Sushil Kumar and Co. vs Hari Mohan and Others

V.P. Gupta, J.

(Only portions approved for reporting have been reported.)

The Plaintiff (a registered partnership firm) has filed the present suit on 18-1-1983 for declaration that the Plaintiff is the owner of the trees marked by the forest authorities standing on the land comprised in Khasra Nos. 7, 15, 18, 24, 13, 14, 27, 25, 16, 20, 22, 33, 34, 35, 36, 45, 30, 31, 32 and 26 situated at Mauza Jungle Kamal Pandal, Pargana Rampur, Tehsil Ram Shahar, District Solan and also the logs (converted out of the trees) lying stacked near Keyardoo on road-side between Diggal and Ghamrola Khad, Tehsil Nalagarh along with pulp wood etc. with a consequential relief that the Defendants be restrained by prohibitory injunction from cutting, felling, removing, lifting, transporting or exporting the marked or felled trees or timber from the aforesaid land. In the alternative the Plaintiffs have claimed a sum of rupees two lakhs as damages etc.

The Plaintiffs allege that Defendants Nos. 4 to 30 or their predecessors executed agreements for a valuable consideration in November, 1977 in favour of the Plaintiffs for sale of cheel trees standing upon the disputed land and the rate per tree was settled. After these agreements, applications were filed by Defendants Nos. 4 to 30 or their predecessors with the D.F.O. for getting marking/felling orders of the trees. These applications were accompanied by original agreements of sale.

Thereafter consolidation proceedings took place in the village and the land was demarcated by the concerned authorities. Numeration lists of the standing trees which had been marked for felling purposes were also prepared. The trees, however, could not be removed or felled for a considerable period. The Plaintiffs subsequently agreed to give some enhanced rates to Defendants Nos. 4 to 30 or their predecessors and for this reason fresh agreements of sale were executed and fresh applications for marking of trees and for getting felling orders were filed before the concerned authorities.

Demarcations were given by the revenue authorities in the presence of the forest authorities on 27-5-1982 and 8-7-1982. After the demarcation, the forest authorities issued fresh felling orders. Defendants Nos. 4 to 30 had realised the price of the trees in pursuance to the agreements entered between them and the Plaintiffs in 1977 and May 1980. The price of the trees was enhanced subsequently and finally the payment was made in 1982 at the rate of Rs. 500/- per tree. Some amounts of advances had been realised by the Defendants earlier and these advances were adjusted on the date of the payment. It is alleged that a total amount of Rs. 93,080/- was paid to the Defendants Nos. 4 to 30 and the possession of the trees was handed over by Defendants Nos. 4 to 30 to the Plaintiffs on 27-5-1982 and 8-7-1982.

It is alleged that Defendants Nos. 1 and 2 claiming themselves as partners/proprietors of M/s Kashyap and Company started interfering with the Plaintiffs rights on 22-9-1982, when they wanted to put their hammer mark upon the logs belonging to the Plaintiffs. They also threatened to cut, fell and remove the trees from the disputed land. The Plaintiffs filed civil suits in the Court of Sub-Judge Nalagarh and during the pendency of these suits they came to know that Defendants Nos. 1 and 2 had entered into some agreements with Defendants Nos. 4 to 30. The Plaintiffs made enquiries and it was disclosed that Defendants Nos. 1 and 2, claiming themselves as partners and proprietors of M/s Kashyap and Co. and they have in collusion with the forest authorities got their names incorporated in the endorsements of the felling orders. The Plaintiffs now allege that the Defendants have got their names inserted by mis-representation etc. Defendants Nos. 4 to 30 had already entered into agreements of sale with the Plaintiffs and could not enter into fresh agreements with Defendants Nos. 1 and 2 because Defendants Nos. 4 to 30 in fact had no subsisting rights, in the trees. At the time of the filing of the suits in the Court of Sub-Judge, Nalagarh, the Plaintiff firm was un-registered and, therefore, the aforesaid suits pending in Nalagarh Court were likely to fail on a tachnical defect. The Plaintiffs as a precautionary measure moved applications for the withdrawal of these suits and have now filed the present suit.

Defendants Nos. 4 to 21, 24, 25 and 30 admit the Plaintiffs claim but they allege that the suit is bad for mis-joinder of parties and they have un-necessarily been impleaded. They had sold their rights in the trees to the Plaintiffs.

Defendants Nos. 1 and 2 contest the Plaintiffs'' suit and have raised preliminary objections, such as, the suit is not maintainable, is not crrectly valued, is not within time, is barred u/s 12 read with Order 23 CPC and is bad for mis-joinder of parties. They also allege that the Plaintiffs have no cause of action and the cause of action, if any, arose prior to 28-12-1982 when the Plaintiffs firm was not registered. The suit is also hit u/s 19 of the Himachal Pradesh Forest Produce (Regulation of Trade Act), 1982.

On merits, they allege that the Defendants Nos. 4 to 30 never entered into any agreements with the Plaintiffs in 1977 and they could not enter into any agreements of sale because the Plaintiffs firm was not in existence in November, 1977. The agreements of sale relied upon by the Plaintiffs are forged and manufactured documents. These were never relied upon in the suits filed in the Court of Sub-Judge, Nalagarh, which suits were dismissed as withdrawn on 22-1-1983. They further allege that no felling orders were issued by the forest authorities in favour of the Plaintiffs and the alleged new agreements do not mention the old agreements of 1977. Defendants Nos. 4 to 30 had sold the trees in dispute to Defendant No. 2 vide agreements dated 15-2-1980. Hiroo Ram and Nazroo executed agreements on 5-11-1975 and 9-11-1975 respectively. Hiroo Ram''s heirs/representatives are Defendants Nos. 27 and 28. Similarly Lachhi Ram, Beli Ram executed agreements on 5-11-1975. The legal representatives of Nazroo Ram are Jit Ram (Defendant No. 11) and Shantoo (Defendant No. 12) and these Defendants renewed the old agreements on 15-2-1980. Ravinder (Defendant No. 23) also executed an agreement on 14-12-1975 which was renewed on 15-2-1980. Laiq Ram (Defendant No. 26) entered into an agreement on 9-11-1975 which was renewed on 15-2-1980. Abhi Ram (Defendant No. 24) and Nardu (Defendant No. 25) also entered into agreements on 9-11-1975 and renewed the same on 15-2-1980.

In view of the aforesaid position, the Plaintiffs or Defendants Nos. 4 to 30 could not apply for demarcation and felling orders in March, 1982, as they had already applied in February and December, 1981 to demarcate the land and grant felling orders in favour of Defendant No. 2 M/s Kashyap and Co., Dharampur. It is alleged that on 2-6-1982 Defendant No. 2 on behalf of the firm Kashyap and Co. applied for a joint demarcation of land and this demarcation was given in July, 1982 in the presence of the Range Officer, Ram Shahar. No demarcation was ever given to the Plaintiffs. The Plaintiffs have forged the documents in collusion with Abhi Ram (Defendant No. 24) who was a commission agent of Defendant No. 2. The possession of the trees was never handed over to the Plaintiffs but they in collusion with Abhi Ram (Defendant No. 24) are trying to take undue advantage. It is alleged that Abhi Ram (Defendant No. 24) did not hand over the receipts to Defendant No. 2, but prepared forged receipts in favour of the Plaintiffs. The Defendant No. 1 is not a partner of the firm Kashyap and Co. and that Defendant No. 2 is the sole proprietor of this firm. The filing of the civil suits in the Court of Sub-Judge Nalagarh is admitted but it is alleged that the present suit is not maintainable. The Plaintiffs'' claim to the trees, timber or the pulp wood and to any amount on account of damages/compensation or interest is denied. All other allegations of the plaint are denied.

Defendants Nos. 22, 23 and 26 to 29 have filed a separate written statement and have supported the version of Defendants Nos. 1 and 2. They have also raised similar preliminary objections and have alleged that the Plaintiffs'' suit has been filed on false and baseless allegations.

Replication was filed on behalf of the Plaintiffs and in the replication the allegations of the plaint are re-asserted.

On the pleadings of the parties, the following issues were framed on 30-5-1983:

Whether the suit is not maintainable as alleged in paras 1, 6 and 8 of the preliminary objections? OPD

Whether the suit has been correctly valued for the purposes of Court fee and jurisdiction? OPP

Whether the suit is not within limitation? OPD

Whether the suit is barred u/s 12 CPC read with Order XXIII Rule 1 Code of Civil Procedure, as alleged? OPD

Whether the suit is bad for mis-joinder of parties? OPD

Whether the Plaintiffs have no cause of action? OPD

Whether the Plaintiffs are the owners of the disputed trees and timber as alleged? OPP

Whether the Plaintiffs are entitled to the relief of injunction? OPP

In case issues Nos. 7 and 8 are not proved then whether the Plaintiffs are entitled to Rs. 2,00,000/- or any other amount on account of damages/costs of the trees and timber? If so, from whom? OPP

Whether the Defendant No. 2 is the owner of the trees and timber as alleged? OPD

Whether the suit has been filed by the Plaintiffs in collusion with Abhi Ram, Defendant No. 24, as alleged? OPD

Relief.

I have heard Shri Devinder Gupta Counsel for the Plaintiffs and Shri K.S. Patyal Counsel for Defendants Nos. 1 and 2 and have also gone through the records of the case.

My findings on the various issues are as follows:

Issue No. 1:

The learned Counsel for the Defendants conceded that the form of the suit is proper and the Plaintiffs'' firm was registered on 28-12-1982. He did not advance any arguments on the objection raised in para 6 of the written statement. He only contended that the cause of action had arisen when the Plaintiff firm was an unregistered firm. As the Plaintiff firm is now a registered firm, therefore, the bar of Section 69 of the Indian Partnership Act is not applicable for the maintainability of the suit even for any cause of action which had arisen prior to its registration.

It was further contended that the Himachal Pradesh Forest Produce (Regulation of Trade) Act, 1982 (hereinafter the Act) came into force on 1-10-1981 and that the present suit was hit by Section 19 of the Act. The Plaintiffs were not competent to apply for demarcation, marking and felling of the trees after the coming into force of this Act. It was, however, admitted that the present dispute was regarding the ownership of the trees situated in the land and the process of marking etc. was to come into effect later on. He contended that u/s 19 of the Act no relief of injunction could be granted to the Plaintiffs.

The learned Counsel could not convince me as to how and in what manner the provisions of Section 19 of the Act are applicable in the present case. There is a dispute of civil nature between the parties regarding ownership of the trees. The relief of injunction is only a consequential relief and will follow from the main relief of ownership. Further, the provisions of Section 19 of the Act are in the nature of administrative and executive provisions which are of a transitory nature. In these circumstances, the contention of the learned Counsel for the Defendants that the present suit is hit u/s 19 of the Act, cannot be accepted.

The learned Counsel for the Defendants raised another contention to the effect that the present suit is not competent in view of the provisions of Section 69(2) of the Indian Partnership Act. He contended that the Plaintiffs had not disclosed the names of the persons who were shown as partners in the register of firm, and the certified copy of the register of the firm showing the names of the partners in the firm had not been produced and that these were mandatory provisions. In support of his contention he relied upon A.I.R.1964 P&h 270 (Firm Bharat Sarvodaya Mills Co. Ltd. Vs. Mohatta Brothers, and AIR 1971 J &K 109 (M/s Badrimal Ramcharan and Co. v. M/s Gana Kaul and Sons and Ors.) and AIR 1952 Nag 57 (Kapurchand Bhagaji firm v. Laxman Trimbak and Ors.). The learned Counsel on behalf of the Plaintiffs contended that the Defendants never raised any such objection in the written statement or at the time of the framing of issues. He also contended that a copy of the registration certificate (Ex. P-I) was produced and the suit was filed on behalf of the firm through Smt. Laj Rani (one of the registered partners of the firm). Besides this he contended that the matter having not been put in issue and also not raised in the written statement was not contested. In support of his contention he relied upon M.J. Velu Mudaliar and Another Vs. Sri Venkateswara Finance Corporation and Others,

I may mention at the outset that this objection is not specifically raised by the Defendants in their written statement and no specific issue on this objection was framed. The Plaintiffs have specifically mentioned in the title clause as well as in para 1 of the plaint that the suit is by a registered firm through Smt. Laj Rani, who is one of the registered partners of the firm. A copy of the certificate of registration (Ex. P-l) is also attached and a mention of the same is made in para 1 of the plaint. The Defendants in their written statement have denied the contents of para 1 of the plaint due to lack of knowledge and have not specifically denied the same. Sushil Kumar (PW. 1) states that the Plaintiffs is a registered firm and he is one of its partners. He proves the copy of the registration certificate (Ex. P-l) and states that he had brought the original registration certificate. He was not cross examined at all on this issue. The Defendant Mansukh Ram (DW-4) has not stated anything in his statement about this fact. In these circumstances, it can safely be presumed that the Defendants never contested this position.

In Firm Buta Mal Dev Raj (supra), the facts were that a partnership firm was constituted by a partnership deed dated the 14th of February, 1947 and in this deed Dev Raj, Parkash Wati and Wadawa Mal were named as partners. This firm was registered with the Registrar of Partnerships on 1st of February, 1949 but in the register only the names of Dev Raj and Parkash Wati were registered as partners. The name of Wadawa Mal was not shown in this register as a partner. When the suit was filed by the firm it was admitted during the course of the suit that Wadawa Mal remained a partner throughout and was a partner at the time of the institution of the suit. In these circumstances, the learned Judges of the Division Bench held that the suit was not maintainable u/s 69(2) of the Partnership Act. It was held that when a suit is instituted in the name of a registered firm then all the partners in the firm at the time of the institution of the suit must be or have been shown as such in the register. The suit is on behalf of all the partners and not only such of them as are shown in the register as such and all the partners must be "the persons suing" contemplated in Section 69(2) of the Act. Thus, the facts of this case are distinguishable in so much as that the name of one partner was found missing in the register which was maintained by the Registrar of firms at the time of registration of the firm, although admittedly he was a partner. The suit was, therefore, defective and therefore in these facts and circumstances the suit was held not to be maintainable.

In Bharat Sarvodaya Mills Co. Ltd. (supra), it was held that a ''Firm'' has no legal entity and a suit by a ''Firm'' is to be treated as a suit by all the partners at the time of the accrual of the cause of action. The learned Judges after discussing the scope of Section 69(2) of the Partnership Act read with Order 30 CPC came to the conclusion that a suit could only be filed by or on behalf of the firm against a third party if the firm was a registered firm and the persons suing were or had been shown in the register of firms as partners in the firm. It was held that both the conditions should be fulfilled. In this judgment the Defendant Company in the written statement had alleged that the Plaintiff firm could not maintain the suit as the constitution of the old firm of Mohatta Brothers Ahmedabad, which acted as the Managing Agents of the company had been changed on or about 4th October, 1949 and from that date the said firm of Mohatta Brothers which acted as managing agents of the Company consisted of six persons including No. 6 Satyavatidevi Mohatta. The said newly constituted firm of M/s Mohatta Brothers having not been registered and as the cause of action had accrued in favour of that firm the present suit was not maintainable. On the facts and circumstances of the case, the learned Judges found on a question of fact that the name of this partner (Satyavatidevi Mohatta) was not shown in the entry Ex. 178 with the Registrar of Firms and, therefore, defect of non-compliance of Section 69(2) was fatal to the Plaintiff''s suit. Thus, a specific objection had been taken regarding constitution of the registered firm and on a question of fact, it was found that the name of one of the partners was not found in the register of firm which was registered with the Registrar of Firms and such a suit was held to be not maintainable. This judgment is again not applicable in the facts and circumstances of the present case because no such objection was ever taken by the Defendants and there was no occasion for the Plaintiffs to produce any evidence regarding the names of the partners as are entered in the register with the Registrar of Firms.

In M/s Badrimal Ramchandran and Company (supra) it is again held that if a certain person was inducted as a partner in the partnership firm but no intimation of this was given to the Registrar of Firms and so no change was made in the register, a suit on behalf of such firm would not be maintainable. This judgment has again no applicability to the facts of the present case.

In Kapurchand Bagaji Firm (supra), the same principles are mentioned. The Plaintiff had alleged that it was a registered firm and the managing partner was one Umedmal. This allegation was denied and the right of Umedmal to file a suit was also denied. The Plaintiff did not produce any evidence except oral evidence of Kapurchand, who stated "our partnership consists of Chandmal, Umedmal and myself. It is duly registered. I am the managing partner". In these circumstances, the learned Judge held that the best evidence regarding registration of the firm as well as the constitution of the firm had not been produced and the statement can only be treated as secondary evidence. This case is also, therefore, distinguishable.

In M.J. Velu Mudaliar and Anr. (supra) it was held that where an objection in the written statement regarding the non-compliance of the provisions of Section 69 had been taken by the Defendants, but no issue was framed on such objection, the Defendants could not raise the plea of Section 69 for dismissal of the suit in appeal. It was further held that the Defendants could not raise this plea because the Defendants also did not call upon the Plaintiff to disclose the names of the partners of the firm.

In the present case, the Defendants have not specifically raised the objection and there was no occasion for the Plaintiff to have produced the copy of the register of firms showing the names of the partners of the registered firm. The statement of Sushil Kumar (PW-1) was also not challenged during the evidence. Under Order 30 CPC a firm although not legal entity is entitled to sue or be sued in the name of the firm and the suit can be filed through a partner. If such a suit is filed then under Order 30 Rule 2 CPC the Defendant is at liberty to ask the Plaintiff to disclose the names of the persons constituting the firm on whose behalf the suit is instituted. This enabling provision under Order 30 Rule 2 CPC safeguards the interests of the Defendants if they have any doubts regarding the names of the partners who constitute the firm and on whose behalf the suit is filed in the name of the firm. In the present case, the Defendants never demanded the names of the partners who constituted the Plaintiff firm and on whose behalf the suit was filed. Thus in view of the aforesaid circumstances, I am of the view that the contention of the Defendants'' Counsel that the suit is not maintainable u/s 69(2) cannot be accepted. In these circumstances, issue No. 1 is decided against the Defendants.

Issue No. 2:

This issue is not contested by the learned Counsel for the Defendants.

The valuation is to be calculated in the manner stated in Section 7(iv)(c) of the Himachal Pradesh Court Fees Act. The disputed trees are 298 in number and the maximum price of each tree is stated to be Rs. 500/-. The valuation of all these trees comes to less than rupees two lakhs. The Plaintiff has paid a Court fee on rupees two lakhs on the main relief. In the alternative relief, the Plaintiff has claimed damages/compensation to the extent of rupees two lakhs. Court fee on this amount is already paid. Hence the suit is correctly valued for the purposes of Court fee and jurisdiction. This issue is decided in favour of the Plaintiffs.

Issue No. 3:

This issue is not pressed by the learned Counsel for the parties. It is admitted by the parties that the cause of action arose in September 1982. The suit was filed on 18-1-1983 and as such is within time.

Issue No. 4:

The learned Counsel for the Defendants contended that the present suit was barred u/s 12 read with Order 23 Rule 1 CPC because the Plaintiff had filed civil suits in the Court of Sub-Judge, Nalagarh, which were dismissed on 22-1-1983. The Plaintiff was not granted any permission to file fresh suit on the same cause of action.

The learned Counsel for the Plaintiff contended that the suits which were filed in the Court of Sub-Judge Nalagarh were by an unregistered firm. u/s 69 of the Indian Partnership Act, an unregistered firm could not file any suit and for this reason those suits were likely to be dismissed on technical grounds because the Defendants had raised objections to that effect in the written statements. For these reasons the present suit was filed after getting the Plaintiff firm registered on 28-12-1982. He further contended that the present suit is not barred because the present suit was filed on 18-1-1983 and the Defendants had raised the objections in their written statements dated 19-12-1982 while the suits were dismissed as withdrawn on 22-1-1983, that is, during the pendency of the present suit.

I have considered the contentions.

The provisions of Order 23 Rule 1 CPC are not applicable to the facts and circumstances of the present Case. It is admitted that an unregistered firm cannot file any suit to enforce a right arising from the contract in any Court under the provisions of Section 69 of the Indian Partnership Act. The Plaintiffs'' suits in the Court of Sub-Judge Nalagarh were to be dismissed by an order of the Court or by some act on the part of the Plaintiff because the Defendants had raised objections in their written statements. The copies of the plaints of those suits are Ex. D-l95 to D-198 and the copies of the written statements are Ex. D-206 and D-207 The Defendants had raised the objection regarding the maintainability of the suit as the Plaintiff firm was an unregistered firm. The Counsel for the Plaintiff gave statements and copy of one of such statements is Ex. D-205, in which it is prayed that the suit may be dismissed. The Sub-Judge passed orders under Order 23 Rule 1 CPC on 22-1-1983, dismissing the Plaintiffs suits as withdrawn. Some of the copies of the orders are Ex. D-l99 to D-204.

As these suits were not dismissed on merits, therefore the bar of res judicata is not applicable and the same was also not urged by the learned Counsel for the Defendants. It is an admitted position that if a suit is dismissed on a technical ground that the same is not maintainable, then a fresh suit can always be filed after the registration of the firm.

The provisions of Order 23 Rule 1 CPC otherwise also will not apply in this case because in Ex. D-199 to D-204 (copies of the orders) it is mentioned that the Plaintiff moved applications for the withdrawal of the suit on 13-1-1983 (after filing of the written statement) and on this application as also the statement of the Plaintiff, the suits were dismissed as withdrawn. The Plaintiff withdraw the suits upon the objection raised by the Defendants in their written statement regarding the maintainability of the suit on the grounds of non-registration of the Plaintiff firm. The present suit filed by a registered firm is maintainable and cannot be dismissed on the ground that the earlier suits were dismissed under Order 23 Rule 1, Code of Civil Procedure.

In a Division Bench judgment of the Lahore High Court, AIR 1935 Lah 893 , Firm Krishan Lal Ram Lal v. Abdul Ghafur Khan, it is held that the dismissal of a suitby an unregistered firm is no bar to a fresh suit after the registration of the firm if the same is otherwise within time. In AIR 1937 146 (Nagpur) it is held that a suit by an unregistered firm which had been dismissed earlir could still be filed after the registration of the firm although the same was on the same cause of action. In these circumstances, this issue is held against the Defendants.

Issues Nos. 5 and 6:

These issues are not pressed by the learned Counsel for the Defendants. A perusal of the plaint shows that the present suit is not bad for mis-joinder of parties. On the allegations of the plaint the Plaintiffs have a cause of action. In these circumstances, both these issues are decided against the Defendants.

Issue No 11:

xx xx xx38. xx xx xx As there is no evidence of collusion, therefore, this issue is decided against the Defendants.

Issues Nos. 7 and 10:

Both these issues are being disposed of together. The learned Counsel for the Plaintiff contends that the Defendants Nos. 4 to 30 or their predecessors entered into agreements for sale of trees with the Plaintiff in 1977-78. The applications for marking and felling orders were filed with the forest department during this period along with relevant extracts from the revenue records. The enumeration list of trees were also prepared, but in the mean time consolidation proceedings took place in the village and the khasra numbers were changed. For this reason the forest authorities could not issue the necessary marking and felling orders.

After the completion of the consolidation proceedings, the Plaintiff got fresh agreements executed from the Defendants Nos. 4 to 30 or their predecessors in May 1980. On the basis of fresh agreements the Plaintiff again applied for the demarcation and felling orders to the forest authorities with relevant extracts of the revenue records. The agreements of the year 1977-78 were on plain papers, but the agreements executed in May 1980 were on stamp papers. It is contended that the Plaintiff became the owner of the trees in 1977-78 and part payments of the price were also made in the year 1977-78. The remaining sale price was paid subsequently. By July, 1982, the whole of the sale consideration was paid to Defendants No. 4 to 30 or their predecessors and the possession of the trees had also been delivered to the Plaintiff. Defendant Nos. 1 and 2 started interfering with the Plaintiff''s rights and threatened to cut, fell and remove the trees although the Plaintiffs were the owners of the same. Defendants Nos. 1 and 2 proclaimed that they had purchased the trees from Defendants Nos. 4 to 30 or their ancestors. It is contended that Defendants Nos. 1 and 2 in collusion with other Defendants and the forest department are interfering with the Plaintiff''s rights although they have no rights in the disputed trees and are not owners of the same.

The learned Counsel for Defendants Nos. 1 and 2 contends that the Defendant No. 2 purchased the trees in dispute from Defendants Nos. 4 to 30 or their ancestors in 1975. Afterwards fresh agreements were also executed in 1980. Defendants Nos. 4 to 30 had no right to sell or transfer the trees to the Plaintiff in 1977-78 or 1980. He contends that the agreements of sale were executed in favour of Defendant No. 2 by the zimidars and the sale price of the trees was paid to the zimidars through Abhi Ram (Defendant No. 24). Abhi Ram (Defendant No. 24) is now colluding with the Plaintiff although he was paid huge amounts by Defendant No. 2 for the sale of the trees and for payment of the price of trees to other zimidars.

The demarcation and the felling orders were issued in favour of Defendants Nos. 1 and 2, who took active part in filing such applications to the forest authorities after purchase of trees. The felling and marking orders were in the name of M/s Kashyap and Company. It is further contended that Defendant No. 2 also spent huge amount for purchase of trees as well as for cutting, removing, converting the same into timber, and for carrying the same to the road-side depots approved by the forest department.

I have considered the contentions of the learned Counsel for the parties.

Ex. D-25 to D-30 are agreements of November 1975 and December 1975 in favour of M/s Kashyap and Company.

to 51. xx xx xx 52. In view of the aforesaid discussion, it is proved that the alleged agreements for the sale of trees in favour of Defendants Nos. 1 and 2 were not executed in the year 1975 and the Defendants Nos. 1 and 2 never, became the owners of the trees in 1975.

The next question is as to whether the Plaintiff purchased the trees from the zimidars in 1977-78 as alleged. The photostat copies of agreements in favour of the Plaintiff are Ex. P-2 to P-11. These agreements were executed between 7-11-1977 to 10-1-1978.

The learned Counsel for the Defendants contends that these copies (although exhibited) cannot be read in evidence because the original agreements were not stamped. He referred to AIR 1971 1070 (SC) in which it is held that Section 30 of the Stamp Act does not apply to secondary evidence adduced in proof of the contents of a document which is unstamped or insufficiently stamped.

The Plaintiff was allowed to produce secondary evidence vide my orders dated 8-8-1983. The Plaintiff produced the photostat copies of the aforesaid dcuments/agreements and the same were exhibited. The learned Counsel for the Defendants did not object to their admissibility on the ground that the original agreements were unstamped. Whatever may be the position, in view of Section 91 of the Evidence Act read with Sections 35 and 36 of the Stamp Act, photostat copy of a document which was insufficiently stamped will be inadmissible in evidence as held in Jupudi Kesava Rao (supra).

In the present case, however, the judgment in Jupudi Kesava Rao (supra) has no applicability because the agreements Ex. P-2 to P-11 relate to the sale of timber trees. The zimidars agreed to sell the timber trees situate in their lands to the Plaintiff. Such agreement or memorandum of agreement does not require any stamp and is exempted from Stamp Duty under Article 5 of Schedule 1(a) of Indian Stamp (Himachal Pradesh Amendment ) Act, 1969 (Act No. 16 of 1970).

The Plaintiff is a forest contractor and deals in timber business. The trees sold are pine-trees (cheel trees) which are used for timber. These trees are to be severed from the land. The sale of timber trees which are to be severed from the earth is a sale of movable property and ''standing timber'' is excluded from the definition of ''immovable property'' in Section 3 of the Transfer of Property Act.

In Shantabai Vs. State of Bombay and Others, it is held that a tree can be regarded as standing timber, it must be in such a state, if cut, it could be used a, timber; and when in that state it must be cut reasonably early.

In a Division Bench judgment of this Court State of Himachal Pradesh and Another Vs. Motilal Partap Singh and Co. and Another, it was held that whether a tree is a timber tree or not depends upon its nature and the use to which it is generally put and not upon whether there is a present intention in the mind of its owner of cutting it sooner or later. The determining factor in such cases is the intention of the parties as determined by the circumstances of each case and the nature of the transactions, if the factors went to indicate that the parties intended to deal with the trees as timber, then it would be called ''standing timber''. It was further observed that the agreement related to sale of Deodar, Kail and Rai trees. It is common knowledge that Deodar, Kail and Rai are used for building. Only those trees which were to be marked by the forest department silviculturally were to be felled. In other words marked trees were fit to be cut and used as timber. The intention of the parties was that the tress should be cut immediately. And this is evident from the fact that as many as 935 trees had been cut within a short period. Thus it can be said that the agreement related to the ''standing timber'' which is not immovable property and did not require registration.

In Baijnath Vs. Ramadhar and Another, the question for determination was as to whether the agreement regarding sale of trees was with respect to standing timber or not. The trees involved were Shisham and Neemand both these trees were held to be standing timber and as such not within the definition of immovable property.

In the present case the trees which have been agreed to be sold were cheel trees and cheel trees are generally used for building purposes. These trees were meant to be cut and removed and put to sale in the market as timber to be used in building construction. Hence the present agreements regarding purchase of trees from the zimidars related to the purchase of goods or movable property. These agreements did not require any stamp because of the exemption clause in Article 5 of Schedule 1 of the Stamp Act.

In view of the aforesaid discussion, the contention of the Defendants'' Counsel is not accepted and it is held that Ex. P-2 to P-l 1 can be read in evidence.

to 66. xx xx xx67. xx xx xx xx The cumulative effect of the agreements and the subsequent conduct of the parties establishes that the trees were purchased by the Plaintiff in 1977-78.

The learned Counsel for the Defendant No. 2 contends that Defendant No. 2 purchased the trees in February 1980 from the various zimidars. To find out as to whether the Defendant No. 2 purchased the trees of jungle Kamai Pandal from the zimidars in February 1980, it is necessary to refer to the various documents referred to by the learned Counsel for the parties.

to 82. xx xx xx 83. The close scrutiny of the various documents read with the oral evidence which has been discussed in detail and also the various circumstances lead us to an irresistible conclusion that no agreements for sale of trees were executed by the zimidars in favour of Defendants Nos. 1 and 2 in February 1980 as alleged by the Defendants. On the other hand, these were in fact executed in 1982.

Thereafter the Plaintiff alleges the sale of trees in their favour in May 1980. The case of the Plaintiff is that after the agreements of 1977, there were consolidation proceedings in the village with the result that the khasra numbers of the land were changed. As such it became difficult for them to get the felling and marking orders of the trees. Due to the change in the khasra numbers they entered into fresh agreements with the same old zimidars/vendors in May 1980. They have produced these original agreements. These agreements are Ex. P-59 to P-70. The execution of all these agreements is admitted by the concerned Defendants.

to 99. xx xx xx 100. In view of the above discussion it is proved that the agreements for sale of trees of jungle Kamal Pandal were executed by zimidars/owners in favour of the Plaintiff in May 1980 and in pursuance to these agreements efforts were made to take the demarcation etc. It is also proved that the Plaintiff paid money to the various zimidars.

to 123. XX xx XX 124. The learned Counsel lastly contended that there was no completed sale of trees in favour of the Plaintiff and the Plaintiff is not the owner of the trees. He relied upon State of Himachal Pradesh and Another Vs. Motilal Partap Singh and Co. and Another, in support of his contention. I have gone through this judgment and I find that this judgment is not applicable to the facts of the present case. In the present case the Plaintiff agreed to purchase the trees in 1977-78 and agreements for sale of trees were executed. Subsequently in pursuance to these agreements enumeration lists etc. of the trees (Ex.P-46 to Ex. P-57) were prepared in June 1978. The trees were, therefore, ascertained. The price of the trees was also paid to the zimidars at the rate of Rs. 500/- per tree in July 1982 vide receipts (Ex. P-99 to P-124). The affidavits (Ex. P-125 to Ex. P-132) were also given in September 1982 by the zimidars stating that they had handed over the possession of the trees to the Plaintiff after receiving the full price from the Plaintiff. Thus the trees have been demarcated for sale in 1978 and the price for the same was also paid in 1982.

Export permits Ex. D-l and D-2 were issued in favour of the zimidars/owners in May 1982 and July 1982 so that they could remove the trees in accordance with the provisions of the Himachal Pradesh Forest Produce Transit (Land Route) Rules, 1978. In State of Himachal Pradesh v. Moti Lal Partap Singh (supra) the contract for sale was for unascertained goods and the goods were not in a deliverable state. The trees had not been marked as fit for cutting and felling and the permission for cutting and felling of trees after getting marking orders was still to be obtained. Thus this contention of the learned Counsel for the Defendants cannot be accepted.

No other point was urged.

As a result of the above discussion, issue No. 7 is decided in Plaintiff''s favour and issue No. 10 is decided against Defendant No. 2.

Issue No. 8:

In the present case it is an admitted position that some of the sold trees were standing and the remaining had been severed by cutting at the time of the filing of the suit. Both the parties were initially restrained from cutting or removing the trees or removing the timber. Subsequently, this order was modified and the possession of timber and trees was to be taken by the Himachal Pradesh Forest Corporation. The Forest Corporation could also dispose of the timber and deposit the sale proceeds with the Registrar of this Court. As none of the parties can remove the trees from the disputed land in view of the Himachal Pradesh Act No. 5 of 1982, therefore, the learned Counsel for the Plaintiff does not pray for the relief of injunction. He contends that the sale price of the trees should be ordered to be paid to the Plaintiff because the Plaintiff is the owner of the trees. The question as to whether the Plaintiff should be allowed to receive the price of the trees from the Forest Corporation can be dealt with in the relief clause. For the present, under this issue, it is held that the relief of injunction cannot be allowed to the Plaintiffs in the circumstances of the case and in view of the subsequent events and the legislation. This issue is decided against the Plaintiffs.

Issue No. 9:

xx xx xx The total amount thus to which the Plaintiff is entitled from the zimidars in case his main claim fails, will thus come to Rs. 1,83,080/-. This issue is decided accordingly.

Issue No. 12:

In view of my findings on the various issues, the Plaintiffs'' suit for declaration to the effect that the Plaintiff is the owner of the trees marked by the forest authorities standing in the land comprised in khasra Nos. 15, 18, 24, 13, 14, 27, 25, 16, 20, 22, 33, 34, 35, 36, 45, 30, 31, 32 and 26 situate in Mauza Jungle Kamal Pandal, Pargana Rampur, Tehsil Ram Shahar, District Solan and also the logs (converted out of the trees) lying stacked near Kayardoo on road-side between Diggal and Ghamrola khad, Tehsil Nalagarh along with the pulp wood etc. is decreed and the Plaintiff is entitled to realise the sale proceeds of all these trees etc. from the Himachal Pradesh Forest Corporation to whom the possession of the above mentioned trees/timber was given.

xx xx xx