Karnataka High Court
Sri Ramachandrappa vs The Chief Secretary on 21 November, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 1309 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1309 OF 2013 (INJ)
BETWEEN:
SRI RAMACHANDRAPPA
S/O PUTTANAIKA,
AGED ABOUT 53 YEARS,
R/AT MANJARIKOPPA VILLAGE,
SIRIGERE POST, HARNAHALLI HOBLI,
SHIVAMOGGA TALUK,
SHIVAMOGGA DISTRICT - 573 122.
...APPELLANTS
[BY SRI NAGARAJAPPA A, ADVOCATE]
AND:
1. THE CHIEF SECRETARY,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA, DR.AMBEDKAR VEEDHI,
BANGALORE PIN:560 001.
2. THE ASSISTANT CONSERVATOR
OF FOREST (ACF), WILD LIFE RANGE,
SHIVAMOGGA SUB DIVISION,
Digitally signed SHIVAMOGGA TALUK,
by ANUSHA V SHIVAMOGGA DISTRICT - 577 201.
Location: High
Court Of 3. THE RANGE FOREST OFFICER,
Karnataka SHANKAR RANGE, OFFICE AT
ARUPINAKATTE VILLAGE,
SHIVAMOGGA TALUK,
SHIVAMOGGA DISTRTICT - 577 231.
...RESPONDENTS
[BY SRI MILIND DANGE, AGA]
THIS RSA FILED U/S. 100 R/W ORDER 42 RULE 1 OF CPC.,
AGAINST THE JUDGMENT & DECREE DTD 17.8.2012 PASSED IN
R.A.NO.20/2012 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE
& CJM, SHIVAMOGGA, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DTD 29.10.2011 PASSED IN
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RSA No. 1309 of 2013
OS.NO.482/2010 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC.,
SHIVAMOGGA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.11.2024, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging judgment and decree dated 17.08.2012
passed in R.A.no.20/2012 by I Additional Senior Civil Judge and
CJM, Shivamogga, this appeal is filed.
2. Brief facts as stated are that, appellant was plaintiff
in O.S.no.482/2010, filed for relief of permanent injunction
restraining defendants - State and Forest Authorities from
interfering with plaintiff's peaceful possession and enjoyment of
land bearing Sy.no.28 of Manjarikoppa village, Harnahalli Hobli,
Shivamogga, measuring 04 Acres described in plaint schedule
('suit property' for short). In plaint, it was stated that plaintiff
was in possession and enjoyment of suit property from year
1980. It was stated plaintiff and his family members were
displaced ryots after submergence of their lands under
Linganamakki Reservoir, they shifted to Manjarikoppa and
concerned authorities directed them to cultivate suit property
to eke out livelihood. It was stated, Government had preserved
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and reserved lands in Manjarikoppa, Maleshankara State
Forest, Maleshankara, Doddamathli, Adinakotige, Koodi village
etc. It was stated, plaintiff and his wife Smt.Janakamma had
taken private loan, invested more than 2 to 3 Lakhs of rupees,
made improvements converted fallow land into rain fed wet
land for paddy cultivation. It was stated, without any right or
interest in suit property, officials of defendant no.3 came near
suit property and asked plaintiff to remove fence to allow them
to dig pits and plant forest trees thereby interfering with
plaintiff's peaceful possession over suit property. Plaintiff's
resisted same with help of villagers. As there was threat of
interference, giving rise to cause of action for filing suit.
3. On appearance, defendant no.3 filed written
statement denying plaint averments in toto. It was stated that
land bearing Sy.no.28 of Manjarikoppa belonged to Shankar
State Forest and Shettyhalli Wildlife Sanctuary and a 'reserved
forest'. It was stated that revenue authorities had no right or
title over same to grant any portion of land to plaintiff or
anybody, as it would be in violation of Section 24 of Karnataka
Forest Act, 1963 and Sections 2 and 3 of Forest (Conservation)
Act, 1980 and Sections 2, 15, 26, 27, 29, 34 (A) and 51 of
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Wildlife Protection Act, 1972. It was stated that suit property
was forest land and agricultural activities could not be
permitted. It was further contended suit was not maintainable
for non-compliance with Section 80 of Code of Civil Procedure,
1908 ('CPC'). Defendants no.1 and 2 filed memo and adopted
same as their written statement.
4. Based on pleadings, trial Court framed following
issues:
1. Whether the plaintiff proves that he is in
actual possession of suit schedule property
within its given boundary extent?
2. Whether the plaintiff proves the alleged
interference said to be caused by the
defendants?
3. Whether the plaintiff is entitled for the relief
of permanent injunction?
4. What order or decree?
5. Thereafter, plaintiff examined himself and two
others as PWs.1 to 3 and got marked Exs.P1 to P11. For
defendants, one witness was examined as DW.1 and Exs.D1 to
D3 were got marked.
6. On consideration, trial Court answered issues no.1
to 3 in affirmative and issue no.4 by decreeing suit.
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7. Aggrieved thereby, defendants filed R.A.no.20/2012
on various grounds, based on which, first appellate Court
framed following points for consideration:
1. Whether the findings of the trial Court that
the plaintiff has established his possession
over the suit schedule property is
sustainable?
2. Whether impugned judgment and decree
calls for the interference?
3. What order?
8. On consideration, first appellate Court answered
point no.1 in negative, point no.2 in affirmative and point no.3
by allowing appeal, setting aside judgment and decree passed
by trial Court and dismissing plaintiff's suit. Aggrieved, this
appeal was filed.
9. Sri A. Nagarajappa, learned counsel for plaintiff
submitted that this was plaintiff's appeal against divergent
findings in suit for bare injunction. It was submitted, while trial
Court decreed suit after detailed examination of entire material
on record, first appellate Court reversed it on ground that
plaintiff failed to establish extent of suit property and his
possession over it. It was submitted, said finding was contrary
to deposition of PWs.2 and 3 about plaintiff being in possession
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and Ex.P.5 - Saguvali Chit, whereunder suit property was
granted to plaintiff. It was contended for failure of revenue
officials to carry out phodi, plaintiff could not be made to suffer.
It was contended reference to case law without properly
appreciating facts was also erroneous. Hence, following
substantial question of law would arise for consideration:
"Whether finding of first appellate Court that
plaintiff failed to establish his possession
over suit property as on date of suit was
ignoring Ex.P5 - Saguvali Chit and Exs.P1
and P2 - Record of Rights?"
10. On other hand, Sri Milind Dange, learned Additional
Government Advocate for defendants - State opposed appeal.
It was submitted, judgment and decree passed by trial Court
was erroneous and without proper basis, especially as land in
question was reserved forest land and revenue authorities
could not validly grant same. It was submitted, first appellate
Court had on proper re-appreciation of all available material,
rightly reversed judgment and decree and same did not call for
interference. In support of his submissions, he relied on
decision of Hon'ble Supreme Court in State of Karnataka and
Ors. v. I.S. Nirvane Gowda and Ors., reported in 2007 (15)
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SCC 744. In view of above, it was submitted no substantial
question of law arose for consideration.
11. Heard learned counsel and perused records.
12. From above, it is seen plaintiff is in appeal
challenging reversal of trial Court decree by appellate Court and
thereby dismissing his suit for permanent injunction.
13. From pleadings of parties as recited by both Courts,
it is not in dispute that suit property belonged to defendants.
While plaintiff and his family being displaced due to
submergence of their lands for Linganamakki Reservoir had
migrated to Manjarikoppa village, wherein concerned
authorities had permitted them to cultivate lands for livelihood
and therefore, plaintiff was cultivating suit property by making
improvements, defendants deny same by asserting suit
property was part of Sy.no.28 and a notified reserved forest
land namely Shankar Forest. They stated that plaintiff was
trying to encroach on forest land and use same for cultivation
which was in violation of provisions of Forest Laws.
14. Admittedly, relief claimed in suit was for permanent
injunction. Therefore, plaintiff has to establish lawful
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possession, illegal interference by defendants and irreparable
loss and injury. To establish same, plaintiff relied on Record of
Rights ('RoR') marked as Exs.P1 and P2, mutation entries
('ME') marked as Exs.P3 and P4, saguvali chit marked as
Ex.P5, order passed by Assistant Commissioner marked as
Ex.P6, land revenue receipt marked as Ex.P7 and RoR/MEs
marked as Exs.P8 to P11, and deposition of plaintiff and
witnesses as PWs.1 to 3. Defendants produced certified copy of
Gazette Notification dated 19.06.1895, ME and RoRs as Exs.D1
to D3, and addition of forest official as DW.1.
15. While passing judgment and decree, trial Court
noted rival pleadings, oral and documentary evidence. It
observed, there was no dispute that suit property was forest
land as per Exs.D1 to D3. It observed, merely on that count, it
could not be established that same did not vest with revenue
authorities and they did not have authority to grant it to
plaintiff or others for cultivation. According to it, since it was
suit for injunction, only possession over suit property would be
material consideration. On perusal of Ex.D3, it noted name of
Shankar State Forest was shown for years 2001 to 2003, same
was not continued as on date of suit. It observed, Saguvali
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Chit, RoRs and MEs produced by plaintiff showed land was
granted to him and his wife on 08.08.2003, their names
mutated in revenue records since then and they were
cultivating it and paying land revenue.
16. It observed, in view of above material admission
elicited from PW.1 that no order converting suit property for
agricultural purpose and about lack of sub-division as well as
Saguvali Chit not disclosing boundaries would not take away
weight of evidence in favour of plaintiff. It noted DW.1 in cross-
examination had pleaded ignorance about contents of plaintiff's
documents, stated that defendants had not challenged order of
grant of land by Government to agriculturists. Based on same,
it concluded defendants had admitted plaintiff being in actual
possession of suit property. On strength of said finding, it
decreed suit.
17. While passing impugned judgment and decree, first
appellate Court noted that column no.3 of Ex.P5 - Saguvali Chit
mentioned "boundaries as per sketch", but, no sketch was
produced. It also observed that there was no phodi, even
though total extent of Sy.no.28 of Manjarikoppa village was
larger than granted. On other hand, Ex.D1 - Gazette
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Notification declared Shankar State Forest, Sakrebylu State
Forest, Sakrebylu Plantation, Kalahalli Plantation, Shikaripura,
Siddihalli Plantation of Soraba Taluk as State Forest under Rule
1 of Forest Rule. It noted, Ex.D2 - ME showed mutation in
khata of Sy.nos.27 to 34 of Manjarikoppa as 'State Forest' and
Ex.D3 showed entire extent of 630.39 Acres including 16.30
Acres of kharab in Sy.no.28 of Manjarikoppa was 'Shankar
State Forest'. It noted, Ex.P6 order passed by Asst.
Commissioner in appeal challenging ME at Ex.D2 was allowed
and Tahsildar was directed to hold fresh enquiry before making
entries. Therefore, in absence of specific order restoring earlier
entries, plaintiff could not rely on Exs.P8 and P10. Thereafter, it
referred to admission elicited from PWs.2 and 3 that they were
not immediate neighboring land owners of plaintiff and were
unaware about total extent of Sy.no.28 or whether there was
phodi.
18. It noted no document was produced to substantiate
that extent of 15 Acres in Sy.no.28 of Manjarikoppa village was
reserved for displaced ryots of Sharavathi project. It concluded
forest land cannot be granted without prior approval of Central
Government as per Rule 41 of Karnataka Forest Rules, 1969,
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while 'forest land' defined in Section 2 of Forest (Conservation)
Act, 1980, included any area recorded as forest in Government
record and ratio laid down in DK Mohammed Haji v. State of
Karnataka, reported in 2002 (4) KLJ 26 and IS Nirvane
Gowda's case (supra), to conclude that plaintiff failed to
establish grant in compliance with forest laws. It also noted
absence of boundaries in grant order to conclude that without
possibility of identification with specific boundaries, injunction
cannot be granted. It also held, trial Court fell in error being
carried away by entries in revenue records for few years
ignoring ratio laid down in R. Hanumaiah and Anr. v.
Secretary to Govt. of Karnataka, Revenue Department
and Ors., reported in 2011 (1) KLJ 6, that unexplained stray
or sporadic entries for a year or few years will not be sufficient
and should be ignored to conclude that judgment and decree
passed by trial Court was without sufficient satisfactory or
convincing evidence. On said findings, it allowed appeal.
19. From above, it is seen there is no dispute about suit
property being forest land. But, plaintiff claims it was granted
to him by government by issuing Ex.P.5 - Saguvali chit. While
defendants asserted that as per Ex.D.1 - Gazette notification
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dated 19.06.1985 and ME at Ex.D.2, Sy.no.28 of Manjarikoppa
was part of lands notified as Shankar State Forest. Therefore,
main question that would arise for consideration would be,
whether revenue authorities would be competent to grant land
included in State Reserve Forest. Said question was precisely in
consideration before Hon'ble Supreme Court in IS Nirvane
Gowda's case (supra), wherein it is empathetically held that
revenue authorities were not competent to deal with property
which formed part of reserved forest.
20. As noted above, while passing impugned judgment
and decree, first appellate Court has applied said ratio to facts
of present case by referring to specific provisions of Forest
Laws. Though, plaintiff sought to establish possession by
relying on Exs.P.8 and P.10 - RoRs, first appellate Court
observed Ex.P.6 -order passed by Assistant Commissioner had
set aside mutation and remitted matter back to Tahsildar for
fresh enquiry. Admittedly, there is no material placed on record
to indicate any orders being passed restoring entries in favour
of plaintiff.
21. It was in this context, first appellate Court
observed plaintiff could not rely on Exs.P8 and P10 to
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substantiate possession. In addition, it also observed that
Ex.P.5 - Saguvali Chit merely mentioned extent of land granted
without mentioning boundaries. Even if same were to have
been subsequently determined after survey for fixing
boundaries and drawing sketch, plaintiff did not produce any
such sketch. It was in this context, first appellate Court held
plaintiff had failed to establish boundaries of suit property. Said
findings are given after due appreciation and with reference to
material on record and cannot be termed as perverse. No
substantial question of law arises for consideration. Hence,
appeal is dismissed.
Sd/-
(RAVI V HOSMANI)
JUDGE
PSG,AV,GRD
