Karnataka High Court
The Chief Secretary vs Sri Manjaiah on 31 October, 2023
Bench: Jyoti Mulimani
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RSA No. 1888 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.1888 OF 2008 (INJ)
BETWEEN:
1. THE CHIEF SECRETARY,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE - 560 001.
2. THE RANGE FOREST OFFICER,
WILD LIFE DIVISION, KARGAL,
SAGAR TALUK - 577 401.
...APPELLANTS
(BY SMT. RASHMI PATIL., HCGP)
AND:
SRI MANJAIAH
S/O SRI PAYAPPA,
MAJOR,
Digitally signed by R/O MARABIDI,
THEJASKUMAR N MANDAVALLI VILLAGE,
Location: HIGH
COURT OF ARALAGODU POST,
KARNATAKA SAGAR TALUK - 577 401.
...RESPONDENT
(BY SRI. C.B.MINAJIGI., ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.
THIS REGULAR SECOND APPEAL IS COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 1888 of 2008
JUDGMENT
Smt.Rashmi Patel., learned HCGP for the appellants has
appeared in person.
This is an appeal from the Court of Addl. Civil Judge
(Sr. Dn.) and JMFC, Sagar.
For convenience, the ranking of the parties shall be
referred to as their rankings before the Trial Court.
2. The brief facts are these:
The plaintiff filed a suit before the Court of the Principal
Civil Judge (Jr.Dn), Sagar in O.S.No.163/2000. He contended
that his father was in possession and enjoyment of the
scheduled property and constructed a house. After his death,
his mother continued in possession of the scheduled property.
It is averred that she was under Bagar Hukum cultivation and
filed an application before the Tahasildar on 07.08.1999 and
the same is pending consideration. The T.T was paid to the
Tahasildar. It is averred that the defendants were never in
possession of the scheduled property, and they tried to obstruct
and illegally evict him. Hence, he sought shelter under the
Court of law and filed a suit for a permanent injunction.
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After the service of the suit summons, the defendants
appeared through A.G.P and filed a written statement. They
contended that Sy.No.48 belongs to the Forest Department. It
measures 170 Acres 14 Guntas in extent. They denied the
possession of the plaintiff over the scheduled property. Among
other grounds, they prayed for the dismissal of the suit.
Based on the above pleadings, the Trial Court framed
issues. To substantiate their claim, the plaintiff examined
himself as PW1 and marked seven documents as Exs.P1 to P7.
The defendants neither led oral evidence nor furnished
documents. On the trial of the action, the Trial Court vide
judgment and decree dated 14.06.2002, dismissed the suit. On
appeal, the First Appellate Court vide Judgment dated
22.11.2007 allowed the appeal and decreed the suit. Hence,
this Regular Second Appeal is filed under Section 100 of CPC.
3. This Court vide order dated:02.12.2011 admitted
the appeal and framed the following substantial questions of
law:
(1) In the absence of proof that the lands in question
are revenue lands and the respondent is seeking
regularization of possession, was the Appellate
Court right in granting an order of injunction
against forest officers?
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(2) Has not the learned Appellate Judge erred in
declining to decide the issue as to whether forest
land could be granted to the respondent other
than the sanctioned land under the Act?
4. Smt.Rashmi Patel., learned HCGP for the appellants
submits that the judgment and decree of the Appellate Court
are contrary to law, facts and probabilities of the case and
hence the same is liable to be set aside.
Next, she submits that the Appellate Court erred in not
appreciating the fact that Sy.No.48 of Mandavalli Village,
Aralagodu Post, Sagar Taluk measuring 170 Acres and 14
Guntas belongs to the Forest Department. She contended that
neither the plaintiff nor his parents were ever in possession of
the suit schedule property and therefore, the plaintiff is not
entitled to the relief of injunction.
A further submission is made that the name of the Forest
Department is entered in the Mutation Register and it is the
forest land.
Lastly, she submits that the findings recorded by the
Appellate Court are erroneous and lack judicial reasoning.
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Therefore, she prayed that the Regular Second Appeal may be
allowed.
5. Heard, the contentions urged on behalf of the
appellant and perused the appeal papers and the records with
utmost care.
6. The suit giving rise to this appeal was bought by
the plaintiff seeking the relief of injunction. As could be seen
from the nature of the lis between the parties, the suit is one
for a bare injunction based on possession as on the date of
suit. The right to injunction is based on prima facie right. The
issue revolves around the factum of possession as on the date
of filing of the suit. It would be relevant to see that in a suit for
bare injunction, the plaintiff must prove his/her lawful
possession and enjoyment over the suit schedule property as of
the date of filing of the suit.
7. Suffice it to note that the plaintiff has filed the suit
for a permanent injunction against dispossession based on a
long-settled possession. The plaintiff led evidence to
substantiate his case. There is no evidence on behalf of the
defendants. The law is well-settled by the Apex Court in RAME
GOWDA VS VARADAPPA NAIDU reported in AIR 2004 SC
4609 that when the plaintiff was found to be in settled
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possession, he would be entitled to the relief of injunction
restraining the defendants from interfering with his possession.
It is settled law that a party in possession can claim injunction
against everyone, including the rightful owner since the rightful
owner also must follow due process of law to evict him.
8. Learned HCGP in presenting her arguments
strenuously urged that the plaintiff is a trespasser and he is in
unauthorized occupation of the forest land. She argued by
saying that the plaintiff applied to regularize his possession and
the same is pending consideration.
Noted the submission made on behalf of the Government.
Except for saying that the plaintiff is a trespasser, the
Government has done nothing. Furthermore, the issue is about
the grant of an order of a permanent injunction. The issue
neither relates to the regularization of possession nor a grant of
the land. As already noted above, when the plaintiff was found
to be in settled possession, he would be entitled to the relief of
injunction restraining the defendants from interfering with his
possession.
9. The First Appellate Court has examined the
evidence on record and re-appraised it. I am satisfied that it
has been appreciated from the correct perspective.
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Furthermore, the findings by the Appellate Court are neither
vitiated by non-consideration of material evidence nor there is
a mistake or mistaken approach to the matter. I do not find
any error in the finding of facts. For the reasons stated above, I
find no infirmity in the Judgment and decree of the Appellate
Court.
The substantial questions of law framed by this Court are
answered holding that the issue does not relates to
regularization of possession and the grant of the land. The
Regular Second Appeal is devoid of merits, and it is liable to be
dismissed.
10. Accordingly, the Regular Second Appeal is
dismissed.
Sd/-
JUDGE
TKN
