2026:HHC:16403 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 324 of 2007 Reserved on: 19.03.2026 Date of Decision: 13.05.2026 Matha Ram @ Mast Ram (deceased) ...Appellants. Through LRs Versus Madan Singh (deceased) through ...Respondents. LRs and Ors. Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 For the Appellants : Mr R.K. Bawa, Senior Advocate, with Mr Ajay Kumar Sharma, Advocate. For Respondents No.1(a) to 1(e) and 2 to 4. : Mr. B.M Chauhan, Senior Advocate with Mr. Amit Himalvi, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 16th April, 2007 passed by learned District Judge (Forests), Shimla (learned Appellate Court) vide which the judgment and decree dated 23rd March, 2005 passed by learned Civil Judge (Junior Division) Jubbal Camp at Theog, District Shimla, H.P. (learned Trial Court) were partly set aside (Parties shall 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a Civil Suit for the recovery of ₹1,38,767/- along with pending and future interest and permanent prohibitory injunction for restraining the defendants from cutting and removing the trees from the suit land described in Para-1 of the plaint, changing its nature by raising any construction on it till it is partitioned by metes and bounds. It was asserted that the plaintiffs and defendants No.1, 3 & 4 are co- owners of the suit land. The suit land has not been partitioned formally. However, the parties are residing separately for cultivation. The suit land bearing Khasra No.195 and 440 had many deodar and other trees. Defendant No.1 and defendant No.2 cut and removed seven big deodar trees from Khasra No.195 and eight big deodar trees from Khasra No.440 without the plaintiffs’ consent. The defendants promised to pay the proportionate timber to the plaintiffs, but failed to honour their promise. Hence, the suit was filed to seek the relief mentioned above. 3. The suit was opposed by filing a written statement admitting that the suit land is jointly owned by the parties and 3 the co-sharers are residing separately for many years as per the family arrangement effected between them. It was asserted that every co-sharer has developed the land in his respective possession by raising an apple orchard over the share allotted to him. The family arrangement was oral and acted upon by all the co-sharers with an understanding not to interfere or claim an interest in the land of others. Hira Lal constructed a double- storeyed house at Khasra No.196, and no co-sharer objected to such a construction. Khasra Nos. 195 and 440 are in possession of the defendants and other co-sharers as per the family arrangement. Defendant No.1 has raised an apple orchard on Khasra No.440. Other co-sharer Palag Ram and Joginder have also raised an apple orchard on part of Khasra No.92(old) from which one portion of Khasra No.195 was carved out during the settlement. Plaintiff No.1 constructed a house in the village of Kemli and cut some trees from the land in his possession about 25 years ago. The other co-sharers, Narayan Dass, Palag Ram and Joginder, also removed a few trees for the construction of their house. Nobody raised any objection to the cutting of trees or raising of construction. The plaintiff filed a false suit to harass the defendants; hence, it was prayed that the suit be dismissed. 4. No replication was filed. 4 5. The learned trial Court framed the following issues on 21 February 2003: 1. Whether the plaintiff is entitled to the relief of a permanent prohibitory injunction as prayed for? OPP. 2. Whether the defendants Nos 1 & 2 have unauthorisedly cut 15 deodar trees from the suit land without the consent of the plaintiffs as alleged? OPP. 3. If issue No.2 is proved in affirmative, whether the plaintiff is entitled to claim sum of Rs. 1,38,767-/- from defendants No.1 & 2 as alleged? OPP. 4. Whether a family partition amounting to private partition qua the suit land has taken place between the parties, if so, its effect. OPD. 5. Relief. 6. The parties were called upon to produce the evidence, and the plaintiffs examined Rajinder Kumar (PW-1), Chandu Lal (PW-2), Balbir Singh (PW-3), Raj Pal (PW-4), Naresh Kumar (PW-5), Pawan Kumar (PW-6), Pratap Singh (PW-7), and Chuni Lal (PW-8). The Defendants Examined Surender Singh (DW-1), Rakesh Kumar (DW-2), and Deep Ram (DW-3). 7. The learned Trial Court held that the copies of the jamabandies placed on record showed the joint ownership of the parties over the suit land. An entry in the copy of the jamabandi carries with it a presumption of correctness, and no evidence was led to rebut this presumption. Rather, Surender Kumar (DW-1) admitted in his cross-examination that Khasra Nos. 440 and 195 are owned by the plaintiffs and defendant Madan Singh, etc. The 5 parties cultivated the land separately, but this does not constitute a formal partition as is understood in law. No proper demarcation was conducted in the present case to determine that the trees were cut from Khasra Nos. 195 and 440. The photographs were not sufficient to establish this fact; hence, the learned Trial Court answered issues Nos. 1 to 4 negatively and dismissed the plaintiffs’ suit. 8. Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal, which was decided by the learned District Judge (Forests), Shimla (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the suit land was jointly owned and possessed by the parties. Mere separate cultivation does not amount to any formal partition as is understood in law. The plaintiffs had not obtained any demarcation, and there was no proof of the fact that the defendants had cut fifteen trees from Khasra Nos. 195 and 440. They also failed to prove the class of the trees or their value. Hence, there was no evidence to prove that the plaintiffs had suffered damages worth ₹1,38,767/-. The statements of the official witnesses proved that some trees were felled by defendants No.1 & 2 from the joint land, which was also apparent 6 from the photographs placed on the record. A co-sharer is not entitled to cut and remove the trees from the joint land; hence, the appeal was partly allowed, and defendants N.1 & 2 were restrained from removing any tree from the joint land till it is partitioned. 9. Being aggrieved by the Judgment and decree passed by the learned Appellate Court, the plaintiffs have filed the present appeal, which was admitted on the following substantial questions of law on 30th July, 2007: 1. Whether once the learned First Appellate Court has decreed the suit of the plaintiffs for grant of permanent prohibitory injunction, holding that the suit land is joint between the parties and the defendants have been proved to have cut/removed trees from the suit land, it has wrongly and incorrectly dismissed the suit of the plaintiffs with regard to the recovery of Rs.1,38,767/- from the defendants being value of the trees felled by the defendants/respondents? 2. Whether the learned First Appellate Court has lost sight of the fact that the factum regarding the number of trees cut and removed by the defendants from the suit land could always be ascertained by appointment of a Local Commissioner, and in fact, the learned Courts have failed to exercise the jurisdiction duly vested in them? 3. Whether the learned First Appellate Court has erred by not taking into consideration that the learned trial Court has obviated its liability to properly and effectually decide the real controversy between the parties and it has erred in law in not appreciating that the statements of PWs-6, 7 and 8 pertained to record maintained by Public Officer in discharge of their duties and the same could always be 7 summoned by the learned Trial Court for deciding the real controversy between the parties? 10. I have heard Mr R.K. Bawa, learned Senior Advocate, assisted by Mr Ajay Kumar Sharma, learned counsel for the appellants/plaintiffs and Mr B.M. Chauhan, learned Senior Advocate, assisted by Mr Amit Himalvi, learned counsel for respondents No.1(a) to 1(d) and 2 to 4. 11. Mr R.K. Bawa, learned Senior Advocate for the appellants/plaintiffs, submitted that both the learned Courts below erred in holding that the plaintiffs had not proved that the trees were cut from the joint land. The statements of the plaintiffs' witnesses proved that the trees were cut from the suit land, which is jointly owned by the parties. The learned Courts below erred in rejecting such evidence. The plaintiffs had filed an application for the appointment of a local commissioner, but no order was passed on it. The learned Appellate Court granted relief of a permanent prohibitory injunction after holding that the trees were cut from the joint land. The relief of damages could not have been declined after such a finding. The findings recorded by the learned Appellate Court are contradictory. Hence, he prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside. 8 12. Mr B.M. Chauhan, learned Senior Advocate for respondents No.1(a) to 1(d) & 2 to 4, submitted that the jurisdiction of this Court is restricted to the substantial questions of law framed by this Court while admitting the appeal. Both the learned Courts below have concurrently held that the plaintiffs’ evidence was not sufficient to prove that the trees were felled from the suit land. This is a pure finding of fact, and this Court should not interfere with it while deciding a regular second appeal. Hence, he prayed that the present appeal be dismissed. 13. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial question of law No.2. 14. Mr R K Bawa, learned Senior Advocate, submitted that the learned Trial Court and Appellate Court failed to notice the application filed by the plaintiffs for the appointment of a local commissioner and dismissed the suit on the ground that the plaintiffs had not proved that the trees were felled from the joint land. This omission seriously prejudiced the plaintiffs. This submission has to be accepted as correct. The record shows that an application under Order 26 Rule 9 of the CPC was filed by the plaintiffs on 14th August, 2002. The defendants filed a reply to the 9 application on 15th November, 2002. The matter was adjourned for consideration of the application for 21st February, 2003. However, the order sheet is silent regarding the consideration of the application or any order passed by the Court. The Court failed to notice the fact that the application for the appointment of a Local Commissioner was pending and passed the judgment and decree. 15. The plaintiffs filed an appeal and took a specific objection that the fact regarding the number of trees removed by the defendants from the suit land could always be ascertained by the appointment of a Local Commissioner for demarcating the land, and the learned Trial Court had failed to exercise the jurisdiction vested in it. No finding was recorded by the learned Appellate Court regarding this plea. 16. Thus, it is apparent that the learned Trial Court had failed to exercise the jurisdiction vested in it for the appointment of a Local Commissioner by passing an order on the plaintiffs’ application. The appointment of the Local Commissioner was essential because only a Local Commissioner could have determined the fact whether the trees had been cut from Khasra No.195 and 440. It was held by this Court in Bainsu vs Budhia 2025:HHC:573 that a judgment pronounced by the Court 10 without deciding a material application is not sustainable. Thus, the judgments passed by the learned Courts below cannot be sustained, and this substantial question of law is answered accordingly. Substantial question of law No. 1 and 3. 17. Since the learned Courts below failed to pass an order on the application for the appointment of a local commissioner and the matter is required to be remitted to the learned Trial Court, these substantial questions of law have become redundant. Final Order 18. Since the learned Trial Court failed to decide the application for the appointment of a Local Commission, there is no option but to remit the matter to the learned Trial Court with a direction to decide the application for Local Commissioner as per law and thereafter proceed in the matter as per law. 19. In view of the above, the present appeal is allowed, judgments and decrees passed by the learned Courts below are ordered to be set aside. The matter is remitted to the learned Trial Court for deciding it afresh after passing an order on the application for the appointment of a Local Commissioner filed by 11 the plaintiffs as per the law. Needless to say, the observation made hereinbefore by this Court for deciding the present appeal or by the learned Appellate Court for deciding the first appeal will not influence the discretion of the learned Trial Court to appoint a Local Commissioner, which will be exercised as per the law. The parties, through their learned counsels, are directed to appear before the learned Trial Court on 16.06.2026. The record be sent forthwith to reach the learned Trial Court well before the date fixed. (Rakesh Kainthla) Judge 13th May, 2026 (Kiran)