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PETITIONER: SALEHBHAI MULLA MOHAMADALI (DEAD)BY LRS.

       Vs.

RESPONDENT: STATE OF GUJARAT AN

DATE OF JUDGMENT25/10/1991

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) RAY, B.C. (J)

CITATION:  1993 AIR  335            1991 SCR  Supl. (1) 564  1992 SCC  (1) 742        JT 1991 (4)   265  1991 SCALE  (2)931

ACT:        Bombay  Merged Territories and Areas  (Jagirs  Aboli- tion)Act,  1953--Section  8--Chhota Udepur  State--Land  de- clared as reserved forest Jagirdar’s right in trees standing in such area.

HEADNOTE: This appeal by the plaintiffs is against an order of  rever- sal  dtd.7/10th  February, 1975 passed by the  Gujarat  High Court. Plaintiff No.1 first appellant is the contractor  and Plaintiffs Nos. 2 to 4, the other appellants. are the jagir- dars  of  the farmer State of chhota Udepur.  The  Jagirdars sold  some  teak trees to plaintiff No.1,  contractor.  With effect  from  1.8.1954, the Bombay  Merged  Territories  and Areas  (Jagirs Abolition) Act, 1953 was made  applicable  to village Nalej,and no compensation was awarded to the  Jagir- dars  in lieu of the trees, as they had sold them to  appel- lant  No.1  (since dead) and now represented  by  his  legal representatives.  The contractor made an application to  the Collector  of Baroda under Sourashtra Felling of  Trees  Act for  permission  to  cut the trees in  question,  which  was forwarded  to Mamlatdar of Chhota Udepur    who granted  the same on 25.9.1961 as a consequence whereof the    contractor started cutting the trees. The Prant Officer, Chhota  Udepur however,  prevented  the contractor from cutting  the  trees whereupon  the contractor represented the matter before  the Divisional  Forest Officer and the State Government but  was told  that the Jagirdars had no right to the trees  standing in  the  reserved  forest area and in the  waste  land.  The Government sold the trees already cut for Rs. 15786 and also sold  the other trees to some other persons.  The  Jagirdars and the contractor filed a suit against the State of Gujarat and the Divisional Forest Officer. Chhota Udepur,  District, Baroda  for  rendition of accounts, for  declaratio  of  the plaintiffs’  title  to the trees, for a declaration  of  the right  of the contractor to cut the trees and to remove  the same,  and  for direction to the       State  to  issue  the necessary  authorisation and transit passes for cutting  and removing the trees in question in favour of the  contractor. Decree  for the balance of the amount of Rs. 14518.18  after adjusting Rs. 1267.82 already received was also sought.  The

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trial court partly decreed the suit holding that the  jagir- dars were the full owners of the trees and as such  the                                     564 565 contractor had also become the full owner thereof. The State was  also  ordered to pay Rs.  14518.18  with  proportionate costs and interest at 4 per centum per annum on this  amount from the date of decree till realisation.     The State of Gujarat appealed against that order to  the High Court of Gujarat contending (i) that under Forest Rules of  Chhota Udepur State, Chotta Udepur State  had  exercised rights  over three kinds of forest-reserved,  protected  and open,  the  State  of Gujarat was thus  competent  to  issue notification  under sec. 4 of the Indian Forest  Act,  1947. (ii)  under the rules, Mahuda and teak trees  were  reserved trees  and they are prohibited from being cut;  (iii)  under the Jagir Abolition Act, Section 5, the solid vested in  the jagirdar  and not the trees; hence Jagirdars could not  have sold  the trees and (iv) the agreement executed between  the contractor and the Jagirdars was not enforceable at law; the contractor  could  not claim any  right/interest  under  the same.     The  High  Court negatived all the contentions  and  the rights  accruable to the contractor under the agreement  and allowed the appeal of the State and dismissed the suit filed by the appellants. Hence this appeal by the appellants. Dismissing the appeal, this Court     HELD: The trees in question stood on the area which  was declared as reserved forest under the forest rules framed by the Chhota Udepur State. [512 B]     Once it is established that during the time of existence of erstwhile State of Chhota Udepur an area admeasuring  290 acres  and 14 gunthas in village Nalej was declared  as  re- serve forest and jagirdars had no right at all in the  trees standing  in  such area of reserved  forest,  the  Jagirdars cannot  be  considered to have acquired a greater  right  on 28.7.48  when the Forest Rules of Chhota Udepur  State  were repealed by the Application of Laws Order. [514 C-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.1865 of 1975.      From  the Judgment and Decree dated 7/10.2.1975 of  the Gujarat High Court in First Appeal No. 291 of 1967. 566     A.S.  Qureshi, N.K. Sahoo, P.H. Parekh, and  Ms.  Chetna Anand for he Appellant.     Dushyant Dave, Mrs. Nandini Gore for Mrs. M.  Karanjawa- la,  R. Karanjawala (N.P), Anip Sachthey and Rajesh for  the Respondents. The Judgment of the Court was delivered by     KASLIWAL,  J  This appeal by special leave  is  directed against  the  judgment of the High Court  of  Gujarat  dated 7/10th February, 1975.  The plaintiffs Nos. 2 to 4 were Dumaldars of village  Nalej of erstwhile State of Chhota Udepur (hereinafter referred to as  the jagirdars).    The jagirdars vide exhibit  58  dated 9.1.1954 sold all the teak trees in favour of plaintiff no.1 (hereinafter  referred  to as the contractor) for a  sum  of Rs.6,001/- and received a sum of Rs. 101/- as earnest money. By  another agreement exhibit 59 dated 29th July, 1954,  the jagirdars  sold all the Mahuda trees in favour of  the  con-

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tractor for a sum of Rs. 5001/and received sum of Rs.  600/- as earnest money. On 1st August, 1954 Bombay Merged Territo- ries  and  Areas (Jagirs Abolition) Act,  1953  (hereinafter referred  to  as the ’Jagir Abolition Act’) was  applied  to village  Nalej.  The compensation in lieu of trees  was  not awarded  to the Jagirdars as the same had already been  sold by the Jagirdars in favour of the contractor. The contractor made  an application to the Collector of Baroda  under  sou- rashtra Felling of Trees Act for permission to cut the trees in question. The Collector forwarded the application to  the Mamlatdar  of Chhota Udepur who granted the permission  vide order dated 25th September, 1961. The contractor then start- ed  cutting the trees in question. However, the Prant  Offi- cer, Chhota Udepur prevented the contractor from cutting the trees.   The  contractor then made  representations  to  the Divisional  Forest Officer and the Government. In reply  the contractor  was told that the Jagirdar had no right  to  the trees standing in the reserved forest area and in the  waste land.  Thereupon the contractor’s authorisation to  cut  the trees  and  his transit passes to transport the  goods  were withheld. The Government invited tenders for the sale of the trees already cut and sold the same on 30th July, 1962 for a sum  of Rs.15786/-. The Government also sold other trees  to other  persons  and  realised from them  some  amounts.  The Jagirdars  and the contractor filed a suit against the  Gov- ernment of Gujarat and the Divisional Forest Officer, Chhota Udepur,  District  Baroda for rendition of  account,  for  a declaration of the plaintiffs title of the trees in question and for a declaration of the right of the contractor to  cut the trees in question and to remove the cut materials. 567     A  declaration was also sought that the impugned  action of the Government was illegal, ultra rites and unlawful  and to give a direction to the Government to issue the necessary authorisation  and transit passes for cutting  and  removing the  trees in question in favour of the contractor.  It  was also prayed that out of the sale proceeds of the cut materi- als  on  30th  July,  1962  for  Rs.15786/-  an  amount   of Rs.1267.82  having paid by the Divisional Forest Officer,  a decree for the balance of Rs.14518.18 may be passed  against the Government.     The  Trial  Court  by judgment dated  31st  March,  1967 partly decreed the suit. It was declared that the  jagirdars were the full owners of the trees and as such the contractor had  also  become the full owner of the trees. It  was  also declared that the contractor was entitled to cut and  remove these trees and the State of Gujarat, its officers, servants and agents were ordered to issue necessary permit,  authori- sation and transit passes to plaintiff no.1 (contractor) for removal  of  the trees. The state was also  ordered  to  pay Rs.14518.18  together with proportionate costs and  interest at 4% per annum on this amount from the date of decree  till realisation.  The State of Gujarat, its  officers,  servants and agents were also restrained by perpetual injunction  not to interfere with the rights of ownership of the  plaintiffs except  in  due course of law. Prayer for rendition  of  ac- counts was dismissed. The  State of Gujarat, aggrieved by the Judgment and  decree of  the Trial Court filed an appeal in the High  Court.  The Division  Bench  of the High Court allowed the  appeal,  set aside the decree passed by the Trial Court and dismissed the suit. The cross objections filed by the plaintiffs were also dismissed.     It would be necessary to state some events which have  a material bearing with the case. The Jagir Abolition Act came

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into force on 1.8.54 as already mentioned above. The Govern- ment  issued a notification dated 15th February, 1955  under Sec.  4 of the Indian Forest Act, 1927 and constituted  cer- tain  survey  numbers of the village Nalej  into  a  reserve forest.  Thereafter  another notification was  issued  under section  20  of the Indian Forest  Act  constituting  survey No.102 alone into a reserve forest. It may be noted that  in the  present case we are concerned with the Teak and  Mahuda trees  standing on survey No.102 of village  Nalej.  Learned counsel  appearing  on behalf of the State  of  Gujarat  had raised the following contentions before the High Court:               1.  Under  the Forest Rules of  Chhota  Udepur               State,  Chhota  Udepur  State  had   exercised               rights over three kinds of forest-               568               reserved,  protected  and open.  These  rights               devolved upon the State of Gujarat. Therefore,               the State of Gujarat can exercise those rights               and issue under section 4 of the Indian Forest               Act, 1927 the impugned notification.               2.  Under  the Forest Rules of  Chhota  Udepur               State  21  kinds of trees including  teak  and               mahuda trees were reserved trees and they were               prohibited from being cut.  The interest which               Chhota  Udepur  State had in those  trees  de-               volved  upon the State of Gujarat and,  there-               fore,  under  Section 4 of the  Indian  Forest               Act, 1927 it was within the power and authori-               ty  of the State of Gujarat to issue  the  im-               pugned notification.               3. Under section 5 of the Jagir Abolition  Act               the  soil vested in the Jagirdars and not  the               trees. Therefore, the jagirdars could not have               sold  away  to  the contractor  the  trees  in               question.  Since  the trees  in  question  had               vested  in the State it was within  the  power               and  authority of the State to issue  the  im-               pugned notification.               4. The agreement executed by the Jagirdars  in               favour  of the contractor were not valid  and,               therefore,  not enforceable at law.  They  did               not  confer  any title  upon  the  contractor.               Alternatively, if the contractor had  acquired               any  rights  under the  said  agreements,  his               remedy lay in claiming compensation in respect               of  his rights which were hit by the  impugned               notification.     The High Court dealt with the above four contentions  in seriatim.  While dealing with the first contention the  High Court  considered  that the decision of the  appeal  largely turned  upon  the forest Rules of Chhota Udepur  State.  The High Court after considering the matter in detail held  that survey No.102 of village Nalej was a reserved forest  during the days of Chhota Udepur State. The High Court referred  to the forest Rules of Chhota Udepur State in order to find out the position in relation to survey no.102 of Nalej. Schedule ’A’ of the Rules contained the detailed discription of areas which  was  declared  as reserved forest.  At  serial  No.11 Village  Nalej  has been mentioned amongst  other  villages. Columns  7  and 8 showed that an area of 250  acres  and  14 gunthas  of village Nalej was declared as  reserved  forest. No  survey number of that area had been  mentioned  therein. According to the High Court this Entry in Schedule ’A’ lends support  to  the  fact that there was  one  reserved  forest admeasur-

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569 ing  290  acres and 14 gunthas in village  Nalej  of  Chhota Udepur  State. Survey No.102 of Village Nalej as a  reserved forest  was  not mentioned but this was on  account  of  the reason  that  Chhota Udepur State made its forest  Rules  in 1934  which were published in 1938 when the reserved  forest area  of  village  Nalejj did not bear  any  survey  number. However,  it was mentioned in the Rules that there  was  one reserved forest in village Nalej to the extent of 290  acres and  1.4  Gunthas.  The plaintiffs  themselves  admitted  in agreement  exhibit  59  that survey No.102  was  a  reserved forest.  It  was  then held that in respect  of  a  reserved forest  Jagirdars  did not have the right to  cultivate  any land nor to cut any trees. The only right he had was a right to graze cattle and to remove some forest produce in accord- ance  with Regulations made by Chhota Udepur State  in  that behalf.  The  Jagirdar did not have any right to  any  trees situated  in  reserved  forest. With the  merger  of  Chhota Udepur  State  with the then State of  Bombay  the  property belonging  to  Chhota Udepur State in  the  reserved  forest devolved upon the State of Bombay and subsequently upon  the State  of  Gujarat. The High Court thus accepted  the  first contention raised on behalf of the State of Gujarat.      The  High Court then considered the  second  contention and in this regard observed that Rule 4 of the Forest  Rules of Chhota Udepur State contained the list of reserved trees. 21  kinds of trees had been listed as reserved  trees  which included the teak and Mahuda trees which formed the  subject matter of the two transactions between the Jagirdars and the contractor.  The  High  Court then held that  the  right  to forest  produce which Chhota Udepur State had in respect  of such  trees in the "open forest" devolved upon the State  of Bombay, on merger of Chhota Udepur State with it and  there- after  upon the State of Gujarat. It was thus held that  the second  contention raised on behalf of the State  was  right and the same was upheld.      The High Court found no substance in the third  conten- tion and rejected the same. However, the High Court observed that  in  the light of the finding recorded  on  the  second contention it was quite clear that the trees which vested in the Jagirdars vested in them subject to such right or inter- est  in them which the State had under the Forest  Rules  of Chhota Udepur State.       In the 4th and last contention challenging the validi- ty of the two agreements exhibits 58 and 59, the High  Court observed that there are two aspects of this contention.  The first  aspect  is that agreements exhibits 58  and  59  were compulsorily  registerable  and  that since  they  were  not registered, they did not convey any title to the  contractor in respect of the 570 subject  matter  of the agreements. The High Court  in  this regard  held  that  what was transferred  was  the  standing timber  and  not any interest in soil.  Therefore,  the  two agreements  were  not compulsorily  registerable.  The  High Court  then considered the second aspect of the 4th  conten- tion.  It  was argued on behalf of the State  that  all  the survey numbers to which agreements exhibits 58 and 59 relat- ed were waste lands and as such under section 8 of the Jagir Abolition  Act they vested in the State. The High  Court  in this  regard  held that forest lands are  not  waste  lands. Therefore,  if they have not vested by virtue of the  provi- sions  of section 8 of the Jagir Abolition Act in the  State of Gujarat. The High Court in view of the findings  recorded above  on the first and second contentions in favour of  the

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state,  allowed the appeal and dismissed the suit  filed  by the plaintiffs.     Learned  counsel  for the plaintiffs  appellants  raised altogether new line of argument before us. It was  submitted that  the appellants did not challenge the existence or  the legality of the Chhota Udepur Forest Rules but their submis- sion was that the said Rules did not apply to the facts  and circumstances  of this case. It has been contended that  the aforesaid  forest  Rules, together with all  other  laws  of Chhota  Udepur  State, stood repealed on  28.7.48  when  the Indian  States  (Application of Laws) Order 1948  came  into force. On and from 28.7.1948 the Indian Forest Act, and  the Rules made thereunder became applicable. The two  agreements were  made on 9.1.1954 and 29.7.1954 long after  the  Chhota Udepur Forest Rules were repealed and before the issuance of the  notification by the Government dated 12.5.55  declaring its  intention to make a part of survey No. 102 of Nalej  as reserved forest under Sec.4 of the Indian Forest Act. It has thus  been submitted that so far as the  impugned  contracts are concerned the same are not adversely affected either  by the Forest Rules of Chhota Udepur State or by the  Notifica- tion issued under section 4 of the Indian Forest Act. It has been contented that the High Court was wrong in holding that the  impugued contracts dated 9.1.1954 and  29.7.1954  could not pass any right on the contractor as the same were hit by the provisions of Chhota Udepur State Forest Rules, when  in fact those forests Rules had already been repealed.     It was also argued that the High Court’s decision  about reserved  forests is based on surmises and so called  admis- sion  in  the  contract exhibit 59. The words  used  in  the plaint are "alleged jungle bhag" which does not amount to an admission  that it is a reserved forest.  In  the  agreement exhibit  59 the words used are "So called  reserved  forest" and  subsequently in the same agreement the words  used  are "reserved Padtar (vacant)". It has thus been submitted  that the earlier use of words ’so called’ is not repeated  subse- quently and as such it means that the plaintiffs had denied 571 the  same to be reserved forest. As regards Entry  No.11  in the Schedule to the Forest Rules of Chhota Udepur State, the High  Court  itself has observed that no  survey  number  is mentioned. This itself goes to prove that survey No.102  was not intended to be covered by the said Entry No.11. Thus  it was not proved that survey No.102 was a reserved forest.  It was  further  argued  that assuming that  survey  No.102  in village  Nalej was a reserved forest under the Forest  Rules of Chhota Udepur State, it ceased to be so from 28.7.48.  It is an admitted position that the Notification under  Section 4  of the Indian Forest Act was published on 12.5.55 and  in case  survey No.102 of village Nalej was already  continuing as  reserved forest under the Forest Rules of Chhota  Udepur State, then there was no necessity at all of issuing a fresh Notification  under Section 4 of the Indian Forest Act.  The fact  that  such Notification was issued on 12th  May,  1955 clearly  goes to show that survey No.102 did not  constitute reserved forest in between the period 28.7.48 to 12.5.55.     We do not find any force in the above submission made on behalf  of  the appellants. So far as the  legality  of  the Chhota  Udepur  State’s Forest Rules is  concerned,  it  was nowhere challenged by the plaintiffs. In the written submis- sions filed before us on behalf of the appellants the  point made at 1.1 itself reads as under:-               "The appellants do not challenge the existence               or  the legality of the Chhota  Udepur  Forest               Rules  (hereinafter  the  Forest  Rules).  The

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             appellants  merely submit that those Rules  do               not  apply to the facts and  circumstances  of               this case".     Apart  from  the  above stand taken  by  the  appellants themselves, Judgment of the High Court of Gujarat in Special Civil Application No. 404/61 State of Gujarat v. Kumar  Shri Ranjit  Singhji  Bhavani  Singhji, Shn  C.M.  7halair  Jagir Abolition Officer, Baroda and others decided on 22nd  April, 1965  has been placed on record by the Learned  counsel  for the appellants. In the aforesaid judgment Shelat, C.J.,  and Bhagwati,  J. (as he then was) have observed that  in  1934, the State of Chhota Udepur promulgated amended Forest  Rules under  Notification of August 1, 1934. The Notification  was issued  under  the  signature of the  Ruler  himself.  These Rules,  therefore,.  became and constituted the law  of  the State.     The High Court in the impugned order before us has  also placed  reliance on such Rules. The High Court  has  rightly held  that at serial No.11 an area of 290 acres and 14  gun- thas  of village Nalej was declared as reserved  forest.  No survey number on that area could have been mentioned because the  reserved forest area of village Nalej did not bear  any survey  number at that time. However, it cannot disputed  be that there 572 was  one  reserved forest in village Nalej  admeasuring  290 acres  and  14 gunthas and the  plaintiffs  themselves  have admitted  in the plaint that the trees in question  were  in the  alleged jungle bhag. In the agreement exhibit  59  also the  words used are "so called reserved forest". Thus  apart from the above admissions, the entire case has been contest- ed  in the trial court as well as in the High Court  on  the assumption  that the trees in question were standing on  the area of reserved forest declared by the Chhota Udepur State. In  case  the plaintiffs wanted to show that  the  trees  in question  were  not  inside the reserved  forest  area  they should have taken such stand in a clear manner and it .would have been very easy for them to succeed in the suit  without going through all the various legal submissions made by  the parties. Thus we see no reason to take a different view from the  High Court and we affirm the finding of the High  Court in this regard that the trees in question stood on the  area which was declared as reserved forest under the Forest Rules framed by the Chhota Udepur State.     In order to appreciate the other submission made by  the learned  counsel  for the appellants we would refer  to  the Indian States (Application of Laws) order, 1948 (hereinafter referred to as ’Application of Laws order’ 1948).It would be necessary  to reproduce Section 5 which repeals  the  enact- ments in force in Indian States.               Section  5:- Repeal of enactments in force  in               Indian States:- All enactments in force in the               Province  of Bombay and extended to  any  such               State under paragraph 3 shall stand repealed:               Provided that the appeal by this Order of  any               such enactments shall not affect the validity,               invalidity, effect or consequence of any’thing               already done or suffered or any right,  title,               obligation  or  liability  already   acquired,               accrued or incurred, or any remedy or proceed-               ing  in  respect thereof, of  any  release  or               discharge of or from any debt, penalty,  obli-               gation,  liability,  claim or  demand  or  any               indemnity already granted, or the proof of any               past act or thing;

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             Nor  shall  the repeal by this  order  of  any               enactment affect any principle or rule of law,               or established jurisdiction, form or course of               pleading,  practice or procedure, or  existing               usage, custom, privilege, restriction,  exemp-               tion, office or appointment, in so far as  the               same respectively is not in any way inconsist-               ent with any of the enactments extended  under               paragraph  3  of this  order,  notwithstanding               that  the same respectively may have  been  in               any manner affirmed, recognised or derived by,               in or from any enactment hereby repealed;               573               Nor  shall  the repeal by this  order  of  any               enactment revive or restore any  jurisdiction,               office,   custom,  liability,  right,   title,               privilege,   restriction,  exemption,   usage,               practice,  procedure or other matter or  thing               not  now  existing  or  in  force  immediately               before the date on which this order comes into               force.     There  is  no doubt that Chhota Udepur State,  has  been mentioned in Schedule 1 of the Application of Laws order and all enactments in force in Chhota Udepur stood repealed  and the Indian Forest Act, 1927 mentioned in Schedule 11  became applicable,  but the proviso to section 5  clearly  provides that  the repeal by this order shall not affect  any  right, title,  obligation  or liability acquired,  accrued  or  in- curred.  Thus the Jagirdars had already acquired accrued  or incurred  a  liability in respect of the trees  in  question which were part of the reserved forest as declared under the Forest Rules of Chhota Udepur State. There is nothing on the record  to show that the Jagirdars were cutting  trees  from the part of village Nalei which was declared reserved forest during the time of erstwhile Chhota Udepur State.  Jagirdars could  not  have given a better title to the  contractot  in respect of the trees, which the jagirdars themselves did not possess. The repealing of the Forest Rules of Chhota  Udepur State  on 28th July, 1948 did not furnish any additional  or increased  rights to the Jagirdars which they did  not  have before the merger of Chhota Udepur State.     It has been vehemently contended on behalf of the appel- lants that it was a case of full proprietorship right in the Jagir  and  the Jagirdars had full and  complete  rights  of ownership  in  the soil, as well as the trees.  Reliance  is placed  on the definition of proprietary jagir under  Clause XVIII  as conternplated in section 2 of the Jagir  Abolition Act which reads as under:               "Proprietary  Jagir" means a Jagir in  respect               of  which  the Jagirdar under the terms  of  a               grant  or agreement or by custom or  usage  is               entitled  to  any rights or  interest  in  the               soil".      It has been contended that the Jagirdars in the present case  had not only a right over the trees but also  interest in  the  soil and as such they had full right  to  sell  the trees to the contractor. It was submitted that even if there were any restrictions on cutting of trees so long as  forest rules of Chhota Udepur State remained in force that restric- tion was removed on 28.7.48 when such rules were repealed by the  Application  of Laws order. After the forest  rules  of Chhota  Udepur State were repealed, the Jagirdars  got  full right  to alienate the trees as such right was  inherent  in the  right of proprietary Jagir. It was also submitted  that the  Government of Bombay had itself taken  policy  decision

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that all contracts made by the Jagirdars prior to the aboli- tion  of  jagits on 1.8.54 shall be honoured. It  cannot  be considered the intention of the Government to take away such vested rights 574 in  the jagirdar having come into force on 28.7.48, after  a lapse  of seven years by issuing a Notification  on  12.5.55 under  Section 4 of the Indian Forest Act. It has also  been contended  that the Government has recognized that right  of full  ownership  in the trees in favour of  other  jagirdars similarly situated and there was no justification for taking such arbitrary and discriminatory action against the  plain- tiffs alone.     The  above submissions are based on a  total  misconcep- tion.  As already mentioned above, there is no  question  of taking away any rights. It is no doubt correct that it is  a case of proprietary jagir, but it does not confer any  right in  respect of trees standing in a reserved forest. Once  it is  established that during the time of existence  of  erst- while  State of Chhota Udepur an area admcasuring 290  acres and  14  gunthas in village Nalej was declared  as  reserved forest and Jagirdars had no right at all in the trees stand- ing in such area of reserved forest, the Jagirdars cannot be considered to have acquired a greater right on 28.7.48  when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws order.       There  is  another insurmountable difficulty  for  the plaintiffs  in  as much as the trees had not  been  cut  and removed prior to 12.5.55 when admittedly a notification  has been issued under Sec. 4 of the Indian Forest Act also. That being  so no relief can be sought for cutting  and  removing the trees in question after 12.5.55 as the survey No.102 has been constituted  as reserved forest under the provisions of Indian  Forest  Act   The tree   in question  are  teak  and Mahuda trees which were out of 21 kinds of trees declared as reserved  trees which were prohibited from being  cut  under the  extent  of forest rules of Chhota  Udepur  State.  Such trees even if standing in forest were not allowed to be cut. Thus examining the matter from any angle, we are already  of the  opinion  that the plaintiffs are not  entitled  to  any relief as claimed in the suit.     So far as the ground of discrimination is concerned,  it is  well settled that in order to establish the same  it  is necessary  to  make out such case in the pleadings.  In  the present case no such ground was taken in the plaint nor  any facts or material were placed on record during the trial  of the  suit  or before the High Court and the same  cannot  be considered  for the first time before this Court,  specially when  the defendants were not given any opportunity to  meet the same.    In  our view the High Courts was right in dismissing  the suit. In the result we find no force in this appeal and  the same  is  dismissed. In the facts and circumstances  of  the case we direct no order as to costs. Y.L.                                                  Appeal dismissed. 575