Karnataka High Court
Sri Puttappa @ N Puttaiah vs The State Of Karnataka on 23 October, 2010
Author: K.Govindarajulu
Bench: K.Govindarajulu
INTTHEHKH{COURT(X*KARNNDUQAATBANGALORE
DATED THIS THE DAY OF OCTOBER 2010
BEFORE
THE HON'BLE MR JUSTICE K GOvII\IDAR,{I;I'U.L;U'__jj ,_ A'
REGULAR SECOND APPEAL NO.264_I.. ._ 3
BETWEEN:
1.SRI PUTFAPPA @ N.PUTTAIAH.
AGED ABOUT 53 YEARS, S/O SR1 NARAYANAPPA, R/O ACHATNAHALLI V_ILLAGE,.... NARASAPURA HOBLI; _ _ , KOALR TALUK AND DIS'I'RlC'I'I_~--§5(3310:1 I
2. SRI K.UMA Sf£ANK1§.R;"*--:V'& V AGED ABOUT 49;)'{EARS, :: » S /O S.I.RIILRISIRNA:::.RED.DY. R/O Ac:~IATNA;_IIALLI VILLAGE,- NARASAPURA HOf£3LI.; R' ' KOALR TALIJK 'A;\I1:>..'DISTRIGT -- 563101.
3. SMT c.SOv§rI3IIAGSIfAI\)Ii\/IA, AGED ABOUT 48 YEARS, " . wyo' LATE'I--S_RI BACRAPPA, v_ . R/O ACEATNAIIALLI VILLAGE, NARASAE?'URA_ HOBL1, KO--.AGLR'TAIII_UKAND DISTRICT -- 553101.
4.S'RI MUNIYAPPA, AGED ABOUT 60 YEARS.
SKO SR1 CHIKKAMUNIYAPPA.
57' R/O~_.AcHATNAI~IAL1.I VILLAGE. _ NARASAPURA HOELI, EOALR TALUK AND DISTRICT -- 563101. I\)
5. SRI A MUNI REDDY, AGED ABOUT 55 YEARS, S/O ANJANEYA REDDY, R/O ACHATNAI-IALLI VELLAGE, NARASAPURA HOBLI.
KOALR TALUK AND DISTRICT ---- 563101.
6. SRI NRAMESH, AGED ABOUT 45 YEARS, S/O SR1 NARAYANA REDDY, V R/O ACHATNAHALLI VILLAGE, NARASAPURA HOBLI, KOALR TALUK AND DISTRICT 410 1. A '
7. SR1 RANGAPPA, VT ;
AGED ABOUT 58 YEARS, ' S/O SR1 YERRAPPA, R/O ACHATNAHALLI 7 ~ NARASAPURA KOALR TALUK 1A1~1.D';'1_DISTRICT '--" S7631_01.
8. SRI1vR;*P.A1VL01PF*A;, ~ _ ._ AGEDABOUTJ '56wYEA12S;'~« . V _ S/O SR1 1vIU1xIIS'v.IA_1\/1A1?I=A_,''' '* R/O ACHATNAI~IAL},I'--VILLAGE, NARASAPU.RA.HOBLI._ "
KOALR TALUK AND DESTRICT M 563101. V' --. 9. "SR1 _ 1-TEDDY, A AGED .AB,G1JT.70 YEARS.
* S'/,0 'SRI».A1q.JAN_EYA REDDY, R /QIACEIA'If1\}'1;;°&I*1ALLI VILLAGE, NARASAPUEX HOBLI, KOALR'--TALUK AND DISTRICT -- 563101. = * SMT NIRMALAMMA, AGED ABOUT 40 YEARS, 'W'/0' SR1 NDEVARAJA, V' Bi/O ACHATNAHALLI VILLAGE, NARASAPURA HOBLI, KOALR TALUK AND DISTRICT -- 563 10 1 .
11. SR1 D.1\/LKRISHNAPPA, AGED ABOUT 68 YEARS, S/O LATE SR1 MUNISWAMAPPA, R/O ACHATNAHALLI VILLAGE, NARASAPURA HOBLI, I ~. « _, _ -V , s KOALR TALUK AND DISTRICT -- 56;31O1I_ .1 .APPEi,.J;J_§INT{S; [BY SRI.G.PAPI REDDY ANDSRI V.VIN_OD READ'D3r AND: I I I I I I
1. THE STATE OF KA'E.NATA--§<A, . ~ REPTD. BY ITS CHIEF S'EC'RETgs;RY _ ' - TO GOVERNMENT, VIDHANA S.O13D-HA,' 1, ., BANGALORE e.:36000];_'. * - *
2. THE OIé'FI_CER, GOVERNMENT ' ' EANGALOR_E§.~ 563:1.12~._.» *
3. THE D-EPUTY'Tc:»O1\,1.1$2IISSIONER, KOLAR DISTR1C.T,' V. KOLAR--5631.01.._' "
4. ..T5}IEG'DIVISVIO1\1AL FOREST OFFICER, I I - KoI.AR"D1vISION, """ "
I i§ANLé§;E"'EOREST OFFICER, MALUR.
KOLAR DISTRICT -- 563101. ...RESEONDENTS {EyjSRI;NASRULLA KHAN HOOP.) V' THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED " -~12.0'7.2007 PASSED IN R.A.NO.23I/02 ON THE FILE OF a¢-._~..r THE II ADDL. CIVIL JUDGE, {SR.DN.) KOLAR, PARTLY ALLOVVING THE APPEAL AND SETTING ASIDE"g'I'HE JUDGMENT AND DECREE DATED 15.04.2002 PASS'E'D--.IN O.S.NO.221/97 ON THE FILE OF THE PRL. {JR.DN.) KOLAR. __ THIS APPEAL COMING ON }?'OR A1)rar1--sjs1GN -'1fH1s'= 2 DAY, THE coum DELIVERED THE FOLI,OWINGj" _ ' = JUDGME1\f'I'__ 2 Plaintiff n0s.3,6, 17,24-;f2:'?,83,;?;8,.39,4'1 and 56"
in the suit OS 221 /are the second appeal.
2. "'-xarijiffjbe' '--rrefeifred according to their statu 5;; found' %s'u.ivt"'fvQr .cc.>nvenience. _ 3. by 61 plaintiffs seeking for ofuvtitie----to the plaint schedule property for perfizarreht"i.Ej'gncti0n. In the schedule to the piajnt, described as land in Sy.N0s.95, 135, 136 measuring 138 acres of Narasapur Hobli situated at 00'~00t"Aen;%;naha11: Village.
4. Case of the plaintiffs is that they are in possession and enjoyment of the plaint property since 1936, though 1st defendant--..'t11roti§h'ltltief then Maharaja issued a forest settlement in Go.No.105--FT--304--35~8 dated 6'.f'7,pp Un'd'e.r notification, while declaring "these suit. seh_"edn>1e'V'sy.nos. if as forest land, has dix'§_Ctedt"the:'dleiendarits"to"evict the plaintiffs from the It is further pleaded the be implemented as and enjoying the properties'; vsterelvallowed to cultivate the properties.' of the cultivation of the ipropertiesu 'havef'ptit up borewells, erected pumps, are raising vegetables, Mulberry A ete.' possession of the property. Strangely to the kndowledge of the plaintiffs, in the year 1994 3rd it defendant attempted to interfere with the possession. Defendants are very Well aware that the plaintiffs are in wpossession of the properties from the year 1936. Kw...'-
Defendants have taken assistance of police twopdays prior to filing of the suit. So, there is urgency. ~ for dispensing the notice under Section 80. d. V.
5. This case of the defendants contending is' reserved for the forest' is guritas of 142 acres. So, the plaintiffs-i.'t,_it1e or interest over the property:;'-- properties situated Taiuk and this propezftydddis ' 'Ladirshrninsagara Planatation'. Since of the property, the deferidaritsdddare possession of the property and it is a dhforesdt iidepartmentdddddproperty. In the said property Kadu Bush is also found and survey polls a:fe'e.rected. So, place reliance on the notification issuediby the then Maharaja of Mysore and the Gazette it "notification supporting their claim including the RTCS. x'I_......»--« eaoarigb
1. aaéaajuo mam aagia ,:;§3J;i§er:fi5:SQ)ciJa3doCi3 saw aiaaaijaoajgw mgremaim Xxadiozdafiie "
2. aiJ'ao:S eaafiea?
eaoa sea; 1 .- _a,ma5.- ":»aéoa:3G§@aF~';.'A. ' % eaoa mafia 2 .- e§E3e_ac:<Qé",, ad[*a%oe
9. Learned advocate Zfor:.,_thve~--_p1aintiffs submit that the plaintiffs havepoofilfédp the RA. The said ciioss -app"ea1_»uis"considered. Secondly, submit that the:i*e4_'_ is 'a _ filing the appeal by the defezétdaiits. Application is filed to condone delay. 'W1thou:t'«eonsidering the said application, final orders the Court do not get jurisdiction to ' . V record dudgment.
10
10. Learned Government Pleader Sri Nasrulla Khan submits that the land is a forest procedure adopted is not in accordance with..A4'law, A
11. in the light of the above ll arise for consideration by this Cottrtiiarel aslnrideri; " A T (1) Whether the plaintiffusl suit as «_ the one framed in regard a..rto--.'p_:'forcst land is maintainable'? V ; _ (2) Whether learned"App'elE:ate"~Judg.e"was not justified in vc0ns_§idering_4thocasc on merits withoutf the "application for condona"tio'n- or de.1ay"and_ the cross appeal? V' n
12.' for the plaintiff has placed reliar}.cei'~on of the Hon'ble Apex Court in Vs Subash and Others(2008[l] scc submission in regard to the filing of I_the Cro.ssl--lappeal, filing of the application for it lffconld-onation of delay and the delay in filing the appeal are not at all disputed. So, there is a duty cast on the appellate court first to decide the said applicavt.io'n_:s~..and then take the case for hearing on merits,-i. Hawng done so, the approach of the;Appellate"di.ivdée 231 /O2 is incorrect. On this the learned advocate for tliejplaintiffsp isaéeepted, '°Point' it No.2 is answered in favourpof plaintiffs. --
13. In the property is described H air' the revenue sy.nos.95i13'-hlllifiéidlill of the Karnataka follows:
Sec': 132:. Certified copies of records to beoannezed, toplaint or application:
"{1} Theplaintifi" or applicant in every suit or applicatioln,---as'hereinafter defined relating to _ land "situated in any area to which this " _ Chapter applies, shall annex to the Dlaint or A appl1c.ati.on, a certified copy of any entry in " * th€"R;€:C:Ord of Rights or Register of Mutations relevant to such land. [Emphasis supplied) ..[2); ....... ..
.. (3) After the disposal of any case in which a certified copy of any such entry has been recorded, the court shall communicate to the Deputy Commissioner any error appearing in such entxy and any alteration therein that may be required by reason of the decree or order and a copy of such communicatio-n_<l~.._ shall be kept with the record. The I_).e_p1,1t'_yff. V. Commissioner shall in such case cau._se"thfe ' entry to be corrected in accordance lwitlifthe decree or decision of the Court, _so"farf as it . adjudicates upon any n'ght"required- « entered in the Record of Rig11ftsA.of Register' 7-if Mutations. The pprovisionslfiof thisg 'sub--': "
section shall applyalso to "an appe1l'a_te~~or:
revisional court:
Provided 't.hat._' ..the'~_case of an appellate or revisional de(:ree[or, order passed by the High Couit.._Vor_'Suprernfe: Court, the communicationshall be'-nzadel bythe original court :'from' which "the appeal lay or the reCQrdl"'YiiS..C-alleflfof » Clairn an _A to any landed property, the RTCs o1<._revenu.e to support the claim of the plaintiffs havedtollbeliproduced. In the facts of the case, 13.16 are produced along with plaint, they Tlivese RTCs disclose that the property is a Land Revenue Act prohibits dealing with gornpallland. So, even on the documents produced the plaintiffs, there is non--compliance of the it rnandatory rules found in The Karnataka Land Revenue Act. So, there is a duty cast upon the trial Court and also on the appellate Court to find out Whether as the one framed is maintainable that too * notification of 1936-37 issued if being not questioned. It is notl"«"Vthe'-case plaintiffs that the said vrho lithe 'V V notification had no the notification or that he lacked power. situation reflected in the facts of the of 'Forest land". Dictionaiy states ifflorest Land":
Forest'jllarvldi~«.:_:':p"Forest land", Without evidence to shcwiliat it had been cleared and prepared' or" earmarked for agricultural ,"'*pu}fposes, 1'nus.t<be treated as prima facie nongagricultura} land" (Emphasis supplied) in '»fiei§v"'0:f'rr"1eaning to the Forest Land and in View V if _ of the RTCsdisclosing that it is a gomal land, the prima __'1na'teria1 would show that the approach of the trial Judge and Appellate Judge that it is a land T "l-sllinllrevenue Sy.No. capable of being held by public is not apt. As it is a gomal land, if the plaintiffs claim right in regard to a gomal land, they have to folloxv-.l_lthAe procedure prescribed under the Land * Under Land Revenue Act, except' for '' lfiejjtity if Commissioner, there is no other reduce or increase the extentnllcf gornal lan'C_1_. VVKm'S'ections"' 3,4,5,6 and 17 of the .E$'amatalra:4 rarest Act, .1963 deal with reserve forest. if the State Governrnenty as a reserved forest. Government has to issue identification of the said 5, the Forest Settlement Officer to the ioarticulars of the forest land. bars right being created when once the ::'under Section 4 is issued by the Under Section 8(3), there is a bar on the V Civil Court to entertain a suit to establish any right in
-- lorllover any land in respect of which notification under "Section 4 of the Karnataka Forest Act, 1963 is issued. '5\_.
Section 7 authorise the enquiry by the V.-Forest Settlement Officer after the declaration of forest land under Section 4 of the Act. Secti_on with notification declaring the '"Hfor'est"-,as« forest. Who has authority to forest gomal not all considered. These lasufjects of.the.?ease are not Considered by both Floint No.2 being answered in Court holds that the * case require Vidfizploellate Judge. So, the Court to be answered by the ' (1). the blaintiff can claim title to " the plaint 'schedule property in View of it b3Cl1'Ig}3,_g0n1a.1 land as per RTC's? the suit is barred under Seo6(3) ' of_thei.V_Karnataka Forest Act 1963?
"{3}"; Whether the notification issued by his A Highness Maharaja of Mysore in 1937, can ._ be questioned by the plaintiffs in 1997, in 'A the suit?
14. Further, learned appellate Judge is directed to secure the presence of both the parties, hear both sides. decide the case afresh in accordance with 1awT;'"=._It is made ciear the discussion made above is«c...1iInit'e-ti for consideration of the submissions addressed.,. judge to record additional evidence:if;n'ecessary.,'..o'r;Vcai1 for findings, then decide the case._afreshcVintaccordance with law.
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