SHER SINGH Vs. SORAN

JUDGEMENT

(1.) SORAN Singh son of Bakhtawar Singh filed suit for permanent injunction against Sher Singh and others restraining them from cutting the trees standing in the land owned and possessed by the plaintiff comprised in Rect. No. 37, Khasra No. 5 Rect. No. 38 Khasra Nos. 1 and 2 situated in Village Samani, Tehsil and District Karnal, now Tehsil Thanesar, District Kurukshetra and from demolishing, removing or shifting the dol existing on the Northern boundary of the land comprised in Khasra Nos. 37/5, 38/1 and 38/2. It is alleged in the plaint that the plaintiff is the owner in possession of land comprised in Rect.No. 37 Khasra No. 5 Rect. No. 38 Khasra Nos. 1 and 2 situated in Samani. There is a joint dol which falls from West to East between the fields of the plaintiff and those of the defendants. There are 62 eucalyptus trees which are about 12 years old which had been planted by them. These trees have been shown in the site plan of dol marked AB. Plaintiff is in peaceful and continuous possession of these trees planted by him on the joint dol which is existing on the Northern boundary line of Khasra Nos. 37/5, 38/1 and 38/2 i.e. on the land belonging to the plaintiff and eucalyptus trees are standing there. The defendants intend to demolish, remove and shift the dol existing on the Northern boundary line with a view to grab the trees and northern portion of the above mentioned land. Defendants contested the suit. It was denied that there is any joint dol between the fields of the plaintiffs and those of the defendants. Eucalyptus trees are standing in the land of the defendants and towards Northern side of the dol marked as AB. In fact these trees were planted by the defendants in their own field and not on the common dol as alleged. These trees are owned by the defendants. It was denied that defendants want to demolish or shift the dol existing towards the Southern side of the land of the defendants. It is the plaintiff and his sons who tried to demolish the dol which exists towards the Southern side of the land of the defendants. The matter was reported to the police. Settlement was arrived at which was reduced into writing on 17.6.1991. In this settlement plaintiff through his sons stated that he will not demolish the dol and whatever had been removed by him or his sons that will be repaired by them. It was denied that they are cutting the eucalyptus trees illegally or unauthorisedly. The site plan attached to the plaint also shows that eucalyptus trees are standing in the land of the defendants and towards the Northern side of the dol marked as AB. On the pleadings of the parties the following issues were framed :

(2.) VIDE order dated 16.5.1994, Senior Sub Judge, Kurukshetra decreed the suit of plaintiff for permanent injunction restraining the defendants from cutting the eucalyptus trees standing on the joint dol of land comprised in Khasra Nos. 37/5, 38/1 and 38/2 and from demolishing/removing/shifting the dol existing on the Northern boundary of the aforesaid Khasra numbers in view of the finding that eucalyptus trees are standing in Khasra Nos. 37/5, 38/1 and 38/2 which belong to the plaintiffs. It was found that trees are standing on the dol and defendants have not claimed that dol exists in their land or it is common dol and they have also got right on it.

(3.) PLAINTIFF -Soran Singh had made an application to Tehsildar, Thanesar (Kurukshetra) for appointing Local Commissioner for giving Nishandehi of land bearing Khasra Nos. 37/5, 38/1 and 38/2 so that it could be determined whether the trees standing on the Northern dol of these Khasra numbers are situated within the ambit of his land and belong to him. On his prayer, the Tehsildar had appointed one Kali Ram. Shri Kali Ram gave demarcation on 15.3.1991 in the presence of Soran Singh, Sher Singh etc, and Maya Ram Patwari. He found that eucalyptus trees standing on the Northern dol of these Khasra numbers are located within the ambit of this land and as such it belonged to Soran- plaintiff. On the request of the defendants before the Court for appointment of Local Commissioner for ascertaining whether the eucalyptus trees are standing on the common dol or in the fields of the defendants, which was not opposed by the plaintiff, Shri Kundan Lal Chopra retired Kanungo was appointed Local Commissioner. Shri Kundan Lal Chopra gave demarcation and he found that these trees are standing on the land belonging to the defendants. Objections were put in by the plaintiffs to the report of Shri Kundan Lal Chopra. Shri Kundan Lal Chopra expired before he could be put into the witness-box. If Shri Kundan Lal Chopra had appeared into the witness box either his report would have been upheld or his report would have been set aside. In this case the dispute is not who planted these eucalyptus trees. Dispute is whether these eucalyptus trees are standing on the joint dol or they are standing on the land lying within the ambit of the land of the defendants. In this case, there were two reports by the Local Commissioners which were contradictory to each other. Report of Local Commissioner, Shri Kundan Lal Chopra dated 8.2.1989 shows that eucalyptus trees are standing in the land belonging to the defendants. Plaintiff filed objections to the report of Shri Kundan Lal Chopra, Local Commissioner. The Court should have appreciated the report of one Local Commissioner in the light of the report of the other Local Commissioner and then concluded which of the reports should be accepted. In his report Shri Kundan Lal Chopra had clearly stated that eucalyptus trees (in dispute) were standing on the land belonging to the defendants and as such the eucalyptus trees belonged to the defendants. In the nature of things, the trial Court should not have acted upon either of these reports and appointed another Local Commissioner instead.