Jaswant Rai Verma vs Harbans Singh and Others

Gurdev Singh, J.—This second appeal has been preferred by the Appellant/Defendant, Jaswant Rai Verma, against the order dated 9.9.2010 passed by the Additional District Judge, (Adhoc), Ropar, vide which he accepted the first appeal preferred by the Respondents/Plaintiffs, vide which judgment and decree dated 9.1.2008 passed by the Additional Civil Judge (Senior Division), Anandpur Sahib, was set aside and a direction was issued to that court for complying with the direction already issued by the Additional District Judge, Rupnagar, vide order dated 23.2.2007.

The facts, in brief, are that the Plaintiffs filed suit for recovery of damages, to be assessed by the court, while appointing expert Local Commissioner, for digging and removing the earth/soil and cutting and removing the trees by the Defendant from their land measuring 12 kanals 15 marlas situated in village/town Anandpur Sahib, Hadbast No. 22. According to them, 60 types of various trees were standing in their land, which were removed by the Defendant, who also dug and removed the earth therefrom in order to fill up the site in front of the Government High School Mataur, without their authority and consent. They had made that land fit for residential and commercial purposes by spending huge amount and the nature of that property was destroyed by the said act of the Defendant.

The suit was contested by the Defendant, who denied the contentions of the Plaintiffs by filing his written statement. On the pleadings of the parties the issues were framed and they were given opportunity to produce their evidence in support of their respective pleas.

After going through the evidence so produced on the record and hearing learned Counsel for both the sides, the trial court recorded the findings on the issues and decreed the suit of the Plaintiffs for damages and passed a preliminary decree to the effect that the Plaintiffs were entitled to the damages @ Rs. 5/-per cubic meter of earth that was filled in opposite to the Government High School Mataur. Against that judgment and decree, the Defendant preferred an appeal, which was allowed by the Additional District Judge, Rupnagar, vide order dated 23.2.2007, and after setting aside the judgment and decree, the case was remanded back to the trial court to give specific finding as to what amount of damages the Plaintiffs were entitled to recover from the Defendant. Instead of doing that exercise and recording a finding about the quantum of damages, whole of the matter was decided afresh by the trial court. Finding on issue No. 1 was recorded against the Plaintiffs, whereas other issues were decided against the Defendant and accordingly the suit of the Plaintiffs was dismissed, vide judgment and decree dated 9.1.2008. The Plaintiffs preferred an appeal against that judgment and decree, which was allowed by the Additional District Judge, 3 Rupnagar, as aforesaid.

I have heard learned Counsel for the Defendant.

It has been submitted by the learned Counsel for the Defendant that no illegality was committed by the trial court while dismissing the suit after the case was remanded back to it by the first appellate court, after setting aside the first judgment and decree. On the basis of the evidence produced on record, it came to the conclusion that no such earth or trees had been removed from the land of the Plaintiffs. Therefore, the first appellate court could not have remanded back the suit, in view of the previous direction issued by the Additional District Judge, Rupnagar.

These submissions of the learned Counsel for the Defendant are devoid of merit. The finding of the trial court recorded, while passing the judgment dated 24.8.2005, that the Plaintiffs were successful in proving that the earth had been removed from their land by the Defendant, thereby causing damages to them, was never upset by the first appellate court. That judgment and decree was set aside only for the purpose of remanding back the suit to the trial court for determining the quantum of damages, which were left unassessed, to be assessed at the time of passing of the final decree. In that eventuality, the trial court had no jurisdiction to upset the above said finding which had already been recorded. It was only to determine the quantum of damages, in view of the direction issued by the first appellate court. No illegality was committed by the first appellate court while setting aside the judgment and decree so passed by the trial court, on the basis of the newly recorded finding, which it was not required to do so. It was only to assess the quantum of damages suffered by the Plaintiffs on account of the act of the Defendant in removing the earth from their land. When such is the position, the order of the first appellate court cannot be set aside. There is no merit in this appeal. The same is hereby dismissed.