A.B. Pal, J.
1. This Letters Patent Appeal has put under challenge the judgment dated 18-12-2000 passed by a Single Judge of this Court in F.A. No. 104 of 1994. By the said judgment impugned, the appeal by the State of Tripura and Ors., the appellants herein, has been dismissed and the judgment and decree passed by the learned Addl. District Judge, Belonia, South Tripura in M.S. No. 02 of 1985 has been affirmed.
2. The material facts giving rise to the present proceeding may be noticed thus:
The plaintiff-respondent Haradhan Chowdhury instituted the Money Suit No. 02 of 1985 against the State of Tripura and other officials of the Forest Department seeking a decree of damage for an amount of Rs. 25,000/- on the ground of malicious prosecution launched against him by the appellants herein. He claims to be a reputed timber merchant of the area known as Sonaichheri under Belonia Sub-Division. In the month of November, 1980, he applied for permission to extract from his jote land 9 karai trees and one gamai tree. He also applied for similar permission to fell 40 karai trees and 2 gamai trees purchased by him from the jote lands of Laxman Chandra Debnath, Jatindra Das, Subi Kumar Tripura, Atul Chandra Pal, Khetra Mohan Pal, Danu Tripura and Basi Das of Uttar Sonaichheri. The third appellant herein in response to the prayer of the said respondent directed him to produce parcha and naksa as per his prayer for extraction of trees from the jote lands which was accordingly done. Thereafter, the trees were given hammer marks by the Forest Officials. The plaintiff-respondent in anticipation of the approval started to fell down the said trees in the later part of December, 1980 which continued upto January, 1981. The plaintiff-respondent was taken by surprise by his sudden arrest on 9-2-81 by the Forest Officials and institution of two cases against him, one under Section 379 of the Indian Penal Code (for short, 'IPC') and the other under Section 33 of the Indian Forest Act. Though he was released on bail on the following day, he had to go through the perils of wrongful detention and harassment of a long drawn proceeding causing mental and physical anguish. As on the same event, two cases were instituted, the learned Sub-Divisional Judicial Magistrate (SDJM), Belonia stayed the proceeding in C.R. Case No. 12 of 1981 under Section 33 of the Indian Forest Act and proceeded with G.R. Case No. 59 of 1981 under Section 379, IPC. During the course of trial, the Forest Officials could produce no tangible and credible document to prove the charge under Section 379, IPC and in the result, the plaintiff-respondent was discharged. Same was the fate of C.R. Case No. 12 of 1981 which also came to be closed discharging the plaintiff-respondent. But in the mean time, the 52 valuable trees worth of Rs. 12,500/- was sold in auction by the said Forest Officials for a meagre amount of Rs. 2010 though the said trees were seized from the jote lands of the plaintiff-respondent and other persons noted above. After the disposal of the criminal cases where the Forest department failed to produce any prima facie evidence that the trees felled by the said plaintiff-respondent were on the khas lands covered by reserved or protected forest, the instant suit for damages was instituted.
3. The official respondents of the Forest Department contested the suit contending, inter alia, that the said respondent applied for 25 numbers of karai and 15 numbers of gamai trees to be extracted from the khas land of North Sonaichheri and his prayer dated 20-11-80 was rejected on 25-11-80. The said respondent also made another prayer for extracting 30 numbers of karai trees and 10 numbers of gamai trees on 20-11 -80 which also met the same fate on the same date. The Ratanpur Beat Officer had arranged hammer marking of 54 trees standing on the khas land and thereafter those were put to auction on 31-12-80. One Kishore Mohan Baidya and one Haran Chandra Das offered the highest rate which was accepted. But thereafter, the plaintiff-respondent started felling those trees without permission from the Forest Officials which had given rise to the two proceedings under Section 379, IPC and under Section 33 of the Indian Forest Act. The said action was taken bona fide by the Forest Officials in discharge of their officials duties and, therefore, irrespective of the outcome of the said proceedings for reasons whatsoever, the Forest Officials could not be fastened with any liability on ground of malicious prosecution.
4. We have heard Mr. D. Chakraborty, learned Counsel for the appellants and Mr. B. Das, learned Sr. counsel assisted by Ms. S. Das, learned Counsel for the respondent.
5. The learned trial Court decreed the suit for an amount of Rs. 25,000/- after deciding issue Nos. 4 and 5 of the 11 issues which were framed by it. The said two issues were framed to determine whether the plaintiff-respondent was arrested and detained for malicious prosecution. Extensively dealing with these two issues and discussing the evidence, oral and documentary, on record, learned trial Court observed that there had been absolutely no reason for instituting two cases for the same occurrence The witnesses examined by the prosecution who are the owners of the jote lands from whom the plaintiff-respondent claimed to have purchased the trees, deposed before the learned trial Court that they had sold the said trees to the plaintiff-respondent. Ext. 3 is a tree marking note produced by the plaintiff-respondent which shows marking of 52 number of trees from SI. No. 044 to 070 : 27 and from 019 to 043 : 25. The said note was dated on 27-11-80. Ext. 4 is the order of the Divisional Forest Officer (DFO), Bagafa issued on 10-12-80 with reference to the prayer of plaintiff-respondent for extraction of trees from 'jote land'. It would appear therefrom that the plaintiff-respondent was directed to produce parcha and naksa to the said Forest Officer. Ext. 5 series are the seizure lists which show that in connection with the Belonia PS Case No. 9 (2)/81 under Section 379, IPC, the investigating Police Officer seized karai and gamai trees from the lands of Ratan Chandra Debnath, Jatindra Das, Danu Chandra Tripura, Subi Kumar Tripura, Basi Chandra Das, Khetra Mohan Pal, Atul Chandra Pal and Haradhan Chowdhury (plaintiff-respondent). Ext. 5 series are the parchas and khatians relating to the lands wherefrom those trees were seized by the said investigating Police Officer. All these documents together with the oral evidence of the owner of the lands convinced the learned trial Court that the plaintiff-respondent did never make any prayer for extracting trees from any khas land and thus, the entire story of the defendants-appellants herein that the plaintiff-respondent was guilty of felling of trees from khas land remained unsubstantiated. This position strengthened the claim of the plaintiff-respondent that he was unnecessarily and maliciously harassed and humiliated by the two false proceedings and by depriving him from the benefits of 52 number of trees which were seized by the Police Officer from the jote lands of the plaintiff-respondent and other jotedars. After arriving at such a finding, the learned trial Court decreed the suit as noticed above.
6. In the first appeal which was instituted by the State of Tripura and other Forest Officials, the same arguments were placed that the Forest Officials were not responsible for any malicious prosecution as they had acted in discharge of their official duties. Making effort to derive support from the provision of Section 69 of the Indian Forest Act, an argument was advanced that when a question arises as to whether any Forest produce is the property of the Government, such produce shall be presumed to be the property of the Government until the contrary is proved. Learned Single Judge of this Court, however, found no reason to press into service the said provision for the purpose of drawing any presumption in view of the definite materials on record to show that all the trees were seized from the jote lands of the plaintiff-respondent and other owners, not from any reserved or protected forest or any other khas land of the State Government. The learned Single Judge noticed that hammer marking of the trees was done on 27-11-80 pursuant to the order of the Divisional Forest Officer on 25-11-80 relating to 52 number of trees and the First Information Report (FIR) against the plaintiff-respondent was lodged on 9-2-81. According to the learned Single Judge, this admitted position nullifies the plea of good faith taken by the official respondents. After recording the observation that the Forest department failed to produce any scrap of paper showing that the lands where the trees were felled situated in any reserved or protected forest, the learned Single Judge refused to interfere with the judgment and decree passed by the learned trial Court and accordingly the said first appeal came to be dismissed.
7. We have independently gone into the materials and evidence on record in order-to examine whether the concurrent findings of the two Courts suffer from any gross illegality o irregularity calling for interference by us. The crux of the controversy is whether the trees seized by the investigating Police Officer in connection with the two criminal cases instituted by the Forest Officials against the plaintiff-respondent were standing on the Forest land (reserve or protected forest) or the jote land. As the prosecution was instituted by the Forest Department, the burden of proving remains with them that the said lands were protected or reserved forest. Learned SDJM in both the cases under Section 379, IPC and under Section 33 of the Indian Forest Act respectively held that the prosecution miserably failed to prove the same. We have noticed from Ext.4 that the plaintiff-respondent applied for extracting 52 number of trees from the jote lands for which the Divisional Forest Officer directed him to produce parcha and khatians. It would further appear that 52 number of trees wee hammer marked by the Forest Officials which is available from Ext. 3. The seizure list, prima facie, indicates that the seized trees were found on the lands of the plaintiff-respondent and others named by him from whom he purchased the trees. Ext. 5 series nowhere indicate that any of the trees seized by the investigating Police Officer was found on khas land or on the protected or reserved forest. The order of the SDJM discharging the plaintiff-respondent from the charge framed under Section 379 IPC and under Section 33 of the Indian Forest Act for want of any scrap of paper in support of the claim of the Forest Department that those trees were felled from khas land was not called in question in any higher forum. What would appear from the above circumstances is that said 52 number of trees seized by the Police Officer (by Ext.5 series) were not standing on any khas land and the number of trees as well as the names of the persons from whose land the said trees were seized go to suggest that those were the trees which were sought to be extracted by the plaintiff-respondent from his land and the lands of other owners. What has emerged from the above is that the plaintiff-respondent applied to the Forest authority for extracting 52 number of trees from his jote land and the jote lands of others and following his prayer, the Divisional Forest Officer directed him to produce necessary documents which were actually done. Thereafter, all the trees were hammer marked by the Forest Officials giving rise to the presumption that after production of the documents by the plaintiff-respondent, the Divisional Forest Officer being satisfied issued necessary instruction for hammer marking of those trees. Therefore, subsequent action of the Forest officials suddenly arresting the plaintiff-respondent from his house and instituting against him two criminal cases on the allegation that he had felled those trees from the khas land or protected or reserved forest cannot but be mala fide action on their part leading to a malicious prosecution.
8. For what has been discussed above, we find no reason to interfere with the concurrent findings of the learned trial Court and of the learned Single Judge of this Court in the first appeal and, therefore, we dismiss this Letters Patent Appeal leaving the parties to bear their own cost.