Karnataka High Court
T C Jaydeva Dead By Lrs vs Range Forest Officer on 8 February, 2023
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RSA No. 751 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 751 OF 2012 (INJ)
BETWEEN:
1. T C JAYDEVA
DEAD BY LRS
1A. SMT SUSHEELA
W/O LATE T C JAYADEVA
AGED 85 YEARS,
OCC: HOUSE WORK,
R/AT KAVADIGARA BEEDHI,
TARIKERE TOWN-571107
1B. SMT ATMASHREE T J
W/O LATE R G KUMARASWAMY
Digitally
signed by R/AT NO.206/227, 5TH CROSS, B-2ND SBM COLONY
ALBHAGYA
SRINIVASANAGARA, BANGALORE-50
Location:
HIGH
COURT OF 1C. DEENANATH T S J
KARNATAKA
S/O LATE T C JAYADEVA
AGED ABOUT 63 YEARS
R/AT NO.427, HRBR LAYOUT, 5TH D MAIN ROAD,
2ND BLOCK, KALYANANAGAR,
BANGALORE-43
1D. ARUNA T S J
S/O LATE T C JAVADEVA,
AGED ABOUT 60 YEARS
R/AT KAVADIGARA BEEDHI,
TARIKERE TOWN-571107.
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RSA No. 751 of 2012
1E. SMT SHOBHA T J
W/O SHIVADEVA
AGED ABOUT 56 YEARS
R/AT NO.6, 17TH BLOCK
POLICE QUARTERS, ANAND RAO CIRCLE
BANGALORE 560 009
1F. SHAILAJA T J
W/O SHIVAKUMARA
AGED ABOUT 53 YEARS,
R/AT NO.2, RAKSHAKA BLOCK,
KSRP POLICE OFFICER QUARTERS
KORAMANGALA, BANGALORE-34
1G. SHANTHA J
W/O ONKARASWAMY
AGED ABOUT 49 YEARS
R/AT NO.69, GURUKRUPA BHUVANESHWARI
NAGARA, C V RAMAN NAGAR, BANGALORE 93
1H. RAVINDRAKUMARA T S J
S/O LATE T C JAYADEVA
AGED ABOUT 46 YEARS
R/AT RAMAPURA VILLAGE, KASABA HOBLI,
DUGALPURA POST, TARIKERE TALUK,
CHICKMAGALUR DISTRICT-577201.
1I. DR. SHEELA T.J
W/O M.S.SHEKAR
AGED ABOUT 41 YEARS
KAVDIGARA STREE, TARIKERE TOWN,
TARIKERE-571107.
...APPELLANTS
(BY SRI.G.B.NANDISH GOWDA, ADVOCATE)
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RSA No. 751 of 2012
AND:
1. RANGE FOREST OFFICER
BHADRA WILDLIFE RANGE, LAKKAVALLI
TARIKERE TALUK, CHIKMAGALUR DISTRICT-577201
2. THE ASST. CONSERVATOR OF FORESTS
BHADRA WILDLIFE SUB DIVISION, LAKKAVALLI
TARIKERE TALUK, CHICKMAGALUR DISTRICT-
577201.
3. THE DEPUTY CONSERVATOR OF FORESTS
BHADRA WILDLIFE PROTECTION AREA,
LAKKAVALLI TARIKERE TALUK,
CHICKMAGALUR DISTRICT-577201
4. RANGE FOREST OFFICER
LAKKAVALLI RANGE, LAKKAVALLI
TARIKERE TALUK, CHICKMAGALUR DISTRICT-577201
5. THE ASST CONSERVATOR OF FORESTS
TARIKERE SUB DIVISION, TARIKERE TALUK,
CHICKMAGALUR DISTRICT-577201
6. THE DEPUTY CONSERVATOR OF FORESTS
BHADRAVATHI DIVISION,
BHADRAVATHI, SHIMOGA DISTRICT-577203
7. THE CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA, BANGALORE-01.
...RESPONDENTS
(BY SRI.H.K.BASAVARAJ, AGA)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 17.02.2012 PASSED IN
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RSA No. 751 of 2012
R.A.NO.11/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND PRINCIPAL, J.M.F.C., TARIKERE, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
29.10.2010 PASSED IN O.S.NO.124/2007 ON THE FILE OF THE
LEARNED CIVIL JUDGE (JR.DN), TARIKERE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the plaintiff feeling aggrieved by the divergent findings of the Courts below wherein Appellate Court has reversed the decree passed by the trial Court granting perpetual injunction in favour of plaintiff and by allowing the appeal, the suit filed by the plaintiff for injunction simplicitor is dismissed.
2. For the sake of brevity, the parties are referred to as per their rank before the trial Court.
3. The plaintiff has instituted the present suit seeking injunction against the defendants in respect of agricultural lands bearing Sy.Nos.28, 29, 30, 31, 32 and -5- RSA No. 751 of 2012 33 measuring 27 acres 18 guntas. The plaintiff claims that these lands were originally part of Sy.No.12P which was surplus land granted to several persons and saguvali chit were issued by the revenue department. The plaintiff claims that 4 acres 20 guntas was granted to one Sidde Gowda S/o Sidde Gowda vide saguvali chit No.40/1982-83 dated 23.10.1982. Similarly, 4 acres 20 guntas was granted to Chennayya S/o Lingayya vide saguvali chit No.41/1982-83 dated 23.10.1982, 4 acres 20 guntas to Nanjundappa S/o Kapanayya vide saguvali chit No.42/1982-83 dated 23.1..1982, Lingaraju S/o Nanjundappa vide saguvali chit No.43/1982-83 dated 23.10.1982, one Mariyanna S/o Venkatesha Shetty under saguvali chit No.71/1983-84 dated 30.05.1983, Appaji S/o Rangaiah under saguvali chit No.71/1983-84 vide order dated 30.05.1983.
4. The plaintiff claims that all these grantees having acquired valid right and title in-turn have sold to the present plaintiff herein under different sale deeds. -6- RSA No. 751 of 2012 Therefore, the plaintiff claims that he has acquired valid right and title based on registered sale deed executed by the above said grantees and therefore, plaintiff claims that he is in exclusive possession and enjoyment over the suit schedule property. It is the specific case of the plaintiff that defendants are nowhere concerned with the suit schedule properties. The present suit is filed apprehending highhandedness of the defendants Government officials who tried to oust the plaintiff and therefore, the present bare suit for injunction is filed.
5. The defendants forest officials, on receipt of summons, tendered appearance and written statement was filed by defendant No.1. The defendants claimed that plaintiff along with labourers tried to encroach over the forest land based on concocted and created documents. The defendants claimed that they have already imposed a fine amount of Rs.25,000/- and accordingly, criminal case is lodged to protect the forest lands. At para 10 of the written statement, the defendants claimed that entire -7- RSA No. 751 of 2012 Sy.No.12 totally measuring 355.17 acres by an order issued by the then Maharaja of Mysuru dated 01.12.1930 was notified as forest and same is handed over to the forest department which is known as Kundur Minor Forest. Therefore, defendants claimed that revenue department without prior permission from the central Government and Forest department, had no authority to grant the forest land in Sy.No.12 to individuals. Therefore, on these set of defences, the defendants sought for dismissal of the suit.
6. The plaintiff and defendants to substantiate their respective claim have let in oral and documentary evidence.
7. The trial Court having examined the pleadings of the parties and having assessed oral and documentary evidence let in by plaintiff and defendants was of the view that plaintiff has succeeded in proving his lawful possession as on the date of filing of the suit. The trial Court while referring to title documents found that plaintiff has succeeded in proving that his vendors were allotted -8- RSA No. 751 of 2012 lands in question by the competent authority and pursuant to grant, saguvali chit was issued to their respective vendors. The trial Court thereafter referring to the title documents vide Exs.P-8 to P-12 and consequent mutations effected by the revenue authorities based on registered sale deeds vide Exs.P-13 to P-19, was of the view that plaintiff has succeeded in establishing his lawful possession based on title documents. Though suit is one for injunction simplicitor, trial Court has answered issue No.1 in the affirmative declaring plaintiff as the absolute owner in lawful possession over the suit schedule property and consequently, trial Court also held that plaintiff has succeeded in proving interference. On these set of conclusions and reasons, trial Court proceeded to decree the suit.
8. Feeling aggrieved by the judgment and decree of the trial Court, the defendants preferred appeal before the Appellate Court.
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9. The Appellate Court being final fact finding authority has independently assessed the evidence on record. The Appellate Court while taking cognizance of Ex.D-4 which is the notification issued by the then Maharaja of Mysuru was of the view that under Government notification, the said land bearing Sy.No.12 of Upparabiranahalli Village totally measuring 355.17 acres was declared as a minor forest in the name of Kundur Minor Forest. The Appellate Court was of the view that plaintiff has failed to produce any documents to indicate that these lands were de-notified and possession was delivered to the revenue department wherein he could have dealt with the lands by issuing grant orders to the individuals. It is precisely in this context, Appellate Court was of the view that the revenue authorities had no jurisdiction to meddle with forest lands and therefore, Appellate Court was of the view that revenue officers lack competency to issue saguvali chit in favour of individual persons when admittedly the grant was in respect of forest land.
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RSA No. 751 of 2012
10. Referring to the principles laid down by the Hon'ble Apex Court in the case of State of Karnataka vs. I.S.Niravane Gowda and Others1, Appellate Court was of the view that revenue authorities have no competence to convert forest land which includes State reserve forest also. Therefore, Appellate Court proceeded to hold that saguvali chit issued by the revenue department and entries made in revenue records is of no consequence and the same would not confer any title over the forest land either in favour of grantees or subsequently in favour of plaintiff who is asserting title and possession based on registered sale deed executed by original grantees. Consequently, appeal is allowed and suit is dismissed.
11. These divergent findings are under challenge at the instance of the plaintiff.
1 (2007) 15 SCC 744
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RSA No. 751 of 2012
12. This Court vide order dated 09.07.2019 was pleased to admit the appeal on the following substantial questions of law:
"1) Whether the plaintiff has acquired ownership and possession over the suit schedule property by virtue of the sale deed?
2) Whether the claim of the plaintiff is subject to Ex.D-4?
3) Whether the vendor of the plaintiff had no perfect title to convey in favour of plaintiff?
4) Whether mere suit for permanent injunction is maintainable in the circumstances of the case?"
13. Heard learned counsel appearing for the plaintiff and learned AGA appearing for the defendants. I have given my anxious consideration to the divergent findings recorded by the Courts below. I have also given my anxious consideration to the additional documents produced by the plaintiff and objections filed by the defendants to the applications filed under Order 41 Rule 27 of CPC.
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RSA No. 751 of 2012
14. The controversy in the present suit is as to whether plaintiff is entitled to seek injunction against defendants based on title documents. Equally, the next question is as to whether defendants can resist the present bare suit for injunction on the ground that these lands are forest lands and therefore, the saguvali chit issued by the revenue authorities and consequent sale deeds executed by the original grantees in favour of plaintiff is of no consequence. The Appellate Court has reversed the judgment and decree of the trial Court by placing reliance on Ex.D-4 which is the Government notification declaring some of the lands as minor forest reserve named as 'Kundur Minor Forest'. Appellate Court referring to Ex.D-4 has come to conclusion that the present suit lands which were originally part and parcel of Sy.No.12 of Upparabiranahalli Village were notified as reserve forests.
15. Both the counsel on record have extensively extended their arguments. I have given my anxious
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RSA No. 751 of 2012consideration to Ex.D-4 which is the notification dated 01.12.1930. On examining the same, this Court would find that the then Maharaja of Mysuru has issued a declaration under the provisions of Section 35 of the Mysuru Forest Regulation (XI of 1990) and has declared the land annexed in the schedule as minor forest under the name Kundur Minor Forest.
16. After appendix to the said notification, Part III-I is a further Gazette notification notifying several survey numbers which are declared to be as a minor forest and these survey numbers are bound by several survey numbers. Under the very notification, some rights and privileges are reserved to the villagers within the block which is found at page 307 of the paper book. It would be useful for this Court to cull out the relevant paragraph:
"b). Right of pasture.
The raiyats of the following villages are entitled to graze their cattle in the survey numbers noted against each as per following particulars.
i). Free -
i). Hunsanahalli - Survey No.25
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RSA No. 751 of 2012
ii). Upparbiranahalli - Survey No.12 iii). Kenchikoppa - Survey No.42, 43 and 63
iv). Halsur - Survey No.96, 97 and 132 (part)
v). Malikoppa - Survey No.13
vi). Mandarvalli - Survey No.40
vii). Dodkundur - Survey No. 1(part)
viii). Hirigapura - Survey No.11
ix). Waddardibba - Survey No.41 & 45.
x) haruvanhalli - Survey No.35
iii) On payment of a lumpsum hulbanni fee (The right to graze having hither to been disposed of under hulbanni system for nominal sums)."
17. If this relevant portion of Ex.D-4 is looked into, then obviously, the stand taken by the defendants that Sy.No.12 was also notified under minor forest requires reconsideration. Under the very same notification, Sy.No.12 is reserved for the villagers to utilize Sy.No.12 with other lands for grazing purpose. Therefore, this Court is of the view that the Appellate Court has not properly appreciated Ex.D-4 and other relevant documents while deciding the appeal. The entire basis for reversal is Ex.D-4. However, this Court is of the view that Appellate Court has virtually misread this document at Ex.D-4 while deciding the claim of plaintiff and defendants.
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RSA No. 751 of 2012
18. In view of dismissal of the suit, plaintiff has produced several documents by way of additional evidence by filing an application under Order 41 Rule 27 of CPC. Learned counsel appearing for the plaintiff has taken this Court through various documents. The plaintiff by producing these additional documents has made an attempt to demonstrate that it is not only the plaintiff's vendors who were granted lands in Sy.No.12, in the affidavit sworn in support of the application filed under Order 41 Rule 27, he has furnished the list which is found at para 7 and the same indicates that there are atleast 27 grantees in Sy.No.12. Coupled with this declaration in the affidavit, the plaintiff has also placed reliance on the mutation effected under M.R.No.6/1991-92 where the Revenue Inspector while effecting mutation has effected mutations indicating that Sy.No.12, 9 and 14 were handed over to the revenue department. The plaintiff has also placed on record the document relating to acquisition by the State for Upper Bhadra Project wherein some of the
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RSA No. 751 of 2012grantees who lost lands were compensated by paying compensation. These documents are also placed on record. Finally, learned counsel has brought to the notice of this Court to the index of land which shows that several portions were allotted to various grantees and these grants are related to 1958-59 to 1978-79.
19. Though defendants have filed objections, however, I would find that there is no specific denial to counter all these documents which are placed on record by the plaintiff by way of additional evidence. All that is stated in the objections is that these additional documents which are now produced are created documents in collusion with revenue officials. A defence is also taken that these documents are produced at a belated stage and therefore they cannot be entertained. In the objections, it is stated that these documents are sought to be produced after lapse of 11 years.
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RSA No. 751 of 2012Findings on application filed under Order 41 Rule 27 of CPC
20. The plaintiff who is a bonafide purchaser and who is asserting title and possession based on registered sale deed is before the Court. If plaintiff has purchased these lands after verifying grant orders as well as revenue documents which have got presumptive value, then to do substantial justice, this Court is of the view that these additional documents deserve to be taken on record. Though these documents were not produced before the Court of first instance, however, as Appellate Court has placed total reliance on Ex.D-4 and has recorded a finding that these suit lands are forest lands, this Court is of the view that it is absolutely necessary to take these documents on record to do substantial justice to the parties.
21. The core question that needs consideration is as to whether these lands are forest lands. The attempt made by the plaintiff to place on record additional documents is only to demonstrate that it is not only the
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RSA No. 751 of 2012plaintiff's vendors who were beneficiaries and lands were granted to his vendors alone by issuing saguvali chit but, at para 7 of the affidavit, there is a declaration indicating that there are other 27 beneficiaries to whom grant was made by the revenue authorities and consequently, saguvali chits were issued. Therefore, this Court is of the view that plaintiff alone cannot be singled out. The additional documents, more particularly the documents pertaining to land acquisition proceedings also reveal that some of the grantees have received compensation from the State Government as they lost lands in Upper Bhadra Project. Therefore, on parity, if there are several grantees and if there are mutations indicating that Sy.No.12 was handed over back to the revenue department, these additional documents are absolutely necessary for effective and complete adjudication. Therefore, I am of the view that these additional documents which would enable the Court to resolve the controversy once for all have to be admitted on record. Therefore, application deserves to be allowed.
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RSA No. 751 of 2012
22. These additional documents which are produced for the first time before this Court have to be tested and the defendants authorities have to be given a reasonable opportunity to contest these additional evidence. These additional documents have to be received in the manner known to law. The plaintiff has to lead further evidence and these documents are to be taken on record. Equally, defendants are entitled to refute and lead further rebuttal evidence to counter these additional documents. In that view of the matter, I am of the view that this matter inevitably has to be remitted back to the Appellate Court thereby relegating the parties to lead further evidence in furtherance of these additional documents placed on record before this Court. The defendants are entitled to cross-examine the plaintiff and are also entitled to lead further rebuttal evidence if they chose to do so.
23. In the light of the observations made supra, this Court is of the view that the substantial questions of law framed by this Court cannot be answered unless these
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RSA No. 751 of 2012additional documents are tested and the findings are recorded on these additional evidence. Therefore, keeping open the first substantial question of law, the claim of plaintiff which is obviously subject to Ex.D-4 and its correct interpretation, the additional documents are also required to be looked into. If plaintiff's claim is based on title documents, the substantial question of law No.4 after appreciation of additional evidence, a finding needs to be recorded. Therefore, this Court is of the view as to whether plaintiff has acquired ownership and is in lawful possession over the suit lands depends upon a fresh adjudication by the Appellate Court by not only referring to part of Ex.D-4 but by reading the entire Ex.D-4 along with the additional documents, more particularly the documents relating to acquisition proceedings, mutation effected by revenue officer, the index of lands indicating that grants were made way back in 1958-59 coupled with part of notification vide Ex.D-4 wherein it indicates that Sy.No.12 was reserved for cattle grazing. If the land bearing Sy.No.12 was reserved for cattle grazing that definitely
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RSA No. 751 of 2012vests jurisdiction and authority with the revenue authorities to divert the lands and distribute by treating it as surplus land provided it is not a forest land.
24. The plaintiff's vendor's title to the suit land is based on grant order and whether plaintiff's vendor had a saleable title based on grant order would be subject to fresh adjudication by the Appellate Court after taking cognizance of additional documents and also taking cognizance of entire contents of Ex.D-4. The maintainability of the present suit which is one for injunction simplictior without seeking relief of declaration would be dependent on the findings of the Appellate Court in regard to the nature of the land. If the suit lands which are the subject matter of the suit are held to be forest lands, then plaintiff is not entitled for relief of declaration of title. Whether plaintiff's vendor had a saleable title to convey would be also subject to adjudication of the nature of the suit lands. If the lands were maintained for cattle grazing as evident from Ex.D-4 and if the revenue
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RSA No. 751 of 2012authorities have granted the land by treating it as a surplus land, then the plaintiff's vendors would acquire title. Before arriving at the said conclusion, the Appellate Court has to come to conclusion whether suit lands are notified as forest lands or the lands were under the control of revenue authorities.
25. In the light of the discussions and observations made supra, I pass the following:
ORDER
(i) The second appeal is allowed.
(ii) The judgment and decree passed in R.A.No.11/2011 by the Appellate Court is set aside and the matter is remitted back to the Appellate Court to consider afresh;
(iii) Since the parties are represented by their respective counsel, plaintiff and defendants are directed to appear before the Appellate Court on 13.03.2023 without expecting any further notice;
(iv) Registry shall forthwith remit the trial Court records as well as the additional evidence which is taken on record by this Court;
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RSA No. 751 of 2012
(v) On receipt of the trial Court records and additional evidence, Appellate Court shall proceed with the case and after providing reasonable opportunity to the plaintiff and defendants, shall decide the case on merits;
(vi) I.A.No.1/2012 does not survive for consideration and stands disposed of.
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JUDGE CA List No.: 1 Sl No.: 18