Bansilal and others vs Birdha and others

Nigam, J.C.

Bansilal and two others filed Civil Suit No. 80 of 1946 against Hindu and three others claiming a decree for Rs. 100/-. The plaintiffs came to the court with the statement that they were owners and in possession of Plot No. 184 situated in village Nareli and that defendant No 4 and defendants 1-3 had wrongfully cut thirty ''babul'' trees growing in the plot, hence the suit.

Defendant No. 4 admitted that he was tenant over the land in suit on behalf of the plaintiff for the last three years and that defendant No. 1 and 2 had cut the trees. Defendant No. 3 also admitted the claim. Defendants 1 and 2, however, contested the claim on the ground that the plaintiffs were not the owners and in possession of the suit land that defendants 1 and 2 were the owners and even if it was accepted that the plaintiffs were the mortgagees, they were entitled to ex-proprietary rights. It was admitted that defendant No. 1 had cut a few ''babul'' trees. The learned IInd Additional Subordinate Judge held that the defendants had not wrongfully cut thirty ''babul'' trees and had not dishonestly sold them to Amir Khan, that defendants 1 and 2 were not entitled to special costs and the plaintiffs were not entitled to any decree.

Against that judgment and decree, an appeal was preferred to the District Judge. This appeal was decided by the learned Additional District Judge by his judgment dated 28-7-1951. The appeal was dismissed. Against that dismissal of the appeal, Bansilal and two others plaintiffs, have come up in second appeal. Respondents 2-4 are absent, and the appeal has been heard ex parte against them. I have heard the learned counsel for the appellants. Baldeo has addressed me himself.

The learned counsel has urged that the learned trial Judge and the learned Additional District Judge were wrong in holding that it was not proved that the defendants had cut the trees. The learned counsel points out that defendants 1 and 2 had admitted in their written statement and in, their reply to the notice Ex. 7/P that they had cut a few of the trees. In Ex. 7/P, however, it was alleged that the statement that twenty ''babul'' trees had been cut were false. Thus, in any case the admission in the written statement did not amount to an admission that thirty ''babul'' trees-bad been cut as alleged.

The learned counsel has also urged, that the inferences drawn from the evidence by the learned Additional District Judge, and his finding on the question of possession are against the weight of evidence. That argument cannot be raised in second appeal. The finding of fact is binding on this Court. It having been held that the plaintiffs failed to prove their possession and having also failed to prove the number of trees that had been cut by defendant No. 4, the plaintiffs were, in my opinion, not entitled to any decree.

No other point has been pressed before me.

I, therefore, see no force in this appeal and dismiss it with costs.