Karnataka High Court

The Senior Asst. Director vs C.D Kiran on 15 June, 2022

Bench: Ravi V Hosmani

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                                                               RSA No. 860 of 2014

                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                               DATED THIS THE 15TH DAY OF JUNE, 2022
                                                 BEFORE
                               THE HON'BLE MR JUSTICE RAVI V HOSMANI
                            REGULAR SECOND APPEAL NO. 860 OF 2014 (INJ)

                      BETWEEN:
                      1.     THE SENIOR ASST. DIRECTOR
                             OF HORTICULTURE, KADUR,
                             DEPT. OF HORTICULTURE
                             KADUR TALUK, KADUR-577 108.

                      2.     THE JOINT DIRECTOR OF HORTICULTURE
                             DEPT. OF HORTICULTURE, ZILLA PANCHAYATH
                             CHIKMAGALUR AT & POST-577 101.          ...APPELLANTS

                      [BY SRI S.K.SHIVASHANKAR, ADVOCATE (PH)]

                      AND:
                      1.     C.D. KIRAN S/O C.C.DIVAKARA
                             AGED: 34 YEARS, R/AT K.R.MATH LAYOUT
                             SAKARAYAPATNA, SAKARAYAPATNA HOBLI
                             KADUR TALUK-577 108.
                      2.     THE DIRECTOR OF HORTICULTURE
                             DEPARTMENT OF HORTICULTURE
                             LALBAGH,BANGALORE-560 001.
Digitally signed by   3.     THE GOVERNMENT OF KARNATAKA
VEENA KUMARI B
Location: High
                             REP. BY ITS CHIEF SECRETARY
Court of Karnataka           VIDHANA SOUDHA, BANGALORE-560 001.
                                                                      ...RESPONDENTS
                      [BY SRI N.OBALESHAIAH, ADVOCATE FOR R1;
                          SRI K.DILIP KUMAR, HCGP FOR R2 & R3 (PH)]

                           THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
                      JUDGMENTAND DECREE DATED 16.12.2013 PASSED IN R.A.NO.6/2009
                      ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., KADUR, PARTLY
                      ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND
                      DECREE DTD 29.11.2008 PASSED IN OS.NO.258/2005 ON THE FILE
                      OF THE ADDL. CIVIL JUDGE (JR.DN) & JMFC., KADUR.
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                                              RSA No. 860 of 2014

      THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

Challenging judgment and decree dated 16.12.2013 in

R.A.No.6/2009 passed by Senior Civil Judge & JMFC., Kadur and

also judgment and decree dated 29.11.2008 passed in

O.S.No.258/2005 by Addl. Civil Judge (Jr.Dn.) & JMFC., Kadur,

this appeal is preferred by appellants.

2. Appellants herein were defendants no.1 and 2 in

original suit and respondents no.1 and 2 in first appeal. While

respondent no.1 herein was plaintiff in suit and appellant in first

appeal. Respondents no.2 and 3 herein were defendants no.3

and 4 in suit and respondents no.3 and 4 in first appeal.

3. For sake of convenience, parties shall hereinafter

referred to as per their ranks in trial Court.

4. O.S.No.258/2005 filed seeking for relief of permanent

injunction against defendants restraining them from

dispossessing plaintiff from land bearing Sy.No.149/P, old

no.784, measuring 4 acres out of total extent of 345 Acres and

05 guntas situated at Sakharayapatna village, Kadur Taluk

(for short 'suit property').

RSA No. 860 of 2014

5. In plaint, it was stated that Sy.No.784 of

Sakharayapatna village, Kadur Taluk, totally measuring 345

acres originally belonged to Government, assigned for cattle

grazing i.e., gomala banjarau land. Since 1981-1982 plaintiff was

in unauthorised cultivation of a portion of suit property to an

extent of 04 acres. It is further averred that government

confirmed unauthorised cultivation and issued grant certificate.

Plaintiff also claimed that he has filed Form no-53 for

confirmation of unauthorised cultivation, which was pending

before Land Grant Committee. It was further stated that plaintiff

had invested her labour and money for improving said land and

making it fit for cultivation and was growing crops in said

property for his livelihood. It was further stated that defendants

i.e., officials of Horticulture department no way concerned with

suit property, attempted to prevent plaintiff from cultivating

land. It was also stated that plaintiff along with others filed

W.P.Nos.33643/2000 to 33748/2000 before this Court for a

direction to Land Grant Committee to consider their applications

in Form no.53. It was stated that said writ petition was disposed

of with a direction to consider applications filed for regularisation

afresh within six months. It was also stated that during 2005 an

RSA No. 860 of 2014

extent of 100 acres out of 345 acres and 05 guntas in old

Sy.No.784 was transferred in favour of Horticulture department.

However, plaintiff and others continued in unauthorised

cultivation of respective portions. As there was attempts by

defendants to interfere with plaintiff's possession and cultivation

of suit property, they were constrained to file suit.

6. Upon service of suit summons defendant no.1 filed

written statement admitting that land bearing survey no.784 of

Sakharayapatna village, measuring 345 acres belonged to

Government i.e., Forest Department. It was stated that 100

acres out of 345 acres 05 guntas, was released in favour of

Horticulture Department vide Government Order No.RD 84 LGH

76 dated 13.07.1977, Tahsildar, Kadur, handed over possession

of same. It was stated that since then defendant no.3 was

absolute owner and in peaceful possession of suit property. It

also denied unauthorised cultivation by plaintiff and others.

Defendants asserted that after grant, defendants had put up

fencing around suit property. Filing of form No.53 for

unauthorised cultivation or confirmation of unauthorised

cultivation in respect of suit land was denied. It was further

stated that one Smt.Rathnamma had filed O.S.No.456/2000

RSA No. 860 of 2014

against defendant restraining them from interfering with her

possession to an extent of 04 acres. After trial, said suit was

decreed. Taking advantage of said decree, it was alleged that

plaintiff was trying to take possession of suit property.

Defendants specifically disputed that plaintiff was in settled

position of suit schedule property and by denying other

averments sought for dismissal of suit.

7. Other defendants adopted written statement filed by

defendant no.1.

8. Based on pleadings, trial court framed following issues:

1. Whether the plaintiff proves, he is in peaceful possession and enjoyment of the suit schedule property?

2. Whether the plaintiff further proves that the suit schedule property belongs to Revenue Department?

3. Whether the plaintiff proves, the defendants are trying to trespass and dispossess the plaintiff forcibly from the suit property?

4. Whether the plaintiff is entitled to relief sought for?

5. What order or decree?

RSA No. 860 of 2014

9. Thereafter in support of her case, plaintiff got examined

himself as PW.1 and also examined another witness as PW.2.

Exhibits no.1 to P.23 were marked. On behalf of defendants,

defendant no.1 got examined as DW.1 and Exhibits D1 to D.6.

were marked. On consideration trial court answered issues no.1

to 4 in negative and issue no.5 by dismissing suit. Aggrieved

there by plaintiff filed R.A.No.6/2009 on several grounds.

10. Based on contentions, first appellate Court raised

following points for consideration:

1. Whether the appellant/plaintiff proved that he has been in settled possession and enjoyment of the suit schedule property?

2. Whether the appellant/plaintiff proves that judgment and decree passed by the trial court in O.S.No.258/2005 dated 29.11.2008 is illegal, erroneous and opposed to the principles of law, facts and probabilities of the case and liable to be set-aside?

3. Whether the additional evidence produced by the appellant/plaintiff in I.A.No.1 u/o XLI rule 27 of CPC could be received in the present appeal?

4. What order?

RSA No. 860 of 2014

11. On consideration of material on record, it answered

point no.1 in affirmative, point no.2 partly in affirmative, point

no.3 in affirmative and point no.4 by allowing appeal and set

aside judgment and decree passed by trial court, decreeing

plaintiffs suit in part restraining defendants no.1 to 3

permanently from interfering with possession and dispossession

of plaintiff from suit schedule property without due process of

law. Against said judgment, defendants no.1 and 2 are in appeal.

12. Sri S. K. Shivashankar, learned counsel for appellants

submitted that impugned judgment and decree passed by trial

Court and first appellate Court is contrary to law, facts and oral

and documentary evidence on record and also based on perverse

and capricious findings. It was specifically submitted that under

Government order dated 13.07.1977 government handed over

an extent of 100 acres to appellants/Horticulture department.

Thereafter area was demarcated and possession was handed

over to appellants, since then appellants were in possession of

said suit property and also put up barbed fencing around suit

property.

13. Learned counsel further submitted that name of

appellants was also mutated in revenue records and in view of

RSA No. 860 of 2014

provisions of Section 133 of Land Revenue Act, there was

presumption in favour of appellants insofar as possession over

suit property is concerned. It was further contended that to

arrive at conclusion reliance was placed by first appellate Court

on Exs.P.4, that plaintiff had filed Form no.53 in respect of suit

property was ill founded as plaintiff had admitted in cross-

examination. Suit land was situated in Hasthinapura village,

whereas Ex.P.4 showed that application was filed for grant of 4

acres in Sy.No.7A of Kuridoddi-Yamedoddi. Therefore, it was

contended that plaintiff was not in possession of suit property. It

was further contended that admittedly possession claimed by

plaintiff in respect of suit property as unauthorised occupant,

therefore, same was not lawful possession. Hence, plaintiff had

failed to establish one of the necessary ingredient required for

grant of injunction namely lawful possession. First appellate

Court had ignored settled principles of law in this regard.

Therefore impugned judgment and decree called for interference.

On the above grounds sought for allowing appeal by setting

aside judgment and decree.

14. It was further submitted that appeal was admitted on

08.03.2017 to consider following substantial question of law:

RSA No. 860 of 2014

"Whether first appellate Court was justified in reversing finding of the trail Court on issue Nos.1 and 3 and holding plaintiff has proved that he is in lawful possession and enjoyment of suit property as on date of suit and interference of his said possession by defendant? And to consider any other substantial question of law which may arise for consideration while hearing appeal".

15. There is no representation on behalf of respondent

no.1/plaintiff.

16. Learned HCGP appeared for respondents no.2 and 3.

He supported case of appellants case.

17. Heard learned counsel for appellants and perused

impugned judgment and decree and records.

18. From the above submission, it is not in dispute that

suit property originally bearing Sy.No.784, new no.149/P. It is

also not in dispute that an extent of 100 acres out of total extent

of 345 acres 05 guntas was transferred to Horticulture

department. Said sy.No.784 of Sakharayapatna village was later

assigned Survey no.149/P when it was made part of newly

formed Hastinapura village. While plaintiff claims that he is in

unauthorised cultivation to an extent of 4 acres out of Survey

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RSA No. 860 of 2014

no.149/P. Defendants dispute unauthorised cultivation or

possession of plaintiffs.

19. While passing judgment trial Court referred to

deposition of plaintiff examined as PW.1. In support of his

deposition, plaintiff produced copies of RTC as Exs.P.1 to P.3,

copy of extract of form no.53, ledger as Ex.P.4, extract of Index

of lands as Ex.P.5, record of rights and mutation register extract

as Exs.P.6 and P.7; Survey sketch Ex.P.9. He has also produced

copy of judgment passed by this Court in W.P.nos.33643-

33744-55/2000, endorsement, Akar band extract, record of

rights, index of land extract report of tahsildar; copy of mahazar,

RTC extract and copy of notice as Exs.P.11 to P.23 respectively.

Trial Court observed that Exs.P.1 to 3 indicated assigning of

Survey no.149/P to earlier Survey no.784. Ex.P.4 indicated

particulars of persons, who had filed form no.53. Survey sketch

indicated demarcation of 100 acres of land allotted to

Horticulture department. Survey sketch dated 02.07.2003 also

reveals extent and location of unauthorised occupation of plaintiff

in the land allotted to defendants. Index of land records and

Akarbanch etc., indicate Survey.no.149/P being assessed for

revenue and being assigned for purpose of cattle grazing.

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RSA No. 860 of 2014

Ex.P.10 - copy of order passed by this Court in writ petition

would indicate that plaintiff herein was petitioner no.3 in said

writ petition, wherein along with other similarly situated persons

had filed writ petitions seeking for direction to Land Grant

Committee for consideration of their application filed in Form

no.53. Said writ petition was disposed of on 23.10.2000 directing

to committee to consider and dispose of application filed by

petitioners therein afresh within a period of six months. Ex.P.15

correspondence, Ex.P.23 notice also referred plaintiff as one of

the persons in unauthorised cultivation of portion of Survey

no.149/P.

20. On the other hand, evidence led by defendants was

one of denial of plaintiff's case. An official of defendants was

examined as DW.1, who deposed in terms of written statement.

Documentary evidence adduced by defendants was produced as

Ex.D.1-RTC, ExD.2 -complaint, Exs.D.3 and D4 mahazar and

sketch, Ex.D.5 Mutation register and Ex.D.6 Bagar Hukkum

document. Defendants have also produced copy of Survey sketch

dated 02.07.2003 as Ex.D.4, which was also marked by plaintiff

as Ex.P.9. Ex.D.6 would also mention name of plaintiff. Though,

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RSA No. 860 of 2014

it is pertaining to 1998-99, same would indicate plaintiff being in

possession of suit property, albeit, as unauthorised occupant.

21. However, trial Court concluded that as defendants were

granted lands by Government, it had acquired ownership over

same. Ex.P.9 - sketch also marked as Ex.D.4 drawn on

02.07.2003 did not mention about plaintiff being in possession of

suit property and on that count alone proceeded to hold that

plaintiff was not in lawful or settled possession.

22. It further held that appeal filed by defendant to prevent

unauthorised occupation or encroachment as not substantiating

interference. Referring to decision of this Court reported in

Rame Gowda (Deceased) by his Lrs. Vs.M Varadappa

Naidu (deceased) by his Lrs. and another reported in ILR

2006 KAR. 1047, held that possession of a trespasser cannot

be treated as lawful possession, as plaintiff was cultivating lands

as Baggar Hukkum cultivator which would be seasonal and

therefore not constitute lawful or settled possession. On said

finding, trial Court dismissed suit. First appellate Court upon

reappreciation of findings of trial Court proceeded to allow appeal

in part granting protection to plaintiff against dispossession by

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RSA No. 860 of 2014

defendant without due process of law. Against said judgment and

decree defendants are in appeal.

23. Law regarding injunction is fairly well settled. Hon'ble

Supreme Court in Sopan Sukhdeo Sable v. Asstt. Charity

Commr., reported in (2004) 3 SCC 137 has held that even

persons in unauthorised occupation would be entitled to seek

injunction against true owner against illegal dispossession.

Exs.P.1 to P.3 RTC extracts, Ex.P.4 - Copy of extract of form

no.53, Ex.P.5 - Extract of index of land, Ex.P.6 - record of rights,

Ex.P.7 - M.R. extract, Ex.P.8 - copy of survey sketch, Ex.P.10 -

copy of order in Writ petition and Ex.P.15 - report of Tahsildar

and Ex.P.23 - notice referred to name of plaintiff as one of

persons in unauthorised cultivation of portion of land granted to

defendants clearly substantiate plaintiff being in possession of

suit property.

24. Hon'ble Supreme Court in the case of Premji Ratnsey

Shah and Others Vs. Uniotn of India & Others, reported in

(1994) 5 SCC 547, has held that injunction cannot be issued

against true owner. However, Hon'ble Supreme Court in Sopan

Sukhdeo Sable and Others Vs. Assistant Charaity

Commissioner and Others, reported in (2004) 3 SCC 137,

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RSA No. 860 of 2014

referring to earlier decisions on point in paragraph no.24 to 26

has held as under:

24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that

"If any person is dispossessed without his consent from immovable property other wise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit".

That a person without title but in "settled" possession as against mere fugitive possession can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in Lallu Yashwant Singh v. Rao Jagdish Singh (AIR 1968 SC 620), Krishna Ram Mahale v. Mrs. Shobha Venkata Rao, (1989 (4) SCC 131,at p.136), Ram Rattan v. State of U.P. (1977 (1) SCC 188), and State of U.P. v. Maharaja Dharmender Prasad Singh (1989 (2) SCC

505). The leading decision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India (AIR 1954 Bom. 358).

25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner. This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction. In Mahadeo Savlaram Shelke v. Pune Municipal Corporation (1995 (3) SCC 33), it was held, after referring to Woodrofe on "Law relating to

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RSA No. 860 of 2014

injunction; L.C. Goyal 'Law of injunctions; Bean, David: 'Injunctions'; Joyce: Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993 (3) SCC 161) wherein it was observed that injunction is discretionary and that:

"Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court".

26. Reference was also made to Dalpat Kumar v. Prahlad Singh (1992 (1) SCC 719) in regard to the meaning of the words 'prima facie case' and 'balance of convenience' and observed in Mahadeo's case (supra) that: