Forest Range Officer & Ors. vs Mullu
2023 Latest Caselaw 14543 MP

                                            1

        IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                                       BEFORE

              HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH

                            ON THE 05th OF SEPTEMBER, 2023


                             FIRST APPEAL NO. 705 OF 2000

Between:-
1. FOREST RANGE OFFICER, NORTH FOREST
   RANGE UKWA TAHSIL BAIHAR,
   DISTRICT - BALAGHAT (M.P.)

2. DIVISIONAL FOREST OFFICER, NORTH
   TERRITORIAL, BALAGHAT, DISTRICT-
   BALAGHAT (M.P.)

3. THE COLLECTOR, BALAGHAT, DISTRICT-
   BALAGHAT (M.P.)
                                                               ....APPELLANTS
(BY SHRI ASHOK SINHA - GOVERNMENT ADVOCATE

AND

MULLU S/O SHRI KASIYA GAOR, AGED
ABOUT 42 YRS, R/O PIND KE PAR, TAHSIL
BAIHAR, DISTRICT - BALAGHAT (M.P.)
                                                               ....RESPONDENT

(NONE FOR THE RESPONDENTS)
.........................................................................................................................

Reserved On             :      14.08.2023

Pronounced On           :      05.09.2023

.........................................................................................................................

        This appeal coming on for hearing this day, Justice Avanindra Kumar Singh

passed the following:

                                        ORDER

This appeal under Section 96 of Code of Civil Procedure has been filed by the

appellant/ defendant against the impugned judgment and decree dated 20.04.1999 passed

in Civil Suit No.38-A/98 by learned First Additional District Judge, Balaghat.

2. In short, the matter before the trial Court was that the plaintiff-Mullu filed a suit against

the defendants on the ground that vacant possession of Khasra No.34 area 10.79 acres

situated in Gram Pind-Ke-Par, Patwari Halka No.18 Tahsil Baihar, District-Balaghat

should be returned to him along with loss of the agriculture produce income for the last 11

years which comes to about Rs.30,250/-.

3. In the civil suit filed on 05.07.1989, this fact was not disputed that the land belonged to

the plaintiff and defendant No.2 had taken its possession. The case of the plaintiff before

the trial Court was that he was the owner and possesser of the suit property/land, all

around the land there was government forest. The defendant No.2 stopped the plaintiff

from working on his land for the agriculture purpose and acquired the land and this was

done about 11 years ago. Out of the disputed land on six acre, the plaintiff used to take

agriculture produce and on the rest of land, there were trees of 'Satkatha' he was

dispossessed from his suit land and, therefore, all the land was naturally converted into

forest. No compensation was awarded/paid to him therefore, on the basis of rough

estimate/ calculation of Rs.5,500/- per year loss of agriculture produced comes to

Rs.60,500/- and deducting the expenditure on cultivation, it comes to Rs.30,250/-. The

plaintiff further averred in the plaint that he had sent notices to the defendant but his

possession was not returned therefore, the suit for repossession of land and payment of

monetary loss.

4. The reply of the defendants was that they had acquired and taken possession of the suit

land of the plaintiff who was the owner and possessor of the land in the forest

"Vyawasthapan Prakaran". On the basis of Memo No.490 dated 08.04.1988, the disputed

land which was not cultivable. The plaintiff had neglected the said land therefore, the

Forest Department acquired the land and in return, Khasra No.49, 10.79 acre land was

allotted to him but this land was not mutated in the name of the plaintiff because plaintiff

did not request for compensation or change of land. When the plaintiff was given a notice

regarding acquisition then on 06.06.1989 then, the plaintiff had requested for ' Panch

Nirnaya'. If the plaintiff wanted compensation then he should have applied under the

Land Acquisition Act. Acquired land was declared as a 'Protected Forest' land.

5. The learned trial Court framed the following issues and gave the following findings :

¼1½ D;k] oknh dh fookfnr Hkwfe izfroknhx.k ds fgr esa 'kklu }kjk vf/kx`ghr dh xbZ

gS \ izekf.kr ughaA

¼2½ D;k] izfroknhx.k us fookfnr Hkwfe ij voS/k dCtk dj fy;k gS \ gkWA

¼3½ D;k] oknh dks mDr csn[kyh ds dkj.k fiNys 11 o"kksZa ls 30250@& :i;s dk

uqdlku mBkuk iM+k gS \ gkWA

¼4½ D;k oknh fookfnr Hkwfe dk dCtk ikus dk vf/kdkjh gS \ gkWA

¼5½ D;k] oknh us fookn dk gy djus ds fy;s iapfu.kZ; djkus gsrq izfroknhx.k dks

vkosnu fn;k ;fn gka rks izHkko \ gkW] dksbZ izHkko ughaA

¼6½ D;k] oknh dk okn vifjiDo gS vkSj izpyu ;ksX; ugha gS \ izekf.kr ughaA

¼7½ lgk;rk ,oa O;; \ okn LohdkjA

6. After recording the evidence of the plaintiff who deposed as per his plaint, the learned

trial Court where no evidence was led by the defendants in the Court decided the issues in

favour of the plaintiff, the plaintiff during deposition in Court accepted that he had given

an application for 'Panch Nirdaya' and he was assured that other land given to him in

exchange but he was not allotted another land.

7. Against the judgment before this Court on the ground that the Court below erred in

holding that the plaintiff was entitled to get back the possession of suit property. The trial

Court failed to take cognizance of the Notification No.139-876-10, Bhopal dated

04.01.1966 published in MP Gazette on 22.04.1966 that an area of 2401.60 acres of

village Pind ke Par, Tahsil Baihar including the suit of the respondent-plaintiff was

declared / decided and notified as 'Protected Forest' under the provisions of Section 4 of

Indian Forest Act, 1927. The trial Court failed to appreciate the provisions of Sections 4 to

16 of Indian Forest Act, 1927. If the plaintiff had any grievance then he should have

moved the authorities as per the above mentioned Forest Act. As the disputed land already

vested in the forest department from the year 1966 itself and possession can be given only

after permission of Central Government. The trial Court also failed to take notice of

Annexure A-1 and A-2 in this regard. Other lands are also declared as reserve forest and

the suit was not maintainable hence, prays for dismissal of the judgment and decree of the

trial Court on merit and as well as on the ground that the trial Court failed to take

cognizance of Section 5 of Forest Act which clearly says that after the issue of

notification under Section 4, no right shall be acquired in over the land comprised in such

notification and all claims, right and compensation would be declared and settled under

the provisions. The plaintiff did not file any objection/claim before the competent

authority i.e. Forest Settlement Officer.

8. No one appeared on behalf of respondent before this Court on the date when final

arguments were heard.

9. The question before this Court is whether the judgment and decree of the trial Court

can be sustained or is liable to be set aside as being in contravention of India Forest Act.

10. Plaintiff-Mullu deposed before the trial Court on 29.01.1999 as per his pleading and

exhibited revenue record Ex.P/1 to P/3, in paragraph 5 of cross-examination, he stated

that he was not allotted any land by the government, the burden to prove pleadings in

written statement was of defendants. In Paragraph 5 of cross-examination, Mullu has

further deposed that if government pays proper compensation then he does not want any

land. The defendants have not produced any documentary evidence or produced any

witness to show that any land in exchange was allotted to plaintiff or any compensation

was paid. Hence, looking to the factual situation, it is proved that defendants took the

possession of plaintiff's suit land without paying any compensation or given land in

exchange hence, the judgment in the trial Court cannot be interfered in substances but

regarding the relief, it is modified to the extent that within two months from the date of

receiving certified copy of this judgment, the defendant government either return the suit

land along with compensation as decreed by the trial Court or pay proper compensation in

lieu of land of the plaintiff.

11. Accordingly, the appeal stands disposed of.

                                                                                 (AVANINDRA KUMAR SINGH)
                                                                                         JUDGE



  Shubh

SHUBHAM         Digitally signed by SHUBHAM THAKKER
                DN: c=IN, o=HIGHT COURT OF MADHYA PRADESH, ou=GOVERMENT,

2.5.4.20=9ae0b4c3f8dbec36692c45b55d89f22c2ad48e7930accbade 871ee3495c5a9d8, postalCode=482001, st=MADHYA PRADESH,

THAKKER serialNumber=086CC2FDA1069ABFC2CE779B66622BD02EEAD5773 A0DCE2947571D5FE6005A56, cn=SHUBHAM THAKKER Date: 2023.09.06 18:17:36 +05'30'