Karnataka High Court
The Range Forest Officer vs Smt.Nirmalamma W/O Jagannatha Setty on 23 September, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2023:KHC:34654
RSA No. 1341 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
REGULAR SECOND APPEAL NO. 1341 OF 2007 (DEC/INJ)
BETWEEN:
1. THE RANGE FOREST OFFICER,
MADHUGIRI TALUK,
MADHUGIRI - 572 132.
2. THE SOCIAL FOREST OFFICER,
SIRA TALUK, SIRA - 572 137.
3. THE DISTRICT FOREST OFFICER,
TUMKUR DISTRICT,
TUMKUR - 572 101.
4. THE CHIEF SECRETARY TO GOVT.,
VIDHANA SOUDHA,
BANGALORE - 560 001.
...APPELLANTS
Digitally signed
by (BY SMT. AZARA J. DUNDIGE, AGA)
GAVRIBIDANUR
SUBRAMANYA
GUPTA AND:
SREENATH
Location: HIGH SMT. NIRMALAMMA,
COURT OF
KARNATAKA WIFE OF JAGANNATHA SETTY,
AGED ABOUT 35 YEARS,
RESIDENT OF BADAVANAHALLI,
DODDERI HOBLI,
MADHUGIRI TALUK - 572 132.
...RESPONDENT
(BY SRI. K.H. SOMASHEKHARA AND
SRI. S.K. SHIVAKUMAR, ADVOCATES (ABSENT))
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NC: 2023:KHC:34654
RSA No. 1341 of 2007
THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF
CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) MADHUGIRI
IN R.A.NO.176 OF 2000 DATED 2.11.2006 PARTLY
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE
LEARNED CIVIL JUDGE (JR.DN.) MADHUGIRI IN
O.S.NO.200/1995 DATED 30.08.2000 BY ALLOWING THIS
APPEAL.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellants-defendants challenging the judgment and decree dated 02.11.2006 passed by the Civil Judge (Sr.Dn.), Madhugiri in R.A.No.176/2000, whereby the first Appellate Court partly allowed the appeal preferred by the plaintiff by confirming the judgment and decree to the extent of dismissing the suit of plaintiff for relief of declaration in O.S.No.200/1995 dated 30.08.2000 passed by Principal Civil Judge (Jr.Dn.), Madhugiri.
2. Parties shall be referred to as per their status before the trial Court.
3. The suit came to be filed by the plaintiff for the relief of declaration and permanent injunction in respect of the suit schedule property bearing Sy.No.1/117 measuring to an extent -3- NC: 2023:KHC:34654 RSA No. 1341 of 2007 of 3 acres 24 guntas, Badavanahally A.M.Kaval, Dodderi Hobli, Madhugiri Taluk.
4. Brief facts of the case are as under:
The plaintiff was in unauthorised possession of the suit schedule property since last 8 to 10 years. Thereafter, the plaintiff applied for grant of suit schedule property during 1990- 1991. After considering all the required formalities, the Tahsildar, Madhugiri, granted the suit schedule property to the plaintiff under Darkhast in case No.LND RUC. 206/1991-92 and issued saguvali chit on 31.10.1994. By virtue of saguvali chit, the name of the plaintiff has been mutated in revenue records as per M.R.No.76/1994-1995. Eversince, the plaintiff has been in possession and enjoyment of the suit land as a true owner and has planted some Eucalyptus trees and also some ground nuts in the suit schedule property. This being the state of affairs, the officials of defendant Nos.1 and 2 obstructed the plaintiff from cultivation work and interfered with plaintiff's peaceful possession and enjoyment over the suit schedule property. In view of interference and obstruction caused by the defendants, the plaintiff was forced to file the suit for the relief -4- NC: 2023:KHC:34654 RSA No. 1341 of 2007 of declaration and permanent injunction against the defendants.
4.1 On service of notice, the defendants appeared and filed detailed written statement denying the entire averments made by the plaintiff. The defendants have taken a plea that the plaintiff is in unauthorised possession or occupation of the land for last 8 to 12 years and the grant of land made by the Tahsildar is illegal and opposed to law and they have denied that the plaintiff is in lawful possession and enjoyment of the suit schedule property and he has planted Eucalyptus trees or sown ground nuts in the suit schedule property. The defendants also took up the plea that the suit is not maintainable for non issuance of notice under Section 80 of CPC and sought for dismissal of the suit.
4.2 Based on the pleadings of both the parties, the learned trial Judge framed the following issues for consideration:
"1. Whether the plaintiff is the owner and in possession of the suit property?
2. Whether the alleged cause of action is true?-5-
NC: 2023:KHC:34654 RSA No. 1341 of 2007
3. Whether the defendants prove that the suit property is State Forest and they have grown Eucalyptus and other trees therein?
4. Whether the suit is not maintainable as contended in paras. 12 & 13 of Written Statement?
5. What Decree or Order?"
4.3 In order to substantiate the issues and establish their case, the plaintiff got examined herself as PW.1 and two other witnesses namely, PWs.2 and 3 and got marked Exs.P1 to P8. On the other hand, the defendants examined the Range Forest Officer as DW.1 and got marked Exs.D1 to D3 to counter the case of the plaintiff.
4.4 On the basis of pleadings and evidence adduced by the parties and on hearing the arguments of learned counsel for both parties, learned trial Judge did not find any merit in the case made out by the plaintiff and accordingly, dismissed the suit of the plaintiff. Being aggrieved by dismissal of the suit, the plaintiff preferred an appeal in R.A.No.176/2000 before the first Appellate Court. On appearance of the respondents before the first Appellate Court i.e. the appellant herein, the first Appellate Court after re-appreciation, reanalysation and -6- NC: 2023:KHC:34654 RSA No. 1341 of 2007 reconsideration of the entire materials on record, both oral and documentary, framed the following points for consideration:
"1. Whether the Judgment and decree of the Court below are opposed to Law and facts as contended?
2. Whether there are any grounds for this Court to interfere in the impugned Judgment and decree?
3. Whether the plaintiff was entitled for any reliefs before the Court below as sought for?
4. What order?"
4.5 Upon re-appreciation and reconsideration of the entire materials on record both oral and documentary and after giving thoughtful hearing, the first Appellate Court confirmed the judgment and decree of the trial Court with regard to declaratory relief being dismissed and confirmed the same. However, partly decreed the suit by opining that the plaintiff was in possession of the suit schedule property and granted an order of permanent injunction restraining the defendants, their agents, servants or anybody claiming under them from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property. It is this order of the first Appellate -7- NC: 2023:KHC:34654 RSA No. 1341 of 2007 Court partly allowing the appeal and decreeing the suit of the plaintiff by granting the relief of permanent injunction restraining the defendants from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property i.e. put in challenge by raising several grounds and making out certain substantial questions of law for consideration before this Court.
5. Per contra, it is the vehement contention of learned Additional Government Advocate that the judgment of the first Appellate Court is perverse, illegal, arbitrary and without appreciation of the materials evidence placed on record and the same is liable to be set-aside. She further contends that the first Appellate Court has erroneously came to the conclusion that the plaintiff is in peaceful possession of the suit schedule property whereas the defence taken by the defendants with regard to the issuance of saguvali chit by the Tahsildar itself is bad in law and barred under the Karnataka Land Grants Rules, 1969 (for short, 'the Rules), so also, the Karnataka Forest Act, 1963 (for short, 'the Act'). Under the circumstances, she contends that the documents produced by the defendants before the trial Court though appreciated by the trial Court, has -8- NC: 2023:KHC:34654 RSA No. 1341 of 2007 not been appreciated and taken for consideration by the first Appellate Court and has mechanically passed an order without application of mind. Therefore, she contends that the first Appellate Court has committed a factual error and a legal discrepancy and caused miscarriage of justice not applying the correct principles of law despite the same having been placed on record before the trial Court which is available to the first Appellate Court to re-appreciate the same. She further contends that the first Appellate Court was right in confirming dismissal of the suit of the plaintiff for the relief of declaration of title, however, committed serious miscarriage of justice by granting relief of permanent injunction by holding that the plaintiff was in peaceful possession of the suit schedule property.
6. Though the matter has been listed on several dates of hearing and several opportunities were granted to the respondent-plaintiff, there is no representation on behalf of the respondent-plaintiff. The order sheet speaks for itself on the continuous absence of the respondent-plaintiff from several dates, wherein this Court provided opportunity for the respondent to address arguments, even today, there is no -9- NC: 2023:KHC:34654 RSA No. 1341 of 2007 representation on behalf of the respondents. Left with no other alternative, the original suit having been filed in the year 1995, 28 years have gone by, this Court deems it appropriate to dispose of the matter by looking into the records despite absence of the respondent.
7. This Court, vide its order dated 19.09.2014, framed the following substantial questions of law for consideration:
"i) Whether the suit was not maintainable for noncompliance of Section 82 (which is a mistake, it has to be read as Section 80(2)) of CPC, 1908?
ii) Whether the lower Appellate Court was justified in reversing the decree of the trial Court, thereby granting permanent injunction in favour of the plaintiff?"
8. On perusal of the entire records including the pleadings of the plaintiff and the defendants, it is apparently clear that the plaintiff sought for the relief of declaration and permanent injunction against the defendants-State machineries on the ground that the suit schedule property was granted to the plaintiff in the year 1991 by way of darkasth in case No.LND RUC.206/1991-92 and a saguvali chit was issued on
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 31.10.1994, pursuant to which, revenue records were mutated in the name of the plaintiff and that the plaintiff planted eucalyptus tree and started growing ground nuts in the suit schedule property.
9. In order to substantiate this aspect and the issues framed by the trial Court, the plaintiff produced 08 documents including saguvali chit, mutation extract and patta book and examined three witnesses. On careful examination of the same, so also the evidence of other two witnesses being contrary to that of the plaintiff, the trial Court dismissed the entire suit of the plaintiff. It is relevant to note that the trial Court found discrepancy in the statement made by the plaintiff's witness, PW.3 and came to the categorical finding that the plaintiff is not in possession and cultivation of the suit schedule property and neither she planted eucalyptus tree nor grown ground nuts in the suit schedule property.
10. It is also relevant to note that in support of the case of the defendants, DW.1-the Range Forest Officer has produced three documents and the document produced by the defendant-State at Ex.D1 being the Government Order, which
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 cancelled the grant of 2000 acres in Sy.No.1 of Badvanahalli Kaval, Madhugiri Taluk, made in favour of Indiragrama Collective Cooperative Farming Society, Badavanahalli and resumed the land and thereafter, by virtue of the same, the Government has declared 1000 acres of land as a 'Reserve Forest Land'. Pursuant to the declaration of the land as a Reserved Forest Land, the Tahsildar issued a memo dated 25.07.1995 vide Ex.D2 directing the concerned Revenue Inspector not to give effect to the saguvali chit granted in respect of Sy.No.1/578 and further direction to enter the said land as Reserved Forest Land/area in the pahani register. It is also relevant to note that vide Ex.D3, the Assistant Commissioner on 26.03.1998 issued an intimation to the Additional Government Advocate regarding the cancellation of the grant certificate issued in respect of Amruth Mahal Kaval, State Forest Land and the same has not been disputed by the plaintiff in the cross-examination. Therefore, on the basis of these material documents placed by the defendants before the trial Court, the suit of the plaintiff came to be dismissed in toto. The first Appellate Court, after re-appreciating the entire materials, partly decreed the appeal by granting relief of
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 permanent injunction. However, affirmed the dismissal of the suit for the relief of declaration by holding that the plaintiff is in possession and enjoyment of the suit schedule property and therefore, she would be entitled for permanent injunction relief against the defendant-State.
11. To appreciate the substantial questions of law raised by this Court, it is necessary to extract Section 6 of the Forest Act, which reads as under:
"6. Bar of accrual of forest rights.─(1) After the issue of a notification under Section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right, or power to create such right, was vested when the notification was issued; and on such no new house shall be built or plantation formed, no fresh clearings for cultivation or for any other purpose shall be made and no trees shall be cut for the purpose of trade or manufacture except as hereinafter provided. No patta or right of occupancy shall without the previous sanction of the State Government be granted, in respect of such land, and every patta or right of occupancy
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 granted without such sanction shall be null and void.
(2) Nothing in this section shall be deemed to prohibit any act done under the written permission of the Forest Settlement Officer.
(3) No Civil Court shall, between the dates of publication of the notification under Section 4 and of the final notification to be issued under Section 17 entertain any suit to establish any right in or over any land or to the forest produce of any land included in the notification under Section 4."
12. Based on the documents at Exs.D1 to D3 produced by the defendants, the trial Court has come to the conclusion that the plaintiff has not made out any valid case for grant of relief of declaration and permanent injunction and accordingly, dismissed the suit, whereas, the first Appellate Court found favour for grant of relief of permanent injunction in favour of the plaintiff. However, affirmed the judgment and decree with regard to declaratory relief being dismissed by the trial Court. Section 6 of the Act is rightly applicable in the present case, which creates a bar that no right shall be acquired in or over the land comprised in the notification, in such notification, except by way of succession or under a grant or contract in
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 writing, it also contemplates that no patta or right of occupancy shall without the previous sanction of State Government be granted, in respect of such land, and every patta or right of occupancy granted without such sanction shall be null and void. Section 6(3) of the Act further contemplates that no Civil Court shall, between the dates of publication of the notification under Section 4 and of the final notification issued under Section 17 entertain any suit to establish any right in or over any land or to the forest produce of any land included in the notification under Section 4.
13. Learned Additional Government Advocate has produced a notification dated 17/24.08.1936 issued by the Government of His Highness the Maharaja of Mysore, wherein it is stated that the Government Notification dated 31.05.1932, issued under Section 4 of the Forest Regulation, in the matter of the proposed constitution of the Badvanahalli Forest Block in the Madhugiri Taluk and another notification dated 24.08.1936, wherein the Government of His Highness the Maharaja of Mysore was pleased to declare under Section 17 of the Mysore Forest Regulation, XI of 1900, that from 01.10.1936, the area, the boundaries of which are set forth in the Schedule appended
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 to this notification, shall be deemed to be a 'State Forest'. In the said notification, the area is shown as 2884 acres and odd and the name of the block is shown as Badavanahalli block. This document of declaration of area of Badavanahalli Village reserved as State Forest is further modified by virtue of the Government order dated 26.03.1974 at Ex.D1.
14. Therefore, Ex.D1 clearly depicts that the sanction which was accorded to an extent of 2,000 acres of land in Sy.No.1 of Badavanahalli Kaval made in favor of Indiragrama Collective Cooperative Farming Society Ltd., Badavanahalli Village on lease basis came to be cancelled. Appreciating these documents, the trial Court dismissed the suit of the plaintiff. Even otherwise, the Tahsildar issued saguvali chit which is relied on by the plaintiff at Ex.P1 and the same is contrary to the provisions of the Act and prior to the Mysore Forest Regulations. Therefore, the trial Court is right in dismissing the suit of the plaintiff and the first appellate Court is right in dismissing the suit of the plaintiff in respect of the relief of declaration. However, whether the first Appellate Court having granted the relief of permanent injunction on the basis of the revenue documents placed on record requires to be interfered
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 by this Court in the second appeal, is a question of law which would have to be considered by this Court.
15. As per the notification of the Government of his highness the Maharaja of Mysore dated 17-24/08/1926, it is declared that the suit schedule property is coming within Badavanahalli Forest Block in Madhugiri Taluk and it is "deemed to be State Forest" and apparently cannot be disputed. Thereby, Ex.D1 produced by the defendants is a Government Order for having cancelled 2,000 acres of land in S.No.1 of Badavanahalli Kaval, Madhugiri Taluk made in favour of Indiragrama Collective Cooperative Farming Society, Badavanahalli and having resumed the land vide order dated 26.03.1974 cannot be disputed. Based on these two notifications, the land which was granted in favour of the plaintiff by way of saguvali chit by the Tahsildar came to be cancelled rightfully. Section 25 of the Rules reads as under:
"25. Cancellation of grant.─(1) Any grant of land made under these rules shall be liable to be cancelled and the land resumed by the authority which granted it, where the grant has been obtained by making false or fraudulent representations or is contrary to these rules:
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 Provided that no such cancellation shall be made without giving the grantee an opportunity of being heard.
(2) Where any violation of the condition of grant or lease of land comes or is brought to the notice of a Revenue Officer, such officer shall forthwith report the violation to the officer competent to cancel the grant or lease as the case may be. The competent officer shall after giving the grantee or lessee an opportunity to be heard cancel the grant and resume the land to the Government free from all encumbrances."
16. In view of the documents placed on record at Exs.D1 to D3 and the notification of the Government of his highness the Maharaja of Mysore dated 17-24.08.1936, which precedes Ex.D1, it is apparently clear that the entire land comes within the Village of Badavanahalli and the same has been declared to be a Reserved State Forest. Therefore, now the question arises as to whether the finding of the first Appellate Court with regard to possession of the plaintiff on the basis of the revenue entries pursuant to the grant made by the Tahsildar and issuance of saguvali chit would amount to lawful and settled possession. In view of issuance of Exs.D2 and D3, it cannot be said that the plaintiff is in lawful and settled possession of the
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 suit schedule property measuring to an extent of 3 acres 24 guntas in Sy.No.1/117 of Badavanahally, A.M.Kaval, Dodderi Hobli, Madhugiri Taluk. These aspects have been thoroughly considered by the learned trial Judge and a very well reasoned order has been passed dismissing the suit of the plaintiff.
17. The first Appellate Court has committed a serious error in not appreciating the material documents placed on record including the law on the point. Therefore, the substantial question of law framed by this Court is proper for appreciation, as granting of permanent injunction by the first Appellate Court against the finding rendered by the trial Court is contrary to the material placed on record, the Government notification and the provisions of the Act and the Rules.
18. With regard to the substantial question of law of non- issuance of notice under Section 80(2) of CPC would render the suit as not maintainable, may not be correct as an application is filed under Section 80(2) of CPC and the same has been allowed.
19. I am also in agreement with the judgment of the Coordinate Bench of this Court, relied on by learned Additional
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 Government Advocate, in the case of Dy. Conservator of Forest v. T.K.Thammanna Gowda reported in 2011(3) Kar.L.J.556, wherein at paras-10 and 11, it is held as under:
"10. From the evidence of D.W. 1 and the documents marked through him, it is clear that, the suit property is part of reserve forest. When the suit land is part and parcel of the reserve forest as is evident from the Gazette Notification at Ex. D. 3, the entry in the revenue record at Ex.P. 2/RTC is of no consequence and further, mere temporary saguvali chit (Ex. P. 8) did not confer any title on the plaintiff in respect of the suit land. The revenue authorities have no competence to deal with the property which was reserved to the forest department. The plaintiff has not derived any valid title in respect of the suit property to declare him as the owner of the property. Since the plaintiff has failed to establish that according to Ex. P. 8, he was delivered with the property and he continued to hold and enjoy the same lawfully, he has been rightly denied the relief of permanent injunction. The plaintiff has failed to prove that he is the absolute owner of the property and that he is in actual possession and enjoyment of the same and that the defendants obstructed his possession and enjoyment of suit property. The evidence on record would clearly establish that defendants have
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 proved that suit property forms part and parcel of 220 acres of land in Vasthare Village/Hobli Survey No.369, which a is a reserve forest and grant of any portion of the land by Revenue Authorities is illegal and has not conferred any rights on the plaintiff.
11. The view I have taken, gets support from the decision of the Apex Court in the case of State of Karnataka v I.S.Nirwane Gowda. In the said case, plaintiffs had claimed title to the suit lands on the basis of saguvali chits given by the Tahsildar and filed suit for declaration of title and permanent injunction. The defence of the defendants was that, the suit land was forest land and the revenue department had no right to grant and issue saguvali chits, to the plaintiff. The Trial Court accepted the case pleaded by the defendants and concluded that the suit lands was forest land and revenue department has no right to grant saguvali chits to the plaintiffs. The said judgment and decree was affirmed by the Appellate Court, which made reference to Gazette notification, showing the lands were included in the said Reserve Forest and as per Ex. D. 2, the statement of land taken for Indavara in Hukkunda Village, which was spoken by the Range Forest Officer. However, in second appeal, the said findings were reversed by raising a presumption on the basis of the entries in the
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 revenue records. The said judgment/decree when questioned before the Apex Court, while setting aside the impugned judgment/ decree and restoring that of the First Appellate and Trial Courts, it has been held as follows.─ "When the lands were included in reserve forest, the entries in the revenue records were of no consequence and furthermore, saguvali chit do not confer title on the suit land. This apart, the revenue authorities were not competent to deal with the property which was the part of reserve forest".
In view of the above discussion, it has to be held that, the Trial Court has committed error in declaring the plaintiff to be the owner of three acres of land based on saguvali chit/EX. P. 8 and in directing him to approach the authority which granted the land to locate the extent of three acres. Since the lawful grant of suit property has not been established, the judgment/decree of the Trial Court, to the extent of holding that the plaintiff has right to an extent of three acres of land is wholly erroneous and illegal. Without the plaintiff establishing his possession and enjoyment of the suit property, a mere declaratory decree could not have been passed. However, the Trial Court is justified in dismissing the suit of the plaintiff for
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 permanent injunction, since the plaintiff has failed to identify the location of suit property and prove his lawful possession and enjoyment thereof.
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20. In view of the above discussions and finding on the question of non-appreciation of the material evidence on record and the law pertaining to Section 6 of the Act and Rule 25 of the Rules, the first Appellate Court is not right in reversing the decree of the trial Court by granting relief of permanent injunction in favour of the plaintiff, which is erroneous and the same requires to be set-aside. Therefore, the substantial questions of law are answered in favour of the appellants- defendants. Accordingly, I proceed to pass the following:
ORDER
i) The appeal is allowed;
ii) The judgment and decree dated 02.11.2006 passed in R.A.No.176/2000 by the first Appellate Court granting relief of permanent injunction in favour of the plaintiff by setting aside the judgment and decree of the trial Court is hereby set-aside;
iii) Consequently, the judgment and decree dated 30.08.2000 passed in O.S.No.200/1995 by the trial
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NC: 2023:KHC:34654 RSA No. 1341 of 2007 Court is affirmed, as such, the suit of the plaintiff is dismissed.
Sd/-
JUDGE CPN/LB