Appealed against lower courts' dismissal of a suit for injunction claiming ownership of land. Court affirmed lower courts' view that land is forest land and entitled appellant to sue for declaration instead.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST 2021
BEFORE
THE HON’BLE MR. JUSTICE E.S.INDIRESH
R.S.A. No.890/2014 (INJ)
BETWEEN:
SRI. KURLAPPA S/O SRI MULABAGALA BOVI AGED ABOUT 60 YEARS AGRICULTURIST. R/O MARABALLI VILLAGE SETTIHALLI POST KASAB HOBLI. MADHUGIRI TALUK.
... APPELLANT
(BY SRI G.S. BALAGANGADHAR, ADVOCATE)
AND:
... RESPONDENTS
(BY SMT. H.R. ANITHA, HCGP FOR R1 TO R3)
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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 30.01.2014 PASSED IN R.A.NO.104/2009 ON THE FILE OF THE COURT OF THE ADDL. SENIOR CIVIL JUDGE & JMFC, MADHUGIRI, DSMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 27.07.2009 PASSED IN O.S.NO.103/2008 ON THE FILE OF THE COURT OF THE PRINCIPAL CIVIL JUDGE (JR.DN.), MADHUGIRI.
THIS R.S.A. COMING ON FOR ORDER THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
J U D G M E N T
This Regular Second Appeal is preferred by the plaintiff against the judgment and decree dated 30.01.2014 passed in R.A.No.104/2009 on the file of the Additional Senior Civil Judge and JMFC, Madhugiri confirming the judgment and decree dated 27.07.2009 passed in O.S.No.103/2008 on the file of the Principal Civil Judge (Jr. Dn.,) and JMFC, Madhugiri, dismissing the suit of the plaintiff.
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situated at Settihalli Village, Madhugiri Taluk. It is further averred in the plaint that the suit schedule property was granted to the plaintiff by the Government vide Grant Certificate dated 25.06.1966 and thereafter, the name of the plaintiff was incorporated in the revenue records and he is in possession of the suit schedule property. It is further stated that the defendants, without any right or title insofar as property in question, are interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff and as such, the plaintiff was constrained to file O.S.No.103/2008 on the file of the trial Court.
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the same, the defendants sought for dismissal of the suit.
consideration.
1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?
2. Whether the plaintiff proves that the defendants are interfering with his peaceful possession and enjoyment of the suit schedule property?
3. Whether the plaintiff is entitled for the relief sought?
4. What order or decree?
support of his case, he examined two more witnesses as P.Ws.2 and 3 and produced 13 documents and same
were marked as Exs.P1 to 13. On the other hand, the defendants have examined its Officer as D.W.1 and
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produced 4 documents and the same were marked as Exs.D1 to 4.
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learned counsel appearing for appellant that both the Courts below have not properly appreciated Ex.P.1, which is the Grant Certificate issued by the Tahasildar, Madhugiri in favour of the plaintiff. He further contended that all the revenue records would establish the fact that the schedule property stands in the name of the appellant. However, both Courts below without appreciating the materials on record, particularly the Saguvali Chit produced at Ex.P.1, passed the impugned judgments and decree, which are required to be interfered with in this appeal. He further contended that in view of the fact that there is a discrepancy between the Revenue Officers and the Officials of the Department of Forest, the appellant has been put to hardship and in this regard, he submitted that the documents produced by the plaintiff would clearly establish the fact that the plaintiff is the absolute owner in possession of land and thereby, the defendants, without any semblance of right and title, are interfering with the suit schedule property.
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the defence denying the title of the plaintiff in paragraph
No.5 and 6 of the written statement, read as under;
“5. The land Sy.No.46 of Settihally Village is a Forest land and it is notified in the Notification bearing G.O.No.G 9822-5FT 247,31-2 dt.10-6-1938 and it is treated as ‘Janakal Forest Block’, measuring 203 acres 20 guntas and the Khata has been mutated in the name of the Forest Department and reserved for Forest. Khata and Pahani of the suit property stands in the name of the ‘State Forest’. The boundaries in the schedule are not tallied with the grant Certificate produced by the plaintiff.
Government that the land bearing Sy. No.46 of Shettihalli Village is a Forest Land and notified in the
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Notification dated 10.06.1938 and also, I have also noticed that the Notification issued by the Government dated 10.06.1938 would indicate that 203 acres 20 guntas of land in Shettihalli Village has been marked as Forest Land and in this regard, defendants have examined their officer as D.W.1 and produced documents as per Exs.D.1 and D.2. Though the learned counsel appearing for the appellant strenuously contended that land has been granted by the Revenue Authorities, however, the contention raised by the learned HCGP is that the land is a forest land. In view of the law declared by the Hon’ble Apex Court in the case of the ANATHULA SUDHAKAR VS. P.BUCHI REDDY (DEAD) BY LRS AND OTHERS reported in (2008) 4 SCC 594 and in view of the defence taken by the defendants disputing the title of the plaintiff and as such, the plaintiff ought to have converted the relief in the plaint as one for declaration and therefore, the submission made by the learned HCGP is to be accepted.
have properly appreciated the materials on record and
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arrived at a conclusion that the land in question is a Forest Land and therefore, the Tahasildar has no power to grant the land which is a part of the Forest Land. In that view of the matter, since both Courts below, on facts, having concurrently held against the plaintiff, in my considered opinion, the appeal is devoid of merits and the appellant has not made out a case to frame any substantial question of law as required under Section 100 of CPC.
Accordingly, the appeal is dismissed .
Liberty is reserved to the plaintiff to file suit seeking relief of declaration.
The dismissal of this appeal shall not preclude the plaintiff to urge all the contentions while filing the suit for declaration, if so advised.
Sd/JUDGE
NBM
2 issues framed by the court
Whether the appellant has made out a case to frame any substantial question of law required under Section 100 of CPC?
Whether the appellant ought to have converted the relief for permanent injunction into declaratory relief given that the land is forest land?
Colour shows how this judgement treated each authority
Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by Lrs and OthersReferred¶56
(2008) 4 SCC 594 · Who else cites this
Sri. Kurlappa S/O Sri Mulabagala Bov
The Chief Secretary, Government of Karnataka
The District Conservator of Forest, Tumkur
The Range Forest Officer, Madhugiri
E.S. Indires
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
