M C SHIMLA Vs. MATHU RAM AND ANOTHER

JUDGEMENT

(1.) Respondent No. 1 in present appeal (herein after referred to be as plaintiff) has filed a civil suit against appellant Municipal Corporation, Shimla and proforma respondent No. 2 Divisional Forest Officer, Forest Division Shimla (herein after referred to be as defendants/defendants No. 1 and 2) seeking permanent prohibitory injunction restraining defendants from taking away timber or any part of converted from deodar tree felled illegally from his land comprised in Khasra No. 1164 situated in Mauja Khalini Shimla. The suit was dismissed by the trial Court however, in appeal, learned District Judge decreed the suit with costs by passing a decree for permanent prohibitory injunction restraining defendants from removing wood from the suit land either themselves or through their agents.

(2.) In present appeal, defendant No. 1, Municipal Corporation, Shimla assailed judgment and decree passed by learned District Judge (Forest), Shimla. Appeal was admitted on following substantial questions of law:-

(3.) Plaintiff is owner in possession of land comprised in Khasra No. 1164 situated in Mauja Khalini, District Shimla, H.P. as recorded in Intkhab Jamabandi Missal Haquit for the year 1999- 2000 (Ex. PW-1/A). On 20.12.2000 he submitted an application (Ex. PW-1/B) to defendant No. 2 for felling permission of two dried deodar trees situated in his land which were endangering life and property of plaintiff and others. Defendant No. 2 vide letter dated 2001 (Ex. PW-1/C), informed plaintiff that trees in question were in forest No. 28 and had been duly marked by the department and plaintiff was directed to get the spot demarcated through revenue officers on any working day to clarify the position on spot. On application of plaintiff for demarcation, PW-2 Krishan Lal Kanungo carried out demarcation on the spot in presence of DW-1 Mela Ram, Deputy Ranger of Municipal Corporation, Shimla and found the trees in question in land comprised in Khasra No. 1164, owned and possessed by plaintiff. He submitted his demarcation report dated 27.2001 (Ex. PW-2/A). However, defendants did not accept the said report for the reason that PW-2 Krishan Lal Kanungo was not competent to demarcate the land in question, as there was a boundary dispute about land owned by Government.