Karnataka High Court
The Deputy Conservator Of Forest vs T K Thammanna Gowda on 28 June, 2010
Equivalent citations: 2010 (4) AIR KAR R 68
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGA:_,OR E_
% DATED THIS THE 28"' DAY OF JUNE, 2o11_o~ I
BEFORE A' AJ
THE HON'BLE MR. JUSTICE A.N. vI:}:NuOORA'LA*:;'O.wO'..A:_% 'V: I I'
REGULAR FIRST APPEAL N'O_.'1s2/2052...',
REGULAR FIRST ARREAI;A:O.18s,I2oO2 f
R.F.'A. No. 152/2002
BETWEEN:
1. The De;3ut§-"'C'i§:j:I1I;er\/;;=Itoi.f
Forest, C.h~ikmag_a%'.sIr [}:x{E's»i.on*," I »
Chikmaga_lur;:._', »
2. Range ForeStVOff§ICer_,"»..,,' _
Chikmagalur"R""ngeI,_ ' -
ChIkm.agaIur.« V
- A I APPELLANTS
(By Sri N . D. "3-Vay'ade'va p=pa," 'H CG P)
~. 5.5 I A. H ..... .. V
i'."i<..1"'h:_éirT.Trn:z§r'Ina Gowda,
._ 1-3,/_'o. "iafe._¥_<a|;'f'e Gowda,
'Major,_ La~:31.d'HO|der,
Rfo. Thorrdavalfi in Vasthare Hobli,
Chikmagalur Taluk.
'A12-R.i"f'éI'nJ'appa,
(Father's name not known),
forester, Chikmagalur.
Q1 . 4 V is.)
3. Revanna,
(Father's raarrie not known),
Forest Guard,
Chikmagaiur.
(By Sri M.Ram Bhat, Adv. for R1;
R2 -- service held sufficient;
R3 is served)
RFA 152/2002 is filed: under"'~S'ectViori'V:"§?»5=..,of an
... REsivoi\ii:'D.Ej'iv.TT:g.__ .
against the judgment and decreedated 20_.1{}-_200:1. passed
in O.S.No.156/1996 on the fiie of 'the-Civil Judge (S'r.Dra.) &
CJM., Chikmagaiur, partiyadecreeiragjthesuit fordeciaration
and injunction. T .
R.F.A. No.188/200; 'V
BETWEEN: it I
T.t<.Thamnianheii':=0vi}iri'aA,fi'.iii'.i . "
S/o. fate K'ai!e:i:GoWfd'a_.
Major,F.Land.Hoi--'dVer,"«t * '
R/o. Thb_ndava!l.i infV.ast.i:1a.r:e'itiobii,
ChickmagaiurTai:.1k';;' _ '
(aygggsri Ram ..ESi'iat, Adv.)
A 1. "-The ffonservator of
A VForests',' Chickmagaiur Division,
C-hidiérnagaiur.
., Rarige: Forest Officer,
Chickmagaiur Range,
"C-hickmagaiur.
. Manjappa,
Father's name not known,
:APPELLANT
Age: Major,
Forester, Chickmagaiur.
4. Revanna,
Age:Major,
Father's name not known,
Occ: Forest Guard,
Chickmagalur.
(By Sri N.D. Jayadevappa, HCGP)
. ,_ :'r,REs!5Ci:\io:E'NiTs'2'2
RFA 188/2002 is reredrionrjer isectemi~,96Qor~rCpc * 2'
against the judgment and decreeidated 20;-1Q.i2'0O1:, passed
in O.S.No.156/1996 on the fileo--f--the. Civii Jud'ge..(S~r,Dn.) 8:
CJM., Chikmagalur, partiy"decr.eei,n,g" thesuit for declaration
and injunction. .
These appeais co;m'ifi'gftQn,:'fovir.,_hearEVn"t; this day, the
Court delivered{the;;fo¥io\i.rin§;:"" "
N T
RFA 188,I2oo2i:-; piaintiff. RFA 152/2002 is by
the ,,d_efen.dants" The defendants 3 & 4, are the
3 in RFA 152/2002 and respondents 3 8:
:'i_8.8/12002. For convenience, the parties wiil be V . refer'r'ed with reference to their rank in the suit. 3 The piaintiff ciaiming titie to the suit iand on thetdbasis of a temporary Saguvaii chit (Ex.P~ ), issued by /' // 5 encroach upon the forest land belonging to the Forest Department. It was further stated that, any attempt for encroachment of forest land amounts to an offence and since the defendants came to know that plairi'ti:.f'f»r.is attempting to encroach upon the forest land,_;v'a*-«crirnlnavlf case was registered against the him. It .t_hat;l without issuing notice required under fiectilon suit has been filed, which is not maiAnta'i'nableiV.a'rsdthat}; plaintiff cannot be permitted toaerlcroacah-.u"poVn the forest land' \' l _ _ , 3*. """ pl'ead'i"ngs of the parties, the trial court issues:
lxfiiwhvetherA'tVhe...x~p|aintiff proves that he is the absolute owner of schedule property? $2.'ywiethelrlllféythe plaintiff proves actual .,_v".p'«po'ssession and enjoyment of schedule "property on the date of suit?
v.3.i"g?\.l'hether the defendants prove that 220 "acres land in Vasthare Sy.No.369 is Reserve Forest and grant of any portion of the said area by Revenue Authorities illegal?
$1 :
4. Whether plaintiff proves alleged __ V obstruction to possession and erajoymentf of schedule property?
5. Whether plaintiff is entitled to decreé"of_~;.'.._i declaration and injunction? . -
6. What order or decree?
4. During the trial, pklaintifi'V_de~po'sed"a.s Ex.P-1 to Ex.P--8 were marked§"».rp The vsecontl Vl'deVfe'ndant if deposed as DW--1 and"fix.D:.1""tor_:'E§(;€>-17flWe~rer"Vh1arked. The Trial Court ansvirewred T' & 3 in the affirmative, iii.o.5igpa;rt_l:v VVa'ffirr;rriative and issue Nos.2 & 4 the suit was decreed in part; "'divr--e'cted to approach the concervnedl'authvority::who"ha's__'granted the land to locate his land. Th'e'=,suvitV'forA'..rei«i.ef of permanent injunction was .Aggri'eve.rJ.,«the plaintiff and the defendants 1 & l'.or'est Civepartment, have filed these appeals. learned Advocate appearing for the plaintiff contended that;
if (a) The trial court has committed an error in holding that the grant of suit property made in favor of the plaintiff is a portion of forest land. \% /' J4
(b) (C)
(d) The Civil Court cannot go into validity or otherwise of the grant made und.eVrs._th_e provisions of Karnataka Land Grant .Ru'ljes'_h'unti:'l"
and unless the Forest Department" g'eetSVi''f'li9V.'''_4"i "
grant set--aside. ._ The plaintiff has prodiuycediithe"sagu--v4a'ii'schist,f which establisheshis title to theys--i.iitv"pi*operty and the suit property~..ybeing Vnot._aj*_.fo''r:est'"land, '' the denial of relieAf,...offpermanent..inju,nction is illegal. _ i. ' The Trial Court appreciating the evseme oriwiana *3><S-'°'1 to EX-P-8:
.rna--terfial error and iliegality in d..iVrect"i_ng the. to; approach the authority 'fo:?.5»Vl.oca7T:io:'1_yotfrgrantedland and also in denying '' the _re~li'ef iof.pe.rrijanent injunction. °L.ea'rne'cl G_ov~e7rnment Pleader, on the other 'i ~. 'Aha c;o.ntandedV"thvat~;"
i ..Tt1:e'*-suit property is a forest land as is evident ' the Gazette Notification dated 27.01.1937 it in)' ' » {"Ex.D--3).
The Revenue Authorities had no right to grant the iand, which is a Government Forest Land in the possession of the Forest it / and is Department.
(C)
(d)
7.
The Trial Court has committed an error in decreeing the suit holding that the plaint'i'ff is the owner of the land, despite the faiiure on the part of the plaintiff to'-'i;dent'i--fy-- ~ suit property and prove his _p~os.séssi'o.n «.an<;i' enjoyment.
Trial Court has committ,eo--._ri1atelria,l -era:o'rl:'a~ni:'i'~._ its finding with ._V"r.eugard'v- to. _cie¢la[_rvationi is 2 L' perverse and the decree_passedr_VV:in':fayor of the plaintiff, d_oles_'VAriot_haye thesupport of any tenable ey_i_den<:e,::'is illegal. Ke=e'p'i«ng' in::.view:~'thefiriyaiedihtentions and the record, which E-°h_aVye'~«peru'sed,--..t:*ie*.po'ints for determination are:
'ix! .fwhethferthpe-~pyifian?mrr has proved that he is the 'absolute I_ow..ner in actual V _ possession and en37oyrnent'of the suit property?
.:"Wy_hethe'rH"'the suit property forms a part of the land. in Sy.No.369 of Vasthare village/Hobli, .__refse~rved to the Forest Department? ..!iNfhether the plaintiff is entitled to the relief prayed in the suit?
Plaintiff while deposing as PW--1 has relied upon Ex.P--8, the saguvaii chit, issued by the Tahsiiciar, to cEaim titie to suit property. PW-1 has not produced any evidence with regard to location of suit property. Uther than his own interested testimony, he has any other witness. The plaintiff could haveHe>{'a.i}nin_e.di' aileged grantees of the land on the iwesterin a-:ridi,:So_ut,he'rn'"1 side boundaries of the suit property,'i._S'i'nce have contended that, the su'int:"property iawfully granted and thatthe_.iR_ey'e.fige?"i'iDé¢pa'rtm'ent has no authority to grant the iand, to have examined the,~vaut,h1ority'__' That apart, Ex.P~8 is V Ptaintiff though has stated that on a portion of the suit property, "iie."has" 'pr§duced the CRC. His evidence maites 'itclear ,h_e__had attempted to encroach a portion oifthe rVesei*yie«iforest Eand and had planted coffee, which yvaVs.'~..remoyed'A'g:;.by the defendents--officials of the Forest _, Dep\a'rt.rrient.'fPiaintiff admits that the Forest Department iishasn-instituted criminai proceedings against him and that 'Forest Department authorities haxi passed order / M' 10 against him which he has questioned in appeai. No record has been produced with regard to the filing of any appeal.
9. DW-1 is the Range Forest Chikrnagalur Range. He has deposed that; if property falls within Biock~EI of Reserve. i_-"oresti No.369 of Vasthare village, which 2§§'tg.c.res.
has deposed that, out of the sa'idg:"l'and, on. 920 acres of iand was transferred to"'the'*Fore_st Dep'artirnent for reserve forest and since .the'n.fthe forest is in existence. He,has--_furijher'ciepos~ed.._tha'r,V'Von 16.11.1996 plaintiffiirattnemgptedi;'€o*cl'e.a'r- a poison of the reserve forest land and_e'ngte'r Jhence a case was registered against hirn.'fr~1e has stated that the Revenue Department to g'ravn..t...any part of the forest land. RTC of 9.3,the5-ai_d'».reser\fe--«forest land is at Ex.D-1 and the mutation is.'at"'lEx.D--7?'j_ the Notification under which the said '.Vexten't..o1fg_lalnd in Survey l\io.369 was transferred to the A v~.i_ForestgDepartment is~at Ex.D-3. The "C" Staternent along the Notification at Ex.D-3 is at Ex.D-4. The "c" ¥/ g __ .
11 statement shows that in Survey No.369, 220 acres of iand has been shown and the relevant entry is at Ex.D---4(a). Ex.D-5 is the survey sketch of Vasthare viilage issuedby the Survey Department. Plaintiff attempted to the forest land by ciaiming it to be the granted'V:'ia:nd:.}§yl'4_the'-it Revenue Department, which in fact 'ay "fore'As't:_.:offanlcel Separate action has been taken _by the 'f3eputy,C,onv'servator it of Forest, Chikmagalur under Se"c:tE'on 64 '0§V_the.'-iActv,:ac_iainst the plaintiff. The piaintiff rlghpt oflvwhiatsoever nature on the suit property.'-SAfhloulglh been cross- examined at le~n'g't,h," nothing-V:~ma<te'ri~ai». been eiicited to disbelieve his testmoiwy;'vizéviidence of DW~1 is in conformity with docu'm,entVaryevidence' marked through him i.e., E><s.,D_§f-A'-'ll' to Ex.D'--~r1__?:.V _ '«.From_'the evidence of DW-1 and the documents rr:'ari<ed it is clear that, the suit property is
--V partxlofz reserve forest. When the suit land is part and °u;pa.~ce._t.' ofvflthe reserve forest as is evident from the Gazette i\ioti'fication at Ex.D-3, the entry in the revenue record at t / ,.-.
12 Ex.P--2/RTC is of no consequence and further, mere temporary saguvalr chit (Ex.P~8) did not confer any the plaintiff in respect of the suit land. authorities have no competence to deal wEth..thje.VVpro:perty"' which was reserved to the Forest ijeyepairtnjjentp. has not derived any valid ,t'itl4__e inl".re'spect.V.ofV..the property to declare him as thxe».._"ow_nerV"ofttihve property.
-Since the plaintiff has 'failed to e.sltat)Vii~svri"«that according to Ex.P~8, he waspdeliveredth'ev"'p.rop'erty and he conténued to sa's*ne5lawfdlly, he has been rightly: re'lie_f..oi'vperrjnanent injunction. The plaintiffxhas failed.'t-o:prove't*hat"he is the absolute owner of the propertyand' in actual possession and enjo,y_lrneri.t of thevsameiand that the defendants obstructed hEs..,pusVsessio'n,__and enjoyment of suit property. The levipdence' would clearly establish that defendants V «V have" provetfthat suit property forms part and parcel of of land in Vasthare village/l-lobli Survey No.369, .' is a reserve forest and grant of any portion of the './ 13 land by Revenue Authorities is illegal and has ._ not conferred any rights on the plaintiff.
11. The View I have taken, gets suppofért' H decision of the Apex Court in jthe"*case Karnataka Vs. I.S.i\lirwane Gowda,A:".re1p_ortedl"i_n' SCC 744. In the said case, piiaintiffs had'c!.ai'n1etlw'title to 'V V the suit lands on the t::a~s_i's ofl'sag;iva'i'if..chits«given by the Tahsildar and fiied sun of title and permanent was that, the and the revenue departfn'e'nt*-havdfi .gra"nt'~a%nd issue saguvali chits, to the piaint_iffs.l accepted the case pleaded by the defe'ndant$'V._an~:l' 'concluded that the suit lands was and uliev-enue Department has no right to grant _'sag'uv_a'ii-..lchitsf'to the plaintiffs. The said judgment and decree wasf'j_affirmed by the Appeliate Court, which made 'x__reference_ to Gazette Notification, showing the lands were A {lf"inVcllu*cled in the said Reserve Forest and as per Ex.D-2, the %m"
sizaternent of land taken for indavara in Hukkunda Village, i/.
/ 14 which was spoken by the Range Forest Officer. However in Second Appeal, the said findings were reversed by_,vra_i's_i:ngV a presumption on the basis of the entries in records. The said judgment/cle_cr.ee__ wh--en"'q£_:estio'ned.i_ before the Apex Court, while setting a'sid'eA't»he'~' judgment/decree and restoring_'t~h,at olfthe first,'a1pflp«e.llate Trial Courts, it has beenheld as___lfo'l»!ow.sV:
"When the landswere'--.i,'n<:,l'ud"edfin"Reserve Forest, the entries in the..:'_reve.nu.e "'recoVrd.s" were of no consequenlcfilhandigfurther"n'io'rie-,.,s_a,guvali chit do not conferoritne'-s:t.i_iil..,,l_and.':,_:Thirs apart, the revenue aut1f1.ori'ti._e"s. 1'V.;e;§i.eVre_,_'1no't' cornpetent to deal with the propertvlwghlcii.Aw~a,,s"~the part of reserve forest".
In view ofVVVthe'.'.ab.o:ve4 discussion, it has to be held tha_tf,the*trial w'c"ou.rt____hf.=:s committed error in declaring the rpglairatififlto, 'b:e"*it_he owner of three acres of land based on "s'aguvavliV chit/Ehx',.P~8 and in directing him to approach the authlloritvg which granted the land to locate the extent of ':j..thr*ee acres. Since the lawful grant of suit property has not
-- lbelenl established, the judgment/decree of the trial court, "to the extent of holding that the Plaintxji has right to an 2' K. 15 extent of three acres of land is whoily erroneous--.and iilegal. Without the piaintiff establishing his possessioof"an'd.y enjoyment of the suit property, a mere declaratory'.d:eci'ee_"f "
could not have been passed. Howeve--r,yth'e triailcoVurtf,is'-.' justified in dismissing the suit of the'.pla.'intiff injunction, since the plaintiff~.,:fiasy fai'iec_i '-i_dé~nt"i'fy 'lithe '' ' location of suit propertzyand ,proy_e. this lawlfuiv-..povssession and enjoyment thereof. ' For theyyforetjdiln following:
""" the defendants stands and decree of the trial court,' under challenge, stands set-aside. Coynseqéijleflntviy, RF-'A 188/2002 filed by the .,,...,_piiismiirr stands dismissed. 05. 156/1986 on file of the Civil Judge (Sr. Dn.) & CJM, Chickmagaiur, stands dismissed. i/.
,/ 16
(iii) However, in the circumstances of the case,-'--the .
parties are directed to bear their res'§i:ex:t£x!.é'v.. costs throughout.
Ksj/-