Smt Parvathamma vs The Chief Secretary
2023 Latest Caselaw 3443 Kant

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                                                          NC: 2023:KHC:21044
                                                            RSA No. 1170 of 2016




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 19TH DAY OF JUNE, 2023

                                               BEFORE

                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI

                           REGULAR SECOND APPEAL NO.1170 OF 2016 (INJ)

                      BETWEEN:

                      SMT. PARVATHAMMA
                      W/O VENKATARAJU,
                      AGED ABOUT 41 YEAWRS,
                      R/AT CHOWDARIPALYA VILLAGE,
                      KASABA HOBLI,
                      KUNIGAL TALUK - 572 130.
                                                                    ...APPELLANT

                      (BY MS.PRIYANKA, ADVOCATE FOR
                          SRI. SHIVAKUMAR N., ADVOCATE)

                      AND:

                      1.    THE CHIEF SECRETARY
Digitally signed by         TO GOVERNMENT,
THEJASKUMAR N
Location: HIGH
                            VIDHANASOUDHA,
COURT OF                    BANGALORE-560001.
KARNATAKA

                      2.    THE DEPUTY COMMISSIONER
                            TUMKUR DISTRICT-573201.

                      3.    THE ASSISTANT COMMISSIONER
                            TUMKUR-572101.

                      4.    THE THASILDAR
                            KUNIGAL TALUK-572130.

                      5.    DISTRICT CONSERVATOR OF FOREST,
                            TUMKUR-572101.
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                                      NC: 2023:KHC:21044
                                        RSA No. 1170 of 2016




6.   THE RANGE FOREST OFFICER
     HULIYUDURGA RANGE,
     KUNIGAL TALUK-572130.
                                              ...RESPONDENTS
(BY SRI. H.K.BASAVARJ, AGA)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.

     THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Ms. Priyanka. learned counsel on behalf of

Sri.Shivakumar.N., for the appellant, and Sri.H.K. Basavaraj.,

learned AGA for respondents who have appeared in person.

2. This is an appeal from the Court of Senior Civil

Judge & JMFC, Kunigal.

3. For the sake of convenience, the parties shall be

referred to as per their status and rankings before the Trial

Court.

4. The plaint averments are these:

It is the case of the plaintiff that the land-bearing Sy.

No.24 of Muthugadahalli Village, Kasaba Hobli, Kunigal Taluk

total measuring 39.32 Acres is Gomal land out of which the

Deputy Commissioner -the second defendant has handed over

NC: 2023:KHC:21044 RSA No. 1170 of 2016

20 Acres of land in favor of the fifth defendant for the

development of Forest and the remaining 19 Acres 32 Guntas

has retained its character as Gomala land and vests with the

State Government. It is averred that out of 19 Acres 32 Guntas

of land, the plaintiff has been cultivating as an unauthorized

cultivator of land to an extent of 03 Acre 20 Guntas and she is

raising Coconut, Banana, Mulberry, Ragi crops. It is contended

that she has taken good crops from the said land, and it is the

only source of livelihood for her family she has dug a borewell

and has installed an electric pump set. The plaintiff has

specifically contended that she moved an application to

regularize her cultivation with the Land Grant Committee,

Kunigal. Unfortunately, the Committee rejected her application

in the year 2001 and she preferred an appeal against the order

of the Committee. Despite these facts, the defendants tried to

dispossess the plaintiff from the suit land and in this regard

they also issued a show-cause notice to plaintiff on 20.10.2010

for eviction. Hence she was constrained to take shelter under

the Court of law and filed a suit for bare injunction restraining

defendants from dispossessing her from the suit property.

NC: 2023:KHC:21044 RSA No. 1170 of 2016

5. After the service of the suit summons, the

defendants appeared through AGP. Out of six defendants, the

fifth & sixth defendants filed a written statement. They

admitted as to the land to an extent of suit Sy.No.24 and the

grant of 20 Acres of land to the Forest Department for the

development of the forest. They contended that the entire

property i.e., Sy.No.24 has been entered in the name of the

Forest Department in Revenue records. The Forest Department

has developed the land by planting several trees. They denied

the plaintiff's possession over the suit schedule property, and

they contended that she tried to encroach upon the forest land

and hence they were constrained to issue notice. Among other

grounds, they prayed for the dismissal of the suit.

6. Based on the above pleadings, the Trial Court

framed the Issues. To substantiate their claim, parties led their

evidence and got marked the documents.

7. On the trial of the action, the suit came to be

dismissed. Aggrieved by the Judgment & Decree of the Trial

Court, the plaintiff preferred an appeal before the First

Appellate Court. On appeal, the First Appellate Court confirmed

NC: 2023:KHC:21044 RSA No. 1170 of 2016

the Judgment & Decree of the Trial Court and dismissed the

appeal. Hence, this Regular Second Appeal is filed under

Section 100 of CPC.

8. Ms.Priyanka., learned counsel for the appellant

submits that the Judgment & Decree of both Courts are against

the facts and circumstances of the case and hence the same

are liable to be set aside.

9. Next, she submits that both Courts erred in

dismissing the suit of the plaintiff without properly appreciating

oral and documentary evidence produced by the plaintiff.

10. A further submission is made that the Trial Court

has grossly erred in answering Issue No.1 in the negative she

also submitted that the notice issued by the fourth & fifth

defendants themselves shows that the plaintiff is in the

possession and enjoyment of the suit property.

11. Ms.Priyanka., vehemently contended that the

plaintiff is in peaceful possession and enjoyment of the property

as it is Gomala land. The Trial Court & the First Appellate Court

have given the wrong finding that the property is forest land.

NC: 2023:KHC:21044 RSA No. 1170 of 2016

12. Lastly, she submits that it is a settled principle of

law that even a trespasser is entitled to an order of injunction

as the possession of the plaintiff over the suit schedule

property is an unauthorized one. Hence, she submits that the

Regular Second Appeal may be admitted by framing substantial

questions of law.

13. Sri.H.K. Basavaraj., learned AGA for respondents

justified the Judgments & Decrees of the Trial Court & the First

Appellate Court. He submits that the Trial Court and the First

Appellate Court in extenso referred to the oral and

documentary evidence on record and rightly rejected the suit

for the relief of injunction. Lastly, he submits that the appeal

does not raise any substantial question of law and hence the

same may be dismissed at the stage of admission itself.

14. Heard, the contentions urged on behalf of the

respective parties and perused the Judgments & Decrees of the

Trial Court & the First Appellate Court with utmost care.

15. The suit giving rise to this appeal was brought by

the plaintiff for the relief of a permanent injunction. As could be

seen from the lis between the parties, the suit is for a bare

NC: 2023:KHC:21044 RSA No. 1170 of 2016

injunction based on possession. It is the specific contention of

the plaintiff that the suit schedule property is Gomala land and

she is in unauthorized possession of the same she is also

cultivating the land and she is raising crops. On the trial of the

action, it was found from the evidence on record that the

plaintiff is not in possession of the suit property.

16. Ms.Priyanka., learned counsel appearing on behalf

of the appellant in presenting her arguments strenuously urged

that the Trial Court has failed to appreciate the fact that the

plaintiff is in possession and enjoyment of the suit schedule

property as of the date of filing of the suit. She also argued by

the issuance of notice by the government itself is a prima-facie

proof that the plaintiff is in possession and enjoyment of the

suit schedule property as of the date of filing of the suit.

17. In reply, learned AGA submits that the government

issued notice since the plaintiff tried to encroach upon the

forest land. He also argued that the plaintiff is not in possession

of the suit land.

18. Heard the contentions about the issue of notice.

The specific contention of the plaintiff is that Government

NC: 2023:KHC:21044 RSA No. 1170 of 2016

issued notice on 20.10.2010 to evict her from the suit schedule

property. Strangely, she did not produce the said notice. On

the other hand, she produced the notice that is dated

18.02.2013. The same is marked as Ex P-1. The appellant tries

to contend that the plaintiff is an illiterate lady, and she has

lost the notice issued by Government on 20.10.2010 hence the

same was not produced before the Trial Court. The submission

made on behalf of the appellant cannot be accepted.

Furthermore, the plaintiff tried to encroach upon the forest land

hence the notice was issued to the plaintiff on 18.02.2013 for

encroachment and not for eviction as contended. Hence, the

contention about the issuance of notice for eviction and that

itself is a prima facie proof of possession is satisfactorily

hopeless.

19. It would be relevant to see that in a suit for bare

injunction, the plaintiff must prove their lawful possession and

enjoyment over the suit schedule property as of the date of the

filing of the suit. Based on material proof, the Trial court

concluded and held that the plaintiff has failed to establish her

peaceful possession and enjoyment over the suit schedule

property as on the date of filing of the suit. The First Appellate

NC: 2023:KHC:21044 RSA No. 1170 of 2016

Court has examined the material evidence on record and

re-appraised it. I am satisfied that it has been appreciated from

the correct perspective. Furthermore, the findings about the

possession recorded by the Trial Court & the First Appellate

Court are neither vitiated by non-consideration of relevant

evidence nor there is a wrong approach to the matter. Where

based on evidence on record the Trial Court and the First

Appellate Court had concurrently arrived at a finding of fact,

the High Court in the Second Appeal cannot reverse the said

concurrent findings under ordinary circumstances.

20. It is well to see that after the 1976 amendment, the

scope of Section 100 of the CPC has been drastically curtailed

and narrowed down. Under Section 100 of the Code of Civil

Procedure 1908 (as amended in 1976) the jurisdiction of the

High Court to interfere with the judgment of the Court below is

confined to hearing substantial questions of law. Interference

with a finding of a fact by the High Court is not called for if it

involves re-appreciation of the evidence.

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NC: 2023:KHC:21044 RSA No. 1170 of 2016

21. No substantial question of law arises for

consideration in this appeal. As a result, I find no merit in this

appeal, and so, it is dismissed at the stage of admission.

Sd/-

JUDGE

TKN