Karnataka High Court
Shri Vithoba Govind Gaonkar vs The Ddeputy Conservator Of Forests on 26 July, 2024
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RSA No. 5016 of 2008
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5016 OF 2008
BETWEEN:
SHRI VITHOBA GOVIND GAONKAR,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O. KARAMBAL VILLAGE,
POST: TINNEGHAT,TQ: JOIDA,
DECEASED BY HIS LR'S.
1(A) SMT. PANDARI KOM. ARJUN GAONKAR,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O. HOLDA VILLAGE, TQ: KHANAPUR.
1(B) SHRI BALKRISHNA VITHOBA GAONKAR,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. KARAMBAL VILLAGE, TQ: JOIDA.
1(C) SMT. NAGULI KOM. SRIKANT GURAV,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O. DONGARGAON VILLAGE,
TQ: KHANAPUR.
Digitally 1(D) SMT. ANJALI KOM. SRIKANT GAVADE,
signed by AGE: 30 YEARS, OCC: HOUSEHOLD,
BHARATHI S R/O. BAMANAGI VILLAGE, TQ: JOIDA.
Location:
HIGH 1(E) SHRI GOVIND VITHOBA GAONKAR,
COURT OF AGE: 29 YEARS, OCC: AGRICULTURE,
KARNATAKA R/O. KARAMBAL VILLAGE, TQ: HALIYAL.
...APPELLANTS
(BY SMT. SURABHI KULKARNI, ADV. FOR
SRI. PRAKASH B. ANGADI, SRI. CHETAN MUNNOLI &
SRI. LOKESH HEGDE, ADVOCATES FOR A1(B) & A1(E) (NOC))
AND:
1. THE DEPUTY CONSERVATOR OF FORESTS,
HALIYAL DIVISION, HALIYAL,
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RSA No. 5016 of 2008
TQ: HALIYAL,
DIST: UTTAR KANNADA.
2. THE ASSISTANT CONSERVATOR OF FORESTS,
ALNAVAR SUB-DIVISION, GANESHGUDI,
POST: GANESHGUDI, TQ: JOIDA.
3. THE RANGE FOREST OFFICER,
TINEGHAT, TQ: JOIDA.
4. THE SECTION FORESTER,
KARAMBAL, POST: ANMOD, TQ: JOIDA.
5. THE GOVERNMENT OF KARNATAKA,
REPRESENTED BY THE
DEPUTY COMMISSIONER,
UTTARA KANNADA, KARWAR.
...RESPONDENTS
(BY SRI. ABHISHEK MALIPATIL, HCGP FOR R1-R5)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CIVIL PROCUDE CODE PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DT. 31-5-2008 PASSED BY THE CIVIL
JUDGE, SENIOR DIVISION, YALLAPUR IN R.A.NO.36/2007 AND
CONFIRM THE JUDGMENT AND DECREE DT.20.03.2007 IN
O.S.NO.50/2004 PASSED BY THE CIVIL JUDGE, JUNIOR DIVISION,
DANDELI.
THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100
of the Code of Civil Procedure, 19081 by the plaintiff
challenging the judgment and decree dated 31.05.2008
passed in R.A.No.36/2007 by the Senior Civil Judge,
Hereinafter referred to as the 'CPC'
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Yellapur2, whereunder the decree for injunction granted by
the Trial Court in the suit filed by the plaintiff has been set
aside by the First Appellate Court and suit in
O.S.No.50/2004 filed by the plaintiff has been dismissed.
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 he is in
possession, cultivation and enjoyment of agricultural land
to the extent of 3 acres in Sy.No.6-A1 situated in
Karambal Forest, Karambal village, Joida3 for more than 4
decades and that he constructed a stone compound wall
in the said land. That he has a cattle shed and has grown
different fruits. That the request of the plaintiff for
regularization of land is pending consideration in
proceedings ACF.Encroachment.166/2003-04 before
defendant No.2 and that no orders have been passed.
That defendant-authorities attempted to trespass the
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as 'suit property'
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property of the plaintiff. Hence, the plaintiff has filed the
suit for permanent injunction to restrain the defendants
from interfering with the peaceful possession of the
plaintiff over the suit property.
4. The defendants entered appearance before the
Trial Court and defendant No.3 filed a written statement
which was adopted by the other defendants No.1, 2 and
4. It is the contention of the defendants that the suit land
is a forest land and the plaintiff has encroached the same.
That in view of the Government decision for regularization
of encroachment, a committee was constituted in the year
1978 and no application has been moved by the plaintiff
seeking regularization of the encroached land. That the
proceedings have been instituted by the Assistant
Commissioner, Forest Alnavar, Sub-division and hence,
the plaintiff has filed the suit. That in the year 2004, the
Government of Karnataka has constituted a Taluka Level
Encroachment Regularization Committee for Joida Taluk
and the plaintiff was required to approach the same. The
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plaintiff being an encroacher cannot maintain the suit.
Hence, the defendants sought for dismissal of the suit.
5. Consequent to the pleadings of the parties, the
Trial Court framed the following issues:
"ISSUES
1. Whether the plaintiff proves that he is in
Possession of the suit property as on the date
of the suit?
2. Whether the alleged interference by the
defendants No.1 to 4 is true?
3. Whether the plaintiff is entitled for decree as
prayed for?
4. What order or decree?"
6. The Trial Court vide judgment and decree dated
20.03.2007 decreed the suit. Being aggrieved, the
defendants preferred R.A.No.36/2007. The plaintiff
appeared before the First Appellate Court and contested
the same. The First Appellate Court framed the following
points for consideration:
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"1. Point No.1: Whether defendats/Appellants have
followed due procedure of law by initiating the
proceedings after issuing prior notice to the
plaintiff/respondent according to natural justice?
Point No.2: Whether the judgement and decree of
the lower court calls for interference with by this
court?"
Point No.3: To What Order?"
7. The First Appellate Court by its judgment dated
31.05.2008 has recorded a finding that the plaintiff has
not sought for any declaration to declare him as the
owner of the suit property by way of adverse possession.
Further, the First Appellate Court held that there are no
sufficient material on the side of the plaintiff to hold that
he is in possession of the suit property. That the
Government is a true owner and that they have initiated
proceedings under Section 64 of the Karnataka Forest
Act, 1963.4 Hence, the First Appellate Court has allowed
the appeal, set aside the judgment and decree passed by
Hereinafter referred to as 'Act of 1963'
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the Trial Court and dismissed the suit. Being aggrieved,
the plaintiff has filed the above appeal.
8. This Court by order dated 29.08.2008 admitted
the above appeal and framed the following substantial
question of law:
"Whether the First Appellate Court was justified in
reversing the finding of the Trial Court on possession
of the suit property by the appellant and thereby
reversing the decree of the Trial Court?"
9. Learned counsel for the appellant Smt.Surabhi
Kulkarni vehemently contended that the plaintiff
admittedly being in possession of the suit property and
having filed various applications for regularization and
grant of the property in his favour, no orders have been
passed on the application/request made by the plaintiff
and hence till such orders are passed, the plaintiff is
entitled to an order of injunction. Hence, she seeks for
setting aside of the order of the First Appellate Court and
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confirming the judgment and decree passed by the Trial
Court.
10. Per contra, learned Additional Advocate
General, Sri.Keshava Reddy along with Sri.Abhishek
Malipatil learned High Court Government Pleader
representing the respondents submits that the plaintiff is
an encroacher of forest land and the authorities have
initiated proceedings under Section 64A of the Act of
1963. That the plaintiff has been notified of the said
proceedings and he has replied to the said notices by
contending that due to the pendency of the present
litigation, the said enquiry is required to be dropped. It is
further contended that despite various notices, the
plaintiff is repeatedly appearing in the proceedings and
taking time on the ground of pendency of the present
appeal before this Court.
11. It is further submitted that the earlier
proceedings under Section 64A of the Act of 1963 having
been initiated by the Office of the Range Forest Officer,
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Tinaighat, has subsequently been transferred and
presently the proceedings under Section 64A of the Act of
1963 are being prosecuted by the Office of the Assistant
Conservator of Forests, Wildlife Sub-division, Dandeli.
That the plaintiff vide notice dated 22.07.2024 has been
notified of the same and that the next date of proceedings
and the said enquiry is on 02.08.2024. It is further
submitted that the First Appellate Court has rightly
dismissed the appeal and the same is not required to be
interfered with by this Court in the present second appeal.
12. The submissions of both the learned counsels
have been considered and the oral and documentary
evidence on record including records of the Trial Court
and First Appellate Court have been perused.
13. It is not in dispute that the proceedings under
Section 64A of the Act of 1963 have been initiated by the
defendant-authorities against the plaintiff. Section 64A of
the Act of 1963 reads as follows:
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"64-A. Penalty for unauthorisedly taking
possession of land constituted as reserved forest
[district forest, village forest, protected forest and
any other land under the control of the Forest
Department].-(1) Any person unauthorisedly
occupying any land in reserved forest, "[district
forest, village forest, protected forest and any
other land under the control of the Forest
Department) may, without prejudice to any other
action that may be taken against him under any
other provision of this Act or any other law for the
time being in force, be summarily evicted, by a
Forest Officer not below the rank of an Assistant
Conservator of Forests and any crop including
trees raised in the land and any building or other
construction erected thereon shall, if not removed
by him within such time as the Forest Officer may
fix, be liable to forfeiture:
Provided that before evicting a person under this
sub-section he shall be given a reasonable
opportunity of being heard.
(2) Any property forfeited under sub-section (1)
shall be disposed of in such manner as the forest
Officer may direct and the cost of removal of any
crop, building or other work and of all works
necessary to restore the land to its original
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condition shall be recoverable from the person
evicted in the manner provided in Section 109.
(3) Any person aggrieved by an order of the Forest
Officer under sub-section (1) may, within such
period and in such manner as may be prescribed,
appeal against such order to the State
Government or to such officer as may be
authorised by the State Government in this behalf
and the order of the Forest Officer shall, subject to
the decision in such appeal, be final."
(emphasis supplied)
14. It is clear from a reading of Section 64-A of the
Act of 1963 that a complete procedure is specifically
stipulated under a specific statute for eviction of persons
found to be in un-authorized occupation of forest land. It
is further relevant to note that Section 64-A(3) provides
an appeal remedy also. The defendant-authorities, having
noticed that the plaintiff is in possession of the forest
land, on the ground that the same is an encroachment,
has initiated proceedings for eviction of the plaintiff.
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15. The contention of the plaintiff that various
representations/applications have been made for
granting/regularization of the suit property which he is in
possession of has not been considered and till such time,
the possession of the plaintiff is required to be protected
is not required to be favourably considered having regard
to the fact that admittedly the defendant-authorities have
initiated proceedings in accordance with law.
16. The contention of the plaintiff that he is entitled
to regularization is required to be made in the said
proceedings, since consideration of the same is depended
on various factual aspects as well as various policies of
the State. Proceedings having been initiated against the
plaintiff in accordance with law, the plaintiff will not be
entitled to an order of injunction as is sought for in the
plaint.
17. In view of the aforementioned, the First
Appellate Court was justified in setting aside the decree
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passed by the Trial Court. Hence, the substantial question
of law framed by this Court is answered in negative.
18. It shall be open to the plaintiff to participate in
the proceedings initiated by the defendants under Section
64A of the Act of 1963 and urge all the defences, as also
to pursue such other remedies as available to the plaintiff
in accordance with law.
19. Hence, the following:
ORDER
i. The above appeal is dismissed;
ii. The judgment and decree dated 31.05.2008
passed in R.A.No.36/2007 by the Senior Civil
Judge, Yellapur is confirmed.
SD/-
JUDGE
SH
