H. N. Seth, J. - (1.) THE first appeal by defendant State of U.P. is directed against the judgement of the Additional Civil Judge, Nainital dated 30-4-1963 decreeing the suit filed by Sri Mumtaz Hussain Contractor for a sum of Rs. 31,338/-.
(2.) THE plaintiff Mumtaz Hussain filed the suit giving rise to the present appeal in the court of the Civil Judge, Nainital alleging that he had purchased the entire Shisham trees in the area between rivers Dhimri and Baur which are sold to him under an auction sale conducted by the Agricultural Officer, Co- operative Farm, Rudrapur under the Colonization Scheme on 25-5-1952 for a sum of Rs. 7,500/-. In due course he deposited the entire sale consideration and started cutting and felling the Shisham trees and was expecting to complete the work before 30-11-1952. Official the Forest Department, however, illegally and without authority started interfering with the plaintiff's work and finally stopped him from exporting timber and illegally seized all the timber cut by him. He, thereupon made representation to the Colonization Department. But to no effect. Even his prayer for extension of time to complete the work was unreasonably refused by the Colonization Department. According to the plaintiff he had collected 10,000 cubic feet of Shisham wood and thirty chattas of feel wood which had been illegally detained by the Forest and Colonization Department of the State. As a consequence thereof, the plaintiff suffered a loss of Rs. 40,000/-. He, therefore, served a notice under Section 80 of the Code of Civil Procedure which did not, yield any result. He had no option but to file the present suit claiming a decree for Rs. 40,000/-. The defendant contested the suit and claimed that only 31 Shisham trees near village Sardarnagar, 10 Shisham trees near village Sakania, 5 Shisham trees near village Ahmednagar and 125 Shisham trees in the area from Baur Bridge up to Behra-Wazir (Total 171 trees) had been sold to the plaintiff on 25th of May, 1952. The plaintiff did not have any right to fell and carry away all the Shisham trees which were many more in number in the aforesaid area and he was also to observe the Rules and Regulations regarding the export of forest wood. The plaintiff started cutting and felling Shisham trees indiscriminately and stealthily in the area not covered by his contract. He was required by the Forest Department to stop doing so. The stacks of wood belonging to the plaintiff was taken possession of either by the Forest Department or by the Colonization Department and that the material which was earlier seized for want of proper Rawannas and property mark was subsequently released to the plaintiff, who had removed the same. In case any part of timber had been left behind, it was the responsibility of the plaintiff himself and the defendant is not liable on that account. The defendant further claimed that the suit was barred by time and the notice under Section 80 of the Civil P.C. was improper and illegal. They further claimed that as the parties did not enter into a contract in the manner provided in Art.299 of the Constitution no valid contract with regard to sale of 171 Shisham trees came into existence. Accordingly the plaintiff is not entitled to claim any damages in respect thereof. After going through the evidence produced in the case, the trial court came to the conclusion that there were only 171 Shisham trees standing in the area situate between river Dhimri and Baur and that all those Shisham trees had been sold to the plaintiff on 25-5-52. It held that the Forest and the Colonization Departments obstructed the plaintiff in working out his contract and the Colonization Department was not justified in refusing to extend the period as prayed for by the plaintiff. Refusal by the Colonization Department to extend the period appeared to be mala fide. It also found that the plaintiff had felled all the 171 trees of Shisham which yielded timber measuring 11,283 cubic feet and 30 stacks of fuel wood. From out of this wood the plaintiff succeeded in exporting only 1837 cubic feet of timber. 9446 cubic feet of timber and 30 stacks of fuel wood remained at the spot which the plaintiff was not allowed to remove. The trial court repelled the claim that the contract in question was hit by Art.299 of the Constitution and held that in any case the plaintiff was, in view of the provisions of S.70 of the Indian Contract Act, entitled to recover compensation from the defendant. In the result, it held that plaintiff was entitled to receive compensation for the timber at the average rate of Rs. 3/- per cubic feet and that for the firewood at the rate of Rs. 100/- per stack of fuel wood (total Rs. 31,338/-).
(3.) BEING aggrieved the State of U.P. has come up in appeal before this court. On 12-5-1952, Sri J.P. Naithani Agricultural Officer, Co-operative Farm, Rudrapur issued an auction notice informing all intending buyers that 171 Shisham trees standing near villages Sardarnagar, Sakhania, Ahmadnagar, Baur Bridge up to Bhora Vajer (Ex. 15) were to be sold by public auction on 25-5- 1952 at 10 A.M. In pursuance of the aforesaid auction notice an auction took place at Rudrapur on 25-5- 1952 in which the plaintiff made the highest bid of Rs. 7,500/-.;