Karnataka High Court
Sri. B.S Babanna Rai vs State Represented By Deputy ... on 15 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 968 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 968 OF 2022 (DEC/INJ)
BETWEEN:
1. SRI. B.S BABANNA RAI,
S/O K THIMMANNA RAI,
AGED 76 YEARS,
R/AT PERALU GUTHU OF
MANDEKOLU VILLAGE,
SULLIA TALUK,
D.K. DISTRICT-574239.
2. SMT. VISHALAKSHI
W/O B.S. BABANNA RAI,
AGED 72 YEARS,
APPELLANT NO.2 REP BY GPA,
i.e., HER HUSBAND B.S.BABANNA RAI,
R/AT PERALU GUTHU OF
Digitally
signed by MANDEKOLU VILLAGE,
SUMA B N
SULLIA TALUK,
Location:
High Court of D.K. DISTRICT-574239.
Karnataka
...APPELLANTS
(BY SRI. SACHIN B S.,ADVOCATE)
AND:
1. STATE REPRESENTED BY
DEPUTY COMMISSIONER,
D.K. DISTRICT,
MANGALORE POST,
MANGALORE-575001.
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RSA No. 968 of 2022
2. THE DEPUTY CONSERVATOR OF FOREST,
MANGALORE, D.K. 575001.
3. THE RANGE FOREST OFFICER,
PUTTUR RANGE,
PUTTUR-574201.
...RESPONDENTS
(BY SMT. AZRA J DUNDGE, AGA.)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 04.12.2021 PASSED IN
R.A. NO.19/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND J.M.F.C., SULLIA, DAKSHINA KANNADA CONFIRMING THE
JUDGMENT AND DECREE DATED 13.11.2019 PASSED IN
O.S.NO.68/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND
J.M.F.C, SULLIA, DAKSHINA KANNADA AND CONSEQUENTLY
ALLOW THE R.A.NO.19/2019 AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants/plaintiffs being
aggrieved by the judgment and decree dated 13.11.2019
passed in O.S.No.68/2010 on the file of Senior Civil Judge and
J.M.F.C, Sullia, Dakshina Kannada, which is confirmed by the
judgment and order dated 04.12.2021 passed in
R.A.No.19/2019 on the file of Senior Civil Judge and J.M.F.C.,
Sullia, Dakshina Kannada.
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2. The above suit is filed by the appellants/plaintiffs for
relief of declaration of their bane privilege over the 'B' Schedule
property and consequential relief of permanent injunction
prohibiting defendants from interfering with the same. The case
of the plaintiffs is that they are the owners of 'A' Schedule
property at Peralu Gathu of Mandekolu Village, Sullia Taluk,
Dakshina Kannada. That item No.1 and item No.2 of the 'A'
Schedule property belonged to the plaintiff No.1. Item No.3 of
the plaint 'A' Schedule property belonged to the plaintiff No.2.
She having obtained the same under the Will.
2.1 It is the case of the plaintiffs that they are having
bane privilege in respect of 'B' Schedule property which is a
joint bane land in respect of Plaint 'A' and 'C' Schedule
property. 'B' Schedule property is in Sy.No.439, originally
measuring 9.41 acres out of which 1.34 acres was granted to
some third persons and out of remaining extent of land an
extent of 0.78 acres was allotted to a School. Thus the plaintiffs
are entitled to have their privilege right in respect of remaining
extent of land which is described in the Schedule 'B' of the
plaint. It is his further case that the defendant-Forest
Department without having any right, title and interest over the
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'B' Schedule land forcibly entered upon the same. The Forest
Officers of Putturu Forest Range, Putturu trespassed over the
property and have illegally planted the trees by digging the pits
thereon. Since, the plaintiff has the privilege right over the 'B'
Schedule property which cannot be cancelled or resigned other
than the process known to law. As such plaintiffs were
constrained to file the suit for the relief of declaration.
2.2 Defendant Nos.4 and 5 filed their written statement
denying the plaint averments and also questioning the
maintaining of the suit. It is contended that the 'B' Schedule
property belonged to Social Forest Division, which is not made
as party to the suit. It is also contended that plaintiff has not
pleaded or produced any documents to establish their right and
privilege over the said bane land. It is further contended that
'B' Schedule property originally belonged to the Social Forest
Division, which is one of the Department under the Government
which is planting trees on the Government lands for the benefit
of public to maintaining the green pasture. Accordingly, the
said department had identified 25 acres of the Government
land in Peralu Gathu of Mandekolu Village, Sullia Taluk and had
planted the trees in the year 1988-89 on several lands
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including 'B' Schedule property and in fact the grown up trees
were also cut down in the year 2009-10, which were auctioned
on 26.05.2010 and 24.07.2010. Thereafter, the said
department has re-planted the trees over the suit property and
the same is completed. The plaintiff has filed the suit only with
the intention of grabbing the Government land.
3. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
"1) Whether the plaintiffs proves that the they
are the owner of the 'A' and 'C' schedule
properties?
2) Whether the plaintiffs proves their title to
the 'A' and 'C' schedule properties?
3) Whether the plaintiffs proves that 'B'
schedule property is the bane privileged land to
their 'A' and 'C' schedule properties?
4) Whether the plaintiffs proves that they have
enjoyed bane privileges over the 'B' schedule
property as contended?
5) Whether the plaintiffs proves that they are
in possession and enjoying the bane privilege
over the 'B' schedule properties?
6) Whether the plaintiffs proves the
interference caused by the defendants?
7) Whether the suit is bad for not issuing the
statutory notice?
8) Whether the suit is bad for non-joinder of
necessary parties?
9) Whether the suit is not maintainable?
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10) Whether the court fee paid is not
sufficient?
11) Whether the plaintiffs are entitled for the
relief of declaration?
12) Whether the plaintiffs are entitled for the
relief of permanent injunction?
13) What Order or Decree?"
4. The plaintiff No.1 examined himself as PW1 and
exhibited 31 documents marked as Ex.P1 to Ex.P31. Defendant
No.4 examined himself as DW1. and exhibited 14 documents
marked as Ex.D1 to Ex.D14. On appreciation of the evidence
the Trial Court answered issue Nos.1 and 2 in the affirmative
and issue Nos.3 to 10 in the negative and consequently
decreed the suit.
5. Being aggrieved by the aforesaid judgment and decree
plaintiff filed an appeal in R.A.No.19/2019 before the First
Appellate Court. Considering the grounds urged the First
Appellate Court framed the following points for its
consideration:
"1. Whether the suit of the Appellants/Plaintiffs
is maintainable under section 114(A) of the
Karnataka Forest Act 1963 and section 2 of
Forest (Conservation) Act, 1980?
2. Whether the impugned Judgment passed by
the trial court suffers from illegality and
required interference of this court?
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3. What order?"
6. On re-appreciation of the evidences, the First Appellate
Court answered point Nos.1 and 2 in the negative and
consequently dismissed the appeal confirming the judgment
and decree passed by the Trial Court. Being aggrieved by the
same plaintiff filed the present appeal before this Court.
7. Sri. Sharath P.H, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submitted that the Trial Court and the First Appellate
Court on appreciation of the evidence have came to the
conclusion that the plaintiffs are the absolute owners of
Schedule 'A' and 'C' properties. He submits that once the issue
has been answered in the affirmative in favour of the plaintiffs,
the Trial Court and the First Appellate Court ought to have
appreciated that the plaintiffs being the owners of the 'A' and
'C' Schedule properties indeed are having privilege right over
the 'B' Schedule property which is a bane land. It is his case
that the privilege right of the bane land being enjoyed by the
plaintiffs and their forefathers from time immemorial and the
revenue records stood in the name of grand father of the
plaintiff, which fact has not been taken note of by the Trial
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Court and the First Appellate Court while dismissing the suit
giving raise to substantial question of law.
8. On the other hand, Smt.Azra J Dundge, learned AGA
for the respondents justifying the judgment and decree passed
by the Trial Court and confirmed by the judgment and order by
the First Appellate Court submitted that plaintiff has not
pleaded as to the extent over which they are seeking bane
privilege land in respect of 'B' Schedule property. She further
points out that though plaintiff contended that bane privilege
land have been shared by the plaintiffs along with others, the
plaintiffs have not made others who are sharing the property as
parties to the suit. It is her further submission that though in
the plaint, the plaintiff had claimed right only in respect of 'A'
schedule property, he has not given any details as to whom 'C'
Schedule property belongs. Thus she submits that the very
frame of the suit being ambiguous, the contention of the
plaintiff having privilege right over the 'B' Schedule property
cannot be accepted. She further submits that in any event 'B'
Schedule property is a forest land being in its possession and
the plaintiffs have no right over the same. She submits that in
the absence of plaintiffs producing any evidence the Trial Court
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and the First Appellate Court are justified in dismissing the suit.
Hence, seeks for dismissal of the appeal.
9. Heard. Perused the records.
10. The relief sought for by the plaintiff in suit is
declaration of their privilege right to use the 'C' Schedule
property which according to the plaintiff is a bane land. Perusal
of the schedule to the plaint would reveal that the plaintiff
No.1(husband of the plaintiff No.2) claiming be the owner of
item Nos.1 and 2 of the suit schedule property which is
measuring 25 cents, 64 cents, 18 cents and 13 cents forming
part of land in Sy.No.112, plaintiff No.2 is claiming to be the
owner of item No.3 of the 'A' Schedule property which is
measuring 12 cents and 15 cents forming part of land in
Sy.No.112 as against the said claim of ownership over the 'B'
Schedule property. Plaintiffs are claiming their privilege right in
respect of 7 acres and 29 cents of land in Sy.No.349, though a
feeble attempt is made by the plaintiff to infuse 'C' Schedule
property into the plaint without any details as to whom the 'C'
Schedule property belongs, the Trial Court and the First
Appellate Court taking note of these aspects of the matter have
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found that the plaintiffs has not claimed any relief expect
making a claim of privilege right over the 'B' Schedule property
and contended that the records stood in the name grand father
of the plaintiff No.1. The plaintiff No.1 has not produced any
evidence with regard to they continuing to have privilege over
'B' Schedule property. Even during the cross-examination as
taken note of by the Trial Court at para No.15 of its judgment,
PW.1 has stated that records were in the name of his grand
father namely Lingappa Rai and that is enough. He has also
not produced any records to prove the genealogy of said
Lingappa Rai connecting to the plaintiff. However, though it is
contended that the subject land was allotted to said Lingappa
Rai in a partition, no such documents is produced before the
Trial Court. Thus, taking note of these aspects of the matter the
Trial Court has found that the plaintiff apart from not being able
to establish the relationship of said Lingappa Rai has also not
produced any documents to prove that the plaintiff continued to
have any privilege right over the 'B' Schedule property. Based
on these aspects of the matter the Trial Court dismissed the
suit.
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11. The First Appellate Court apart from re-appreciating
the evidence and conclusion arrived at by the Trial Court of the
claim of the plaintiff of having privilege right over the bane land
has also taken into consideration provisions of Section 114A of
the Forest Act, 1963 with regard to maintainability of the suit.
The First Appellate Court has also taken into consideration of
Circular dated 11.02.2010 produced at Ex.D12 and has
concluded that in terms of the said circular the privilege that
was enjoyed either by custom or under any Order in respect of
Kumki land, Bane land, Kane land in North and South Canara
District shall stand continued under the circumstances
declaratory relief as sought for by the plaintiffs could not be
granted. Having found that the First Appellate Court at
para.No.20 of its judgment and order found that though the
plaintiffs claimed 'B' Schedule property to be the bane privilege
in respect of 'A' Schedule property and 'C' Schedule property
from the time immemorial has not produced any oral and
documentary evidence to claim that the 'B' Schedule property is
a bane privilege land attached to 'A' and 'C' Schedule properties
from time immemorial as contended.
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12. Since the plaintiff failed to prove their claim of they
having privilege right over the 'B' Schedule property, the First
Appellate Court has dismissed the appeal confirming the
judgment and decree passed by the Trial Court. Since the Trial
Court and the First Appellate Court on appreciating of the
evidence have come to the conclusion that the plaintiffs not
been able to produce any piece of evidence with regard to 'B'
Schedule property forming part of bane land for the purpose of
enjoyment of 'A' Schedule and 'C' Schedule properties and the
same being findings on facts, no error or irregularity can be
found with the conclusion arrived at by the Trial Court
confirming by the First Appellate Court. No substantial question
of law would arise for consideration in this appeal. Accordingly,
appeal is dismissed.
Sd/-
JUDGE
RL
