Tarlok Singh Chauhan, J. - (1.) The appellant is the plaintiff, who having lost before both the learned Courts below in a suit filed by him for recovery of Rs. 40,000/-, has filed the instant appeal. 1. The parties shall be referred to as the 'plaintiff' and 'defendants'. 2. The plaintiff filed the suit on the allegations that the land comprised in Khasra No.995 measuring 00-13-17 bighas situated in Mohal Manyana/362 Tehsil Sadar, District Mandi, H.P., was though in the name of the plaintiff and proforma defendants, but it was the plaintiff, who was in exclusive possession thereof as per the family partition. Whereas, khasra No. 990 which was situated on the northern side of this Khasra number was in possession of defendant No.1. A Jamun tree existed on the boundary of these Khasra numbers, but the defendants cut the same in October, 2008 and accordingly the matter was reported to the Police Station, Sadar, who took in possession the timber, but nothing worthwhile was done thereafter. The plaintiff even applied for demarcation and two demarcations had in fact been carried out, but the same were not acceptable to the plaintiff and, therefore, he accordingly filed the present suit.
(2.) The defendant No.1 contested the suit by filing written statement by raising preliminary objections about maintainability, cause of action, estoppel etc. On merits, it was denied that Khasra No. 995 was in exclusive possession of the plaintiff or that there was a tree existing on the boundary of Khasra Nos. 990 and 995 as alleged. It was asserted that the tree was exclusively over Khasra No. 990 and since it was an old one and had become dangerous, therefore, the same had to be cut down. The defendants had been using the fruits and wood of the same from the very beginning and as such, they had every right to deal with it as they were the owners. It is further alleged that after the matter had been reported to the police, a demarcation was obtained, in which the tree was found to be in the use and occupation of the defendants and they were permitted to use its timber and the report made to the police was accordingly cancelled.
(3.) From the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled to recover a sum of Rs. 40,000/- from the defendants by way of damages, as prayed? OPP 2. Whether the suit is not maintainable, as alleged? OPD. 3. Whether the plaintiff is estopped by his own act and conduct to file the present suit, as alleged? OPD. 4. Whether the plaintiff has no enforceable cause of action to file the present suit, as alleged? OPD. 5. Relief.;