 (O&M) 5 before April 1, 1984 as agreed to by their counsel." However, on consideration of matter, I find no force in the contention raised by the learned counsel for the appellants. This court in the case of Ghasi Ram Vs. Arun Kumar (supra) has been pleased to lay down that the ownership of the trees goes with the ownership of the land. Judgment of the Hon'ble Supreme Court is contrary to the law laid down by this court. Hon'ble Supreme Court merely permitted a party to harvest the trees as the plaintiffs in the said case were found to be in illegal possession of the property. The liberty to cut trees was granted in consideration of their handing back the possession to the true owner. Reliance on the judgment of Hon'ble Supreme Court in the case of Ghulam Rasool and another Vs. State of Jammu and Kashmir and another (supra) by the learned Senior Deputy Advocate General, Haryana in support of the contention raised is, thus, misconceived. The judgments passed by the learned courts below are in consonance with the law laid down by this court. The substantial question of law, therefore, is answered against the appellants and in favour of the plaintiff/respondent. Consequently, this appeal being devoid of any merit is ordered to be dismissed in limine.

16.03.2009 (Vinod K.Sharma) reena/rp Judge