Karnataka High Court
Gopala vs State Of Karnataka on 18 June, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
R.S.A.No.558/2008
C/W
R.S.A.NOs.1580/2012, 555/2008, 559/2008, 557/2008,
556/2008, 2086/2010 AND 1581/2012
IN RSA No.558/2008:
BETWEEN:
GOPALA
S/O BASAPPA
AGED ABOUT 57 YEARS
AGRICULTURIST
R/O HARIGE, B H ROAD
SHIMOGA - 577 201.
...APPELLANT
(BY SRI GOPALA - PARTY IN PERSON
VIDE COURT ORDER DTD.24.04.2019)
AND:
1. STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA,
BANGALORE.
2. RANGE FOREST OFFICER
UMBLEBYLU RANGE
UMBLEBYLU
SHIMOGA - 577 201.
... RESPONDENTS
2
(BY SMT. RAFEEUNISA, HCGP)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 28.7.07 PASSED IN
R.A.No.11/05 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE, (SR.DN), & CJM., SHIMOGA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND
DECREE DATED 27.10.04 PASSED IN OS 135/2002 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE, (JR.DN),
SHIMOGA.
IN RSA No.1580/2012
BETWEEN:
SMT. VIDYA
D/O MANJAPPA,
AGED ABOUT 57 YEARS,
R/A C/O.MAHAMED ALI,
ROZA MOHALLA,
VENKATESH NAGAR,
3RD CROSS, SHIMOGA-577 201.
...APPELLANT
(BY SMT. H R ANITHA, ADVOCATE)
AND:
1.STATE OF KARNATAKA
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
BANGALORE-560 001.
2.RANGE FOREST OFFICER
UMBEBYLU RANGE,
UMBLEBYLU,
SHIMOGA TALUK AND
DISTRICT - 577 201.
... RESPONDENTS
3
(BY SMT. RAFEEUNISA, HCGP)
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 28.7.2007
PASSED IN R.A.No.16/2005 ON THE FILE OF THE PRL.
CIVIL JUDGE (SR.DN) & CJM, SHIMOGA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED: 27.10.2004 PASSED IN O.S.NO.535/2001
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN)
SHIMOGA.
IN RSA No.555/2008
BETWEEN:
RUDRAPPA
S/O CHANNAPPA
AGED ABOUT 55 YEARS
AGRICULTURIST
R/O HARIGE, B.H.ROAD
SHIMOGA - 577 201.
...APPELLANT
(BY SRI RUDRAPPA - PARTY IN PERSON
VIDE COURT ORDER DTD.24.4.19)
AND:
1.STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BANGALORE .
2.RANGE FOREST OFFICER
UMBLEBYLU RANGE
UMBLEBYLU
SHIMOGA TALUK - 577 201.
... RESPONDENTS
(BY SMT. RAFEEUNISA, HCGP)
4
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT & DECREE DTD 28.7.2007 PASSED IN R.A.No.
32/05 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
(SR.DN), & CJM., SHIMOGA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DTD
27.10.04 PASSED IN O S 473/2001 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE, (JR.DN), SHIMOGA.
IN RSA No.559/2008
BETWEEN:
K N BASAVARAJAPPA
S/O CHANNAPPA
AGED ABOUT 53 YEARS
AGRICULTURIST
R/O HARIGE, B.H.ROAD
SHIMOGA - 577 217.
...APPELLANT
(BY SRI K N BASAVARAJAPPA - PARTY IN PERSON
VIDE COURT ORDER DTD.24.4.19)
AND:
1.STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BANGALORE DISTRICT.
2.RANGE FOREST OFFICER
UMBLEBYLU RANGE
UMBLEBYLU
SHIMOGA TALUK.
... RESPONDENTS
(BY SMT. RAFEEUNISA, HCGP)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT & DECREE DTD 28.7.07 PASSED IN R.A.NO
31/05 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
(SR.DN), & CJM., SHIMOGA, ALLOWING THE APPEAL AND
5
SETTING ASIDE THE JUDGMENT AND ZDECREE DTD
27.10.04 PASSED IN OS No.503/01 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE, (JR.DN), SHIMOGA.
IN RSA No.557/2008
BETWEEN:
RAJU
S/O RANGAPPA
AGED ABOUT 60 YEARS
AGRICULTURIST
R/O HARIGE, B.H.ROAD
SHIMOGA - 577 201.
...APPELLANT
(BY SRI RAJU - PARTY IN PERSON
VIDE COURT ORDER DTD.24.4.19)
AND:
1.STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BANGALORE.
2.RANGE FOREST OFFICER
UMBLEBYLU RANGE
UMBLEBYLU
SHIMOGA TALUK - 577 201.
... RESPONDENTS
(BY SMT. RAFEEUNISA, HCGP)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 28.7.07 PASSED IN
R.A.No.30/05 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE, (SR.DN), & CJM., SHIMOGA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DTD 27.10.04 PASSED IN OS 463/2001 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE, (JR.DN), AND
JMFC, SHIMOGA.
6
IN RSA No.556/2008:
BETWEEN:
L SUBRAMANI
S/OLAKKAPPA @ LOKAPPA
AGED ABOUT 58 YEARS
AGRICULTURIST
R/O HARIGE, B H ROAD
SHIMOGA - 577 201.
...APPELLANT
(BY SRI L SUBRAMANI, PARTY IN PERSON
VIDE COURT ORDER DTD.24.4.19)
AND:
1.STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BANGALORE.
2.RANGE FOREST OFFICER
UMBLEBYLU RANGE
UMBLEBYLU SHIMOGA - 577 201.
... RESPONDENTS
(BY SMT. RAFEEUNISA, HCGP)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DTD 28.7.07 PASSED IN R.A.NO
28/05 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
(SR.DN), & CJM., SHIMOGA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DTD.
27.10.04 PASSED IN OS No.494/2001 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE, (JR.DN), SHIMOGA.
IN RSA No.2086/2010:
BETWEEN:
SRI RAJENDRA
S/O NAGARAJ
7
AGED ABOUT 52 YEARS
R/A, YARAGANAL, NIDIGE HOBLI
SHIMOGA TALUK AND
DISTRICT - 577 201.
...APPELLANT
(BY SMT. H R ANITHA, ADVOCATE)
AND:
1.STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BANGALORE.
2.RANGE FOREST OFFICER
UMBLEBYLU RANGE
UMBLEBYLU SHIMOGA - 577 201.
... RESPONDENTS
(BY SMT. RAFEEUNISA, HCGP)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DTD 28.7.07 PASSED IN R.A.NO
13/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
(SR.DN), & CJM., SHIMOGA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DTD.
27.10.04 PASSED IN OS No.136/2002 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE, (JR.DN), SHIMOGA.
IN RSA No.1581/2012:
BETWEEN:
SRI NARASINGAPPA
SINCE DEAD BY HIS LRs.
1. SMT. VIDYA VATHI T
W/O LATE NARASINGAPPA
AGED ABOUT 60 YEARS
2. SRI T SHYAM SUNDER
8
W/O LATE NARASINGAPPA
AGED ABOUT 60 YEARS.
BOTH ARE RESIDING AT
SHARAVATHI NAGAR
5TH CROSS, NEAR VITTAL TEMPLE
SHIVAMOGGA CITY - 577 201.
...APELLANTS
(BY SMT. H R ANITHA, ADVOCATE)
AND:
1.STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BANGALORE - 560 001.
2.RANGE FOREST OFFICER
UMBLEBYLU RANGE
UMBLEBYLU
SHIMOGA TALUK AND
DISTRICT - 577 201.
... RESPONDENTS
(BY SMT. RAFEEUNISA, HCGP)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DTD 28.7.07 PASSED IN R.A No.
12/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
(SR.DN), & CJM., SHIMOGA, ALLOWED THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DTD.
27.10.2004 PASSED IN OS No.493/2001 ON THE FILE OF
PRINCIPAL CIVIL JUDGE, (JR.DN), SHIMOGA.
THESE RSAs COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
9
JUDGMENT
These are the eight regular second appeals are preferred against the judgment and decree passed in Regular Appeals, more fully stated in the table below:
Sl. RSA No. RA No. Result OS.No. Result and No. and filed filed by and date date of disposal by whom whom of made by Prl. Civil disposal Judge (Jr.Dn) made by Shimoga Prl.Civil Judge (Sr.Dn)) Shimoga
1. 558/2008 11/2005 Allowed 135/2002 Plaintiff Defendants DD DD 27.10.2004 28.7.2007 Decreed
2. 1580/2012 16/2005 Allowed 535/2001 Plaintiff Defendants DD DD 27.10.2004 28.7.2007 Decreed
3. 555/2008 32/2005 Allowed 463/2001 Plaintiff Defendants DD DD 27.10.2004 28.7.2007 Decreed 4 559/2008 31/2005 Allowed 503/2001 Plaintiff Defendants DD DD 27.10.2004 28.7.2007 Decreed
5. 557/2008 30/2005 Allowed 463/2001 Plaintiff Defendants DD DD 27.10.2004 28.7.2007 Decreed 10
6. 556/2008 28/2005 Allowed 494/2001 Plaintiff Defendants DD DD 27.10.2004 28.7.2007 Decreed
7. 2086/2010 13/2005 Allowed 136/2002 Plaintiff Defendants DD DD 27.10.2004 28.7.2007 Decreed
8. 1581/2012 12/2005 Allowed 493/2001 Plaintiff Defendants DD DD 27.10.2004 28.7.2007 Decreed
2. In order to avoid confusion and overlapping, the parties hereinafter are referred to with their ranks as held by them before the trial Court.
3. All the original suits are stated to be filed by the plaintiffs for the relief of permanent injunction. The defendants are common in all the original suits. The plaintiffs in all the suits claim that they are in lawful possession and enjoyment of the schedule property.
4. The suit schedule property in all the cases are different extent of lands in Survey No.29 of Yergnal village, Nidige Hobli, Shimoga Taluk. 11
5. The trial Court clubbed all the original suits on the memos filed by the learned counsel for plaintiffs as the defendants are common and the relief's claimed are identical in respect of the same survey number, but different extent.
6. The trial Judge was accommodated with the oral evidence of PW-1 and DW1 and documentary evidence of Exs.P1 to P7 and Exs.D1 to D10. The trial Judge decreed the suits of the plaintiffs and on appeals preferred by the defendants in regular appeals, the first Appellate Court allowed the appeals as mentioned above. The said judgment and decree passed by the first Appellate Court is challenged in these appeals by the plaintiffs.
7. The substantial questions of law framed by this Court in all the appeals are as under:
In RSA Nos.558/2008, 1580/2012,559/2008 12 "In the absence of an issue as between the parties, as to the nature of the land in the first place, whether the first appellate court was justified in addressing this as a point for consideration, without granting an opportunity to the parties to tender evidence and adduce arguments in respect of the same?
In RSA Nos.555/2008, 557/2008, 556/2008, 2086/2010 "Whether the first appellate Court was justified in addressing the issue as to the nature of the land when such an issue was never framed before the trial court and no opportunity was granted to the appellant to address the same?"
8. The plaintiff in the cases claim to be in possession and enjoyment of their respective extent of suit schedule property i.e. in survey No.29 of Yergnal village from 1973-1974 to 1977-1978. Though admitted owner of the suit schedule property is one M/s. Tunga Badra Sugar Works, the said Sugar Works did not cultivate the schedule property as it was unable for cultivation with ditches, plants, stones etc. The plaintiffs with the help of huge investment and labour 13 improved the land and used to cultivate the same for getting it turned to fertiore.
9. The learned counsel for the appellants/ plaintiffs Smt. H.R. Anitha would submit that Forest Department is not the owner of the schedule property and it belonged to Tunga Badra Sugar Works and plaintiffs were permitted by the said Sugar Works to cultivate the lands, as such, the defendants Government have no right over the suit property. She would further submit that Possessor Column in RTC for the year 1974-75 to 1977-1978 stands in the name of respective plaintiffs.
10. Learned Government Pleader, Smt. Rafiunnissa, would submit that in the light of the ownership of the property lying with the Forest Department and in the interest of public, plaintiffs cannot maintain the suits. The claim of the plaintiffs is that, the defendants Forest Department started laying 14 its claim on the schedule property by asserting that it belonged to the Department of Forest and interfered with the peaceful possession and enjoyment of the schedule property by the plaintiffs.
11. The learned trial Judge decreed the original suits. It is necessary to mention that a person in possession is entitled to continue in possession unless he is evicted by due process of law.
The ownership of schedule property as states by the plaintiffs themselves, belong to Tunga Badra Sugar Works.
13. No documents showing the authority given by Tunga Badra Sugar Works to the plaintiffs are forthcoming even before this Court. Further the Sugar Works has not filed any objections against the defendants claim. The plaintiffs claim that the possession is evidenced from 1973-1974 to 1977-1978. 15 No information regarding any proceedings are brought to the notice of the Court to hold that plaintiffs were authorized to continue in possession. When the land is stated to be a forest land, plaintiffs themselves admitted that they cultivate the lands, there is no specific way in which the plaintiffs are claiming the possession over the property. The employer of the plaintiffs Tunga Badra Sugar Works is not a party to the suits. Though, it is stated by the plaintiffs that Sugar Works did not cultivate the property and the same has to be cleaned and made fit for cultivation and it was done at the instances of the plaintiffs. With all that said, plaintiffs say that they are in possession of the property for several years. Plaintiffs are not asserting either as owners or as authorized authority to be in permissive possession or hostile possession.
13. Learned counsel for appellants would submit that their cases are recognized by the trial Court and 16 has rightly observed that plaintiffs are in settled possession and entitled to continue in possession till process of eviction is made by due course of law.
14. In this connection, it is necessary to mention that, in para-17 of the judgment, the trial Court has observed as under:
"17. Learned counsel for the plaintiffs vehemently argued that the plaintiffs are in settled possession of the suit schedule properties and they are entitled to protect their possession over the same. The defendants cannot interfere with the plaintiffs' possession of the suit schedule properties and the plaintiffs cannot be thrown out of the properties without recoursing to the due process of law. In this regard, the learned counsel for the plaintiffs relied upon the rulings reported in ILR 1999 Kar.301, ILR 1999 Kar.1451, ILR 2000 Kar.435 & ILR 2002 Kar.174. The dictum of the above rulings is that a person in settled possession though has no legal title is entitled to resist or defend his possession even against a rightful owner, who tries to dispossess him. The above rulings further laid down that where a trespasser was in settled possession, he cannot be thrown away except in due course of law, because such a trespasser is entitled to resist or defend his possession even as against the 17 rightful owner who tries to dispossess him. In this regard, it is appropriate to press into service the ruling laid down by the Hon'ble Supreme Court of India reported in AIR 1972 SC 2229.
Specific Relief Act(1963)S.37:
"Plaintiff in possession of suit property; he can, on strength of his possession, resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession.
Now it is a settled law that the person in settled possession even if it is against a true owner, his possession shall be protected and the owner is entitled to evict him only under due process of law. In the present case on hand, the plaintiffs have proved the possessory title over the suit properties and the defendants have not produced any better title to displace the case of the plaintiffs."
15. It is necessary to mention that the learned trial Judge, it appears, was carried away in mentioning the concept of possession which fails even the plaintiffs are in possession, When there are sufficient materials to show that the plaintiffs are neither owners or lessees nor protectors or persons under valid possession known to canons of law. Tunga Badra Sugar Works could have 18 been examined regarding the documents of title. Here are the plaintiffs who agitate for protection and claim the relief of injunction on the ground that they were placed in possession by Tunga Badra Sugar Works and cultivating the property thus denies the right of defendants-Forest Department. In the circumstances, the claim of the plaintiffs is un-meaningful. It was also submitted that the sum and substance of the claim of the plaintiffs is, the land belongs to Tunga Badra Sugar Works i.e. employer Factory.
16. Here, it is necessary to made a mention that the Court could not get the required assistance by Government. The matter had to be adjudicated by perusing the records. There were no proper answer for question.
17. The trial Court erred seriously in decreeing the suits of the plaintiffs in original side. However, the first Appellate Court has rightly dismissed all the 19 appeals filed by the plaintiffs. Hence, I do not find any grounds to interfere in the judgment and decree passed by the first Appellate Court. Accordingly, substantial questions of law raised in these appeals are answered.
18. For the foregoing reasons, appeals are devoid of merits and they are dismissed with costs.
The common judgment and decree passed by the First Appellate Court as mentioned above are confirmed.
Sd/-
JUDGE tsn*