Karnataka High Court
Sadananda S/O Mankali Hosakatta vs Aravind S/O Bommayya Hosakatta on 3 July, 2024
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RSA No. 2410 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 2410 OF 2007 (INJ-)
BETWEEN:
1. SADANANDA
S/O MANKALI HOSAKATTA
AGED ABOUT 40 YEARS,
2. VINAYAK
S/O MANKALI HOSAKATTA
AGED ABOUT 30 YEARS,
3. DANU
S/O NARAYAN HOSAKATTA
AGED ABOUT 42 YEARS,
Digitally signed
by SAROJA 4. DAYA
HANGARAKI S/O NARAYAN HOSAKATTA
Location: HIGH AGED ABOUT 38 YEARS,
COURT OF
KARNATAKA
DHARWAD 5. PARAMESHWAR
BENCH
DHARWAD S/O NARAYAN HOSAKATTA,
AGED ABOUT 34 YEARS,
6. UDAY
S/O NARAYAN HOSAKATTA
AGED ABOUT 30 YEARS,
7. ISHWAR
S/O JATTI HOSAKATTA
AGED ABOUT 59 YEARS,
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RSA No. 2410 of 2007
ALL ARE MAJOR,
AGRICULTURISTS,
RESIDENTS OF HOSAKATTA,
TAL: KUMTA,
U.K.DISTRICT-581343.
...APPELLANTS
(BY SRI VIJAYKUMAR B. HORATTI, ADVOCATE FOR
SRI RAVI G.SABHAHIT, ADVOCATE)
AND:
ARAVIND S/O BOMMAYYA HOSAKATTA,
AGED : MAJOR
(CORRECT AGE NOT KNOWN TO APPELLANT)
R/O HOSAKATTA, TAL: KUMTA,
U.K.DISTRICT-581343.
...RESPONDENT
(BY SRI S.G.KADADAKATTI, ADVOCATE FOR
SRI GANAPATHI S. SHASTRI, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED 25.06.2007 PASSED
BY THE CIVIL JUDGE (SR.DN.) KUMTA, IN R.A.NO.233/2006,
REVERSING THE JUDGMENT AND DECREE DATED 25.07.2005
PASSED BY THE CIVIL JUDGE (JR.DN.) KUMTA, IN O.S.NO.66/1997,
AND THE SUIT FILED BY THE PLAINTIFF MAY BE DISMISSED, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 2410 of 2007
JUDGMENT
The present second appeal is filed by the defendants
under Section 100 of the Code of Civil Procedure, 19081
challenging the judgment and decree dated 25.07.2007
passed in R.A.No.233/2006 by the Court of Civil Judge
(Senior Division) Kumta2.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
3. It is the case of the plaintiff that, in order to
enable him to catch the fishes in the Aghanashini River at
'Kesarmane', he obtained a licence from the Officer of
Port, Honnavar since 1981-82, and the said license is
being renewed every year. It is the further case of the
plaintiff that in view of grant of licence, he has been
carrying out fishing activities at the said River where sluice
gates have been fixed by the Government.
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'First Appellate Court'
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4. It is the further case of the plaintiff that, except
him, no other person is permitted to carry out the fishing
activities in the said place. That the defendants have been
obstructing the fishing activity being carried out by the
plaintiff and the defendants have also not obtained any
licence or permission from the Port authority to carry out
fishing. That a case under Section 100 of the Code of
Criminal Procedure3 was also registered against the
defendants and tried on the file of the Executive
Magistrate, Kumta, in view of the obstruction made to the
plaintiff. Since the defendants have obstructed the fishing
activities carried out by the plaintiff, he filed a suit for
injunction.
5. The defendants entered appearance in the said
suit through a counsel and filed a detailed written
statement denying the case of the plaintiff. The
defendants have specifically denied the rough sketch
produced along with the plaint where the plaintiff is
Hereinafter referred to as the 'Cr.P.C'
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carrying out the fishing activities. The defendants have
also specifically denied with regard to any licence being
issued by the Port authority.
6. It is further case of the defendants that, ever
since their ancestors, they have been carrying out fishing
activities particularly at the place where the sluice gates
have been fixed and they have been carrying out the
fishing activities since their birth. It is further specifically
contended that, the plaintiffs have filed a suit without
making the statutory authority as a party to the suit and
hence, they have sought for dismissal of the suit.
7. Consequent to the pleadings of the parties, the
trial Court framed the following issues:
1) Whether the Plaintiff proves that he is fishing at 'ABCD'
sluice gate put across Aghanashini river near Basu gazani
lawfully as on the date of the filing of the suit ?
2) Whether the Plaintiff proves the alleged interference
caused by the defendants in his fishing as alleged in the
plaint ?
3) Whether the Plaintiff is entitled to the relief of permanent
injunction which he has claimed ?
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4) What order/decree?
8. The plaintiff examined himself as PW1. Ex.P.1
to Ex.P.3 have been marked in evidence. Defendant No.5
examined himself as DW.1. Two witnesses were examined
as DW.2 and DW.3. No documentary evidence have been
produced by the defendants. The Trial Court vide its
judgment and decree dated 25.07.2005 dismissed the
suit.
9. Being aggrieved, the plaintiff preferred R.A
No.233/2006. The defendants entered appearance before
the First Appellate Court and contested the said
proceedings. The First Appellate Court framed the
following points for consideration:
1) Whether the judgment and decree passed by the
Learned Civil Judge (Jr.Dn.), Kumta, in
0.S.No.66/1997 dated 25-7-2005 dismissing the suit
of the plaintiff is perverse, capricious, arbitrary and
erronious on the grounds alleged in the appeal memo?
2) Whether the judgment and decree of the trial court
calls for interference by this court ?
3) What order?
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10. The First Appellate Court, upon a re-
appreciation of the oral and documentary evidence on
record, vide its judgment and decree dated 25.06.2007
allowed the appeal and passed the following order:
"The appeal is allowed.
The Judgment and decree of the trial court is
hereby set aside.
The defendants or any persons on their
behalf are hereby restrained by an order of
permanent injunction from causing obstruction to
the plaintiff for fishing in the area shown as 'A B
C D' in the handsketch map near the Jantradi, by
putting stakes and net.
The parties to bear their own costs.
Draw decree accordingly."
11. Being aggrieved the present second appeal is
filed. This Court vide order dated 31.05.2010, admitted
the above appeal and framed the following substantial
questions of law:
1) Whether the lower Appellate Court is justified in
decreeing the suit when Ex.P.3 is proved to be a
forged document?
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2) Whether the lower Appellate Court is justified in
decreeing the suit without considering the
provisions of Section 67 of the Karnataka Land
Revenue Act?
12. Learned counsel for the appellant/ defendants
contends that, the defendants having denied the license as
claimed by the plaintiff and hence, the plaintiff ought to
have examined the Officer of the authority which granted
the license to the plaintiff to prove the same. Further he
contends that, the plaintiff has not made the Port
Authority as a party to the suit and hence, the suit is not
maintainable. He further contends that, there are various
discrepancies and over writings in the license (Ex.P.3) and
in the absence of the plaintiff examining the person who
issued the licence, it cannot be held that, the plaintiff has
proved that, he has a license to carry out the fishing
activity. He further contends that, having regard to
Section 67 of the Karnataka Land Revenue Act4, the State
Government being the owner of all public waterways, the
plaintiff ought to have proved that, he is entitled to carry
Hereinafter referred to as 'the Act'
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out the fishing activities. He further contends that, the
Trial Court had appropriately appreciated the oral and
documentary evidence on record and dismissed the suit
which ought not to have been interfered with by the First
Appellate Court. Hence, he seeks for allowing of the above
appeal and setting aside of the judgment and decree
passed by the First Appellate Court.
13. Per contra, learned counsel for the respondent/
plaintiff justifies the judgment and decree passed by the
First Appellate Court and submits that, the plaintiff having
granted a license to carry out the fishing activities, the
defendants without any authority or licence are interfering
with the fishing activities being carried out by the plaintiff.
He further submits that, the licence (Ex.P.3) is a public
document and the plaintiff has produced the same and it
cannot be held that the plaintiff is not entitled to carry out
the fishing activities. He further submits that, the
defendants are interfering with the fishing activities being
carried out by the plaintiff who has been duly authorised
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to do so. He submits that, the First Appellate Court has
rightly re-appreciated all aspects of the matter and
decreed the suit and the decree of the First Appellate
Court ought not to be interfered with by this Court in the
present second appeal.
14. The submissions of both the learned counsels
have been considered and the materials on record
including the records of Trial Court and First Appellate
Court have been perused.
15. It is forthcoming that, the plaintiff is claiming to
have exclusive fishing rights on the Aghanashini River at
the place called 'Kesarmane' immediately where the sluice
gates are located. In order to prove the aspect that he is
solely entitled to carry out the fishing activities, the
plaintiff is relying on the license issued by the Port Officer,
Honnavar (Ex.P.3). In order to demonstrate the place
where he is carrying out the fishing activities, the plaintiff
relied upon the sketch issued by the Port Conservator,
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Tadadi (Ex.P.2). However, the plaintiff has not examined
the Officer who has issued Ex.P.2 and Ex.P.3.
16. The Trial Court while appreciating the license-
Ex.P.3 has noticed the following aspects:
i) The Ex.P.3 is a duplicate one and no original
licence is forthcoming for having been issued
in the year 1980-81;
ii) The word 'Basu Gajani' has been written in
hand and the same creates serious doubt
with regard to genuineness of the document;
iii) Except Ex.P.3, the plaintiff has not produced
any other supporting document for having
issued such type of licence issued to any
other person/s permitting them to put up
stakes for fishing in any other River;
iv) The contents of Ex.P.3 does not disclose
anything with regard to provisions of any Act
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or Rules under which the same has been
issued;
v) The conditions observed in Ex.P.3 clearly
points out that the same is only in respect of
planting of stakes within Port limits with
conditions;
vi) The license may be in respect of Rivers
which are coming within Port limits;
vii) The burden is cast on the plaintiff to
establish the fact that the place of fishing is
within the Port limits and that he has been
permitted to put the stakes for fishing.
17. The Trial Court has further recorded a finding
that, the plaintiff has not placed any receipts for having
paid any fees for the issuance of licence. Further, that the
plaintiff has not examined any witness for having acted
upon the terms and conditions of the license produced at
Ex.P.3. Hence, the Trial Court has recorded a finding that,
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in the absence of material documents it cannot be believed
that the plaintiff has been permitted under the licence at
Ex.P.3 to carry out fishing at the particular place as
averred in the plaint.
18. Further, the Trial Court has noticed Section 67
of the Act which specifically stipulates that the public
roads, streets, rivers, lakes, etc., belongs to the
Government. Hence, the Trial Court upheld the contention
of the defendants that the River belongs to the
Government and unless the plaintiff demonstrates that, he
has a right to use the said River for the purpose of fishing,
the relief sought for by the plaintiff cannot be granted.
19. The First Appellate Court while re-appreciating
the factual aspects of the matter with regard to the license
at Ex.P.3 has recorded the following findings:
i) The original licence goes to show that the same is
renewed from time to time every year;
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ii) The licence goes to show that the permission is
accorded to the plaintiff to put up stakes for
fishing in the 'Kesarmane' River near Jantradi i.e.,
Basu Gajani for a period of 01.08.1990 to
30.09.1992 putting 5 conditions;
iii) The Trial Court wrongly came to the conclusion
that, it is not clear under what Rule or provision
the license is being issued. The said question does
not arises since the Port Officer, Honnavar who is
a Public Officer has issued a licence to put up the
stakes for fishing since 1990 and the same is
renewed from time to time;
iv) The reasons given by the Trial Court that the Port
Officer has not been examined to establish the
genuineness of the issuance of the license is not
correct since it is a public document issued by the
Port Officer, Honnavar. Even the location is
mentioned in the sketch (Ex.P.2) which is issued
by the Port Officer;
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v) Ex.P.2 and Ex.P.3 are the public documents and
there is no possibility of creating any of these
documents.
20. The First Appellate Court has noticed the
testimony of PW.1, wherein he has stated in his cross-
examination that on both sides of 'Kesarmane' bunds are
constructed by the Government, wherein Gajani lands are
owned by private persons and surrounding the said Gajani
lands bunds are constructed by the Irrigation Department.
It is further deposed that for watching the said bunds and
Gajani lands and for operating the gate, watchmen are not
appointed.
21. The First Appellate Court further notices the
testimony of DW.1, wherein he admitted that to catch fish
at Aghanashini River, a licence was issued by the
Government through Port Authority and that the
defendants have not obtained any licence for catching fish.
Further, it has been noticed by the First Appellate Court
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that, for the permission obtained by the plaintiff, DW.1 is
stated to have filed objections.
22. The First Appellate Court has noticed that the
DW.2 and DW.3 who were examined in support of the case
of the defendant are said to be the owners of Gajani lands
near Aghanashini River. However, the First Appellate Court
examining their testimony, has held that they are not
helpful to the case of the defendant.
23. The First Appellate Court noticing the fact that
the license has been issued by the Port Officer and further
noticing the defense taken by the defendant denying the
case of the plaintiff, as also the circumstances about the
obstruction and having regard to the fact that the Police
complaint has been filed and criminal proceedings have
been initiated between the parties, recorded a finding that
the judgment and decree passed by the Tribunal is
erroneous. Hence, the First Appellate Court allowed the
appeal, set aside the judgment and decree of the Trial
Court and decreed the suit.
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24. It is forthcoming from the aforementioned that
the basis of the claim of the plaintiff is the licence issued
by the Port Officer, Honnavr (Ex.P.3) and the sketch
(Ex.P2) that is attested by the Port Officer, Honnavar. It is
the case of the plaintiff that he has been permitted to put
up stakes for fishing at the 'Kesarmane' River near
Jantradi and that the permit was valid for a period of one
year from 01.08.1990 to 30.08.1991. It is further
forthcoming from Ex.P.3 that the same has been
periodically renewed up to 30.09.2003. It is necessary to
note that the said license is not a permanent one and it is
subject to periodic renewal by the Port authorities.
Further, although the place of the river near Jantradi is
mentioned, the words "Basu Gajani" has been written by
hand, and there is no endorsement or attestation by the
Port Officer, Honnavar for the said insertion. Further, the
sketch (Ex.P.2) has been attested by the Port Officer,
Honnavar. However, the exact location where the plaintiff
has been permitted to put up stakes for fishing is not
specifically set out in the said sketch.
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25. The basis of the claim of the plaintiff is the
permission granted by the Port Officer, Honnavar. As has
been rightly noticed by the Trial Court, neither the issuing
authority of Ex.P.3 i.e., the Port Officer, Honnavar been
arrayed as a party to the suit, nor has any officer from the
Port Office been examined by the plaintiff in support of
Ex.P.2 and Ex.P.3. The First Appellate Court has recorded
a finding that Ex.P.2 and Ex.P.3 have been proved on the
ground that they are the public documents. However,
merely on the said ground, Ex.P.2 and Ex.P.3 are not
liable to be accepted. In view of the fact that the various
factual aspects regarding Ex.P.2 and Ex.P.3 were required
to be proved by the plaintiff, more particularly with regard
to the exact location, where the plaintiff is permitted to
carry out the fishing activities, as also the period for which
he has been permitted to carry out the same, it was
imperative for the plaintiff to have examined the official
who issued Ex.P.2 & Ex.P.3 and/ or array the concerned
statutory authority as a party to the suit.
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26. It is further relevant to note that the
endorsement Ex.P.3 is only up to 30.09.2003. Hence, as
on date, as also as on the date of filing of the first appeal,
as well as on the date when RA No.223/2006 was decided
i.e., on 25.06.2007, there is no material on record to
indicate that the plaintiff was permitted by the Port
Officer, Honnavar to put up stakes for fishing. The non-
examination of the official from the Port Office, Honnavar
or the arraying of the authority which issued ExP.3, which
permitted the plaintiff to put up stakes for fishing as a
party to the suit is fatal to the case of the plaintiff.
27. Another reason why the decree as sought for by
the plaintiff ought not to be granted is due to the fact that
the plaintiff sought for a permanent injunction to restrain
the defendants from interfering with the activities of the
plaintiffs in the suit property. The basis of injunction is the
permission accorded by the Port Officer, Honnavar. The
said permission itself being granted annually and being
liable to be renewed periodically, the question of granting
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a permanent injunction as sought for by the plaintiff does
not arise.
28. Merely because, the defendants are allegedly
interfering with the activities of the plaintiff without the
plaintiff establishing his right vis-à-vis the relief of
injunction that he has sought for, the question of granting
the same does not arise.
29. Having regard to the aforementioned, the
plaintiff has not adequately proved, Ex.P.3. The First
Appellate Court erred in decreeing the suit on the basis of
Ex.P.3. Further, in view of the admitted position as
contemplated under Section 67 of the Act, that all public
waterways etc, are the property of the Government, it was
incumbent on the plaintiff to either array the authority
which granted him the permission as a party to the suit or
examine the concerned statutory authority. The plaintiff
having failed to do the same, the relief sought for by the
plaintiff is not liable to be granted. Hence, the substantial
question of law Nos.1 and 2 are answered in the negative.
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30. Hence, the following:
ORDER
i) The above appeal is allowed.
ii) The judgment and decree dated
25.06.2007 passed in RA No.233/2006 by
the Court of Civil Judge (Senior Division),
Kumta, is set aside.
iii) The judgment and decree dated
25.07.2005 passed in OS No.66/1997 by
the Principal Civil Judge (Junior Division),
Kumta, is affirmed.
iv) Parties to bear the irrespective costs.
Sd/-
JUDGE
PJ
CT:GSM
