Karnataka High Court

The Deputy Commissioner vs Lata Ashok Naik on 3 March, 2022

Bench: Ravi V.Hosmani

 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

       DATED THIS THE 3 R D DAY OF MARCH, 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


             M.S.A. NO.100059/2016 (RO)

1.    THE STATE OF KARNATAKA,
      REP.BY THE DEPUT Y COMMISSIONER,
      UTTARA KANNADA DISTRICT, KARWAR.

2.    THE DEPUTY CONSERVATOR OF FOREST,
      KARWAR, UTTARA KANNADA DISTRICT.
                                          ... APPELLANTS
(BY SRI PRASHANT MOGALI , HCGP)

AND

SMT.LATA ASHOK NAIK,
AGE: 52 YEARS, OCC: HOUSEWIFE,
R/O BRAHMANWADA, MAJALI ,
TALUK: KARWAR,
DISTRICT: UTTARA KANNADA,
REP.BY THE GPA HOLDER
SRI BABURARY GAJA SAVANT,
AGE: 42 YEARS, OCC: BUSINESS,
R/O LINGU SAVANT WADA,
MAJALI, KARWAR U.K .
                                         ... RESPONDENT
(BY SRI HAREESH NAYAK AND
 SRI VYAS DESAI, ADVOCATES)

     THIS MISC.SECOND APPEAL IS FI LED UNDER SECTION
43(1) RULE 1(u) OF C.P.C., AGAINST THE JUDGMENT AND
DECREE DATED 22.06.2015 PASSED IN R.A.NO.20/2015 ON
THE FILE OF THE PRINCIPAL SENI OR CIVIL JUDGE, KARWAR,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND     DECREE    DATED     05.11.2014    PASSED    IN
O.S.NO.81/2013, ON THE FILE OF THE CIVIL JUDGE,
KARWAR, DISMISSING THE SUIT AS NOT MAINTAINABLE.
                                 2




     THIS APPEAL COMING ON FOR FINAL HEARING THI S
DAY, THE COURT , DELIVERED THE FOLLOWING:

                            JUDGMENT

Challenging the judgment and decree dated

22.06.2015 passed by Principal Senior Civil Judge,

Karwar in R.A.No.20/2015, this appeal is filed by the

State.

2. The appellants were defendants in suit

while respondent was plaintiff. Respondent had filed

O.S.no.81/2013 seeking relief of permanent

injunction directing appellants to hand over

possession of suit schedule property namely forest

Sy.No.287/A1 of Majali village in Karwar measuring

148 feet x 87 feet. Said relief was sought on the

ground that plaintiff's husband Ashok Sadashiv Naik

had purchased said property in an auction conducted

by Superintendent of Customs and Central Excise,

Karwar on 15.05.1965 for a bid amount of Rs.525/-.

It was also stated that on an earlier occasion when

appellants had sought to disturb peaceful possession

of plaintiff's husband, he had filed O.S.No.2/1983

seeking permanent injunction. Though said suit was

dismissed on 26.11.1986, R.A.No.97/1986 filed

challenging said decree came to be allowed granting

permanent injunction against interference with

peaceful possession. Thereafter when appellants once

again sought to interfere with possession, instant suit

was filed. Appellants herein entered appearance and

filed written statement denying title and possession

of plaintiff. It was contended that suit land was a

'forest land' and Department of Central Excise had no

right, title or interest in respect of 'forest land' and

therefore could not have auctioned it. Even if auction

were to have been conducted, same was without any

right, title and interest and therefore no lawful

interest was conveyed in favour of plaintiff. It was

also contended that in view of judgment passed by

this Court reported in ILR 2012 Karnataka 1275, no

government authority was empowered to transfer or

auction forest land to any individual. It was

contended that as plaintiff was not in possession, suit

for permanent injunction was liable to be dismissed.

3. Based on pleading, trial Court framed

following issues:

(1) Whether the plaintiff proves that Ashok Sadashiv Naik is the absolute owner of the suit schedule property and plaintiff is the legal heir of said Late Ashok Sadashiv Naik?

          (2)   Whether    the     plaintiff   further
                proves    that     the     defendants
                encroached     the    suit   schedule
                property?

          (3)   Whether    the   plaintiff   further

proves that he is entitled to direct the defendants to hand over the possession of the suit schedule property?

          (4)   Whether    the   plaintiff further
                proves     that     the    alleged
                interference by the defendants?

(5) Whether the plaintiff entitled for the relief claimed?

(6) What order or decree?

4. It also framed an additional issue regarding

maintainability of suit on 26.09.2014.

5. After hearing parties on additional issue,

trial Court dismissed suit as not maintainable, in view

of bar of suits contained in Section 42 of the

Karnataka Forest Act, 1963. The said decree was

challenged by plaintiff in R.A.No.20/2015 on several

grounds.

It was contended that trial Court failed to

appreciate that Customs and Excise Department,

Karwar had auctioned suit land which was purchased

by plaintiff's husband in auction. Since then plaintiff

was in possession, cultivation and enjoyment of suit

property. The trial Court also failed to appreciate

judgment and decree passed in earlier appeal namely

R.A.No.97/1986 wherein injunction was granted

against defendants with respect to very same

property.

6. Based on said pleadings, appellate Court

framed following points for its consideration.

1. Whether the trial Court is justified in dismissing suit as not maintainable?

2. Whether interference of this Court is necessary?

3. What order?

7. After recording its finding on point no.1 in

the negative, point no.2 in affirmative, it answered

point no.3 by allowing appeal and remanding matter

back to trial Court for disposal in accordance with law

after granting sufficient opportunity to parties to lead

evidence. Challenging said order of remand,

defendants/State are in appeal.

8. Sri Prashant Mogali, learned High Court

Government Pleader (HCGP) for appellant submitted

that admittedly suit land was a notified 'forest land'

under Section 4 of Forest Act. As plaintiff was

claiming title over 'forest land', it would amount to

challenging notification issued under Section 4 of

Forest Act and therefore bar under Section 42 would

come into play. Learned HCGP further submitted that

since said issue was a question of law, no evidence

was required and trial Court was justified in deciding

preliminary issue regarding maintainability, without

recording evidence. On above grounds, learned HCGP

sought for allowing appeal and setting aside of

judgment passed by first Appellate Court.

9. On the other hand, Sri Hareesh Nayak,

learned counsel for respondent-plaintiff supported

judgment and opposed the appeal. It was submitted

that prayer sought for by plaintiff in O.S.No.81/2013

read as follows:

A. Direct the defendants to handover the possession of the suit property bearing Forest Sy.No.287A1 of Majali village in Karwar Taluka measuring area 140 fts X 87 fts (length and width).

     B.    Restrain          defendants            their        men,
           agents,      servants         or    anybody            who
           claiming           under            them               from
           encroaching,        interfering           or entering
           or    doing       any       thing       in     the     suit

permanently by granting permanent injunction.

C. Such other reliefs including cost of this suit as this Hon'ble Court deems fit in the circumstances of the suit in the interest of justice and equity.

SUIT SCHEDULE PROPERTY

The land bearing Forest 287A1 of Majali village in Karwar Taluka measuring area 140 fts x 87 fts (length and width) bounded by:

       East           : Karwar Goa N.H.
       West           : Other land of same sy.No.
       North          : Other land of same sy.No.
       South          : Other land of same sy.No.

10. Admittedly there was no challenge to any

government order or notification issued under Forest

Act. Therefore invocation of Section 42 by trial Court

was not justified. Learned counsel further submitted

that judgment and decree dated 25.07.1991 passed

by the Civil Judge, Karwar in R.A.No.97/1986

granting injunction against appellants with regard to

very same suit property had attained finality. As

appellants had encroached upon right of plaintiffs,

suit was filed for possession. Therefore, plaintiff had

rightly filed suit for directing appellants herein to

handover possession of said land and question of

validity of auction proceedings or issue whether

plaintiff was in possession of suit land was question

of fact which required trial and could not have been

decided on without recording evidence. Therefore

appellate Court was justified in remanding matter for

disposal of suit after trial.

11. Having heard learned counsel, following

substantial questions of law would arise for

consideration in this appeal.

a. Whether the First Appellate Court is justified in not holding that the above said land belongs to forest department and same is notified under Section 4 of Karnataka Forest Act?

b. Whether the First Appellate Court is justified in not noticing the fact prima-

             facie    the     suit      filed    by       the





              respondent/plaintiff                   is            not

maintainable as per Section 42 of the Karnataka Forest Act?

12. As both substantial questions of law are

analogous for each other, they are taken up for

consideration together.

13. In the instant case while it is the contention

of appellant that suit land was a notified 'forest land'

and suit in respect of 'forest land' was not

maintainable, it is the case of respondent that said

land was purchased by plaintiff's husband in auction

conducted by Central Excise Department and has

been in possession and enjoyment thereof from date

of purchase. It is also case of respondent that on

earlier occasion when appellant had sought to

interfere with physical possession of respondent.

O.S.No.2/1983 was filed for injunction and appellants

were injuncted by a decree passed in

R.A.No.97/1986.

14. Trial court dismissed suit as not

maintainable by invoking Section 42 of Karnataka

Forest Act, 1963. Section 42 of Forest Act reads as

follows:

"42. Bar of suits - No order of the State Government or a Forest Officer not below the rank of a 1 [Deputy Conservator of Forests], under this chapter and no notification issued by the State Government under Section 39, shall be liable to be questioned in any court of law."

15. In order to invoke Section 42 of Forest Act,

there should be challenge to any Government Order

or notification issued under the provisions of Forest

Act. Reliefs sought for in O.S.No.81/2013 reveal that

there is no challenge to any Government Order or

notification issued under Forest Act. Though it is

contended by learned HCGP that seeking of relief in

respect of forest land would amount to seeking relief

contrary to notification issued under Section 4 read

with Section 39 of Forest Act and therefore invocation

of Section 42 by trial court would be justified, the

reasoning of trial court is not to said effect. Moreover