Karnataka High Court

Annappa vs The State Of Karnataka on 14 March, 2022

Bench: Ashok S. Kinagi

                              1




         IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 14TH DAY OF MARCH, 2022

                         BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                RSA No.641/2008 (INJ)

BETWEEN:

SUBHADRABAI
W/O GURUBASAPPA DESHETTY,
AGED: 53 YEARS, OCC; AGRICULTURE,
R/O GOLA (B) TQ; ALAND,
DIST; GULBARGA.
                                          ...APPELLANT

(BY SRI.A.M.NAGRAL, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      DEPUTY COMMISSIONER,VIKAS BHAVAN,
      DIST; GULBARGA.

2.    THE DEPUTY COSNERVATOR OF FOREST OFFICE
      NEAR DIST. COURT, DIST; GULBARGA.

3.    THE RANGE FOREST FOFICER
      (TERRITORIAL NEAR PWD OFFICE)
      ALAND.
                                      ... RESPONDENTS

(BY SMT. MAYA .T.R., HCGP )
                             2




      This Regular Second Appeal is filed under Section
100 of CPC, praying to allow the appeal and set aside the
judgment and decree passed by the Civil Judge (Sr.Dn) at
Aland in R.A.No.19/2007 dated 22.12.2007 and restore the
judgment and decree of the Civil Judge (JD) Aland, dated
04.12.2006 in O.S.No.69/2005.

      This appeal coming on for Final Hearing, this day,
the Court delivered the following:-


                      JUDGMENT

This appeal is filed challenging the judgment and

decree dated 22.12.2007 passed in R.A.No.19/2007

by the Civil Judge (Sr.Dn) at Aland.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the plaintiff and respondents are the

defendants before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff filed a suit for permanent injunction

restraining the defendants from dispossessing and not

to obstruct her peaceful possession and enjoyment of

suit schedule property bearing Sy.No.266 measuring 4

acres situated at Gola (b) village, Tq: Aland, Dist:

Gulbarga. It is the case of the plaintiff that the suit

property was granted by Akram and Sakram

Committee of Aland. Accordingly, the suit property is

in possession and enjoyment of the plaintiff and she is

cultivating the same. The Tahsildar has issued Grant

Certificate. On the strength of the Grant Certificate,

the name of plaintiff is appearing in the record of

rights. The defendants are no way concerned to the

suit property and the officials of the defendants tress-

passing in the suit schedule property and planting

trees over it. But the plaintiff requested defendants

not to do so, but they did not heed to the request

made by the plaintiff. Thus, cause of action arose to

file a suit for injunction. Hence, the plaintiff filed a

suit.

3.1. Defendant No.3 filed written statement

denying the possession of the plaintiff over the suit

scheduled property and it is contended that the

Tahsildar has no locus-standi to grant the land in

favour of plaintiff as the suit land is Forest Land and

Since from the year 1980 Department has been

planting trees over the suit property, which is in

possession of Forest Department. It is contended that

the plaintiff is not in possession of the suit property.

Hence, prayed to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiff proves that she is in possession of suit property on the date of filing of suit?

2. Whether the plaintiff proves the alleged interference by the defendants?

3. What order or decree?

3.3. In order to prove the case, plaintiff

examined herself as PW-1 and examined two

witnesses as PW-2 and PW-3 and got marked the

documents as Exs.P1 to P5. On the other hand,

official of defendant No.3 examined as DW-1 and

examined one witness as D.W.2 and got marked the

documents as Exs.D1 to D4. The Trial Court, after

recording the evidence and considering the material

on record, held that the plaintiff has proved that she is

in possession of the suit property as on the date of

filing of the suit and further recorded finding that the

plaintiff has proved alleged interference by the

defendants and consequently, decreed the suit of the

plaintiff.

3.4. The defendants aggrieved by the judgment

and decree passed by the Trial Court, filed an appeal

in R.A.No.19/2007. The First Appellate Court framed

the following points for consideration:

1. Whether the appeal is maintainable under Law of Limitation in view of delay of 50 days to prefer this appeal?

2. Whether the Judgment and decree of the Court below is not justifiable to decreeing the suit of the plaintiff for perpetual injunction against defendants and if so not sustainable, the impugned Judgment and decree is perverse, illegal and erroneous as per the provision of Karnataka Forest Conservation Act, 1980?

3. What order?

3.5. The First Appellate Court, after re-

appreciation of the evidence on record, allowed the

appeal filed by the defendants and dismissed the suit

of the plaintiff. Plaintiff aggrieved by the judgment

and decree passed by the First Appellate Court has

filed this appeal.

4. On 21.02.2009 this Court has admitted the

appeal for considering the following substantial

question of law:

"Whether the Appellate Court was justified, in the facts and circumstances of the case in reversing the judgment and decree of the Trial Court in O.S.No.69/2005?"

5. Heard learned counsel for the appellant-

plaintiff and learned High Court Government Pleader

appearing for the respondents-defendants.

6. Learned counsel for the appellant-plaintiff

submits that the Tahsildar has granted the suit land

under Ex.P1 and on the strength of Ex.P1, name of

the plaintiff was entered in the revenue records. The

Trial Court drawing presumption under Section 133 of

the Karnataka Land Revenue Act has recorded finding

that the plaintiff is in possession of the suit property.

The First Appellate Court has committed an error in

reversing the judgment and decree of the Trial Court.

On these grounds, he prays to allow the appeal.

7. Learned High Court Government Pleader

appearing for the respondents-defendants submits

that the suit land is the forest land and it was notified

in the year 1980. The Tahsildar has no jurisdiction to

grant forest land in favour of the plaintiff. She further

submits that on the strength of Ex.P1, plaintiff has not

acquired any valid title over the suit schedule

property. She submits that there cannot be any

presumption under Section 133 of the Karnataka Land

Revenue Act in regard to forest land. In order to

buttress her arguments, she relied on the judgment of

this Court in the case of The Deputy Convservator

of Forest, Chikmagalur Division, Chikmagalur

and another vs. T.K.Thammanna Gowda and

Others reported in 2011(3) Kar. L.J. 556. She also

placed reliance on the judgment of the Hon'ble Apex

Court in the case of Padhiyar Prahladji Chenaji

(Deceased) Through L.R.s vs. Maniben

Jagmalbhai (Deceased) Through L.R.s and Ors.,

in Civil Appeal No.1382/2022 disposed of on

03.03.2022. She further submits that no injunction

can be issued against true owner. She submits that

defendants have produced Exs.D1 to D4 which

disclose that the said suit land is a forest land. Hence,

she submits that the First Appellate Court was

justified in reversing the judgment and decree passed

by the Trial Court. She further submits that the

judgment and decree passed by the First Appellate

Court is just and proper and does not call for

interference and prayed to dismiss the appeal.

8. Perused the records and considered the

submissions made by learned counsel for the parties.

9. It is the case of the plaintiff that the

Tahsildar has granted the suit land in favour of the

plaintiff. In order to establish that the Tahsildar has

granted the suit land in favour of the plaintiff, she

has produced grant certificate which is marked as

Ex.P2. Ex.P2 discloses that the suit land was granted

in favour of the plaintiff. On the basis of said

document, plaintiff has got entered her name in the

revenue records as per mutation order at Ex.P3.

Ex.P3 discloses that the name of the plaintiff has been

mutated in respect of the suit property. The plaintiff

has also produced Ex.P4 i.e., record of rights which

disclose that the plaintiff is the occupant and

cultivator in respect of land in Sy.No.266 measuring 4

acres. The Trial Court relying upon Exs.P3 to P5

recorded finding that the plaintiff is in possession and

enjoyment of the suit property. The defendants

except producing Exs.D3 and D4 contending that the

suit schedule property is the forest land, they have

not produced notification to show that the suit land is

a reserved forest. Section 4 of the Karnataka Forest

Act, 1993 reads as under:

"4. Notification by Government.- (1) Whenever it has been decided to constitute any land a reserved forest the State Government shall issue a notification,-

(a) declaring that it has been decided to constitute such land a reserved forest;

(b) specifying, as nearly as possible, the situation and limits of such land; and

(c) appointing an officer (hereinafter called the "Forest Settlement Officer") to inquire into and determine the existence, nature and extent of any rights claimed by or alleged to exist in favour of any person in or over any land comprised within such limits or in or over any forest produce, and to deal with the same as provided in this Chapter.

Explanation.-For the purpose of clause (b) it shall be sufficient to describe the limits of the forest by roads, rivers, bridges, or other well-known or readily intelligible

boundaries.

(2) The officer appointed under clause (c) of sub-section (1) shall, be a person not holding any forest office except that of Forest Settlement Officer; but a Forest Officer may be appointed by the State Government to represent it in the inquiry under this Chapter by the Forest Settlement Officer."

The First Appellate Court merely relying on

Exs.D3 and D4 has recorded finding that it is forest

land.

10. Whenever it has been decided to constitute

any land a reserved forest, State Government shall

issue notification declaring that it has been decided to

constitute such land a reserved forest and specifying,

as nearly as possible, the situation and limits of such

land. In the present case, the defendants have failed

to produce notification to establish that the said land

is reserved for forest. The First Appellate Court

merely relying on Exs.D3 and D4 and Section 2 of the