Dismissed

Smt.Mary Juje D"Souza v. the State of Karnataka

Karnataka HC9 Oct 2023RSA/895/2015

Case brief

AI extract

What is this about?

In a regular second appeal regarding an injunction suit over alleged unauthorized possession of forest land, the High Court upheld the dismissal of the appeal. The Court held that Section 2 of the Forest (Conservation) Act, 1980 invalidates regularization of reserved forest land without Central Government approval, rendering the possession illegal and ineligible for civil protection.

What the court decided

AI extract

Smt.Mary Juje D"Souza Vs the State of Karnataka — Property and Title | Karnataka HC (2023)

¶1

NC: 2023:KHC:36681 RSA No. 895 of 2015

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 9^TH DAY OF OCTOBER, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE ASHOK S.KINAGI

¶7

REGULAR SECOND APPEAL NO. 895 OF 2015 (INJ)

¶8

BETWEEN:

¶9

SMT. MARY JUJE D"SOUZA AGED ABOUT 81 YEARS, AGRICULTURIST & HOUSE HOLD WORK, R/A NEAR FOREST LODGE, JOG FALLS, SAGAR TALUK, SHIVAMOGGA DISTRICT. …APPELLANT

¶10

(BY SRI. RAVI G SABHAHIT., ADVOCATE)

¶11

AND:

¶12

THE STATE OF KARNATAKA REP. BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, Digitally signed BANGALORE by SUNITHA GANGARAJU 2. THE DEPUTY COMMISSIONER, Location: High Court of SHIVAMOGGA, Karnataka HAVING OFFICE AT SHIVAMOGGA – 577 201 3. THE ASSISTANT COMMISSIOSNER SAGAR, HAVING OFFICE AT SAGAR – 577 401 4. THE TAHSILDAR SAGAR, HAVING OFFICE AT SAGAR – 577 401 …RESPONDENTS (BY SRI. MAHANTESH SHETTAR, AGA)

¶13

2 - NC: 2023:KHC:36681 RSA No. 895 of 2015

¶14

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.01.2015 PASSED IN R.A 186/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, SAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AN DECREE DATED 05.07.2011 PASSED IN O.S NO.18/2009 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, SAGAR.

¶15

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶16

JUDGMENT

¶17

This second appeal is filed by the appellant challenging the judgment and decree dated 29.01.2015, passed in R.A.No.186/2011 by the Court of Fast Track at Sagar and confirming the judgment and decree dated 05.07.2011 passed in O.S.No.18/2009 by the Additional Senior Civil Judge and JMFC, Sagar.

¶18

For the sake of convenience, parties are referred

¶19

to as per their ranking before the trial Court. The appellant is the plaintiff and respondent Nos.1 to 4 are the defendant Nos.1 to 4.

¶20

3 - NC: 2023:KHC:36681 RSA No. 895 of 2015

¶21

The brief facts leading rise to filing of this appeal are as under:

¶22

The plaintiff filed a suit for permanent injunction restraining the defendants from interfere into the peaceful possession. It is the case of the plaintiff that the husband of the plaintiff occupied 02 acres of land in Sy.No.1 unauthorizedly about 60 years back and his name was entered in the RTC extract. He further encroached upon 02 acres which is shown as 'B' in the hand sketch. Again, he had encroached 01 acre of land, which is shown as 'C' in the rough sketch. Therefore, husband of the plaintiff was in unauthorized possession of 5 acres in the land bearing Sy.No.1 situated at Kargal Grama, Bharagi Hobli at Sagar Taluk. He had improved the said suit land by investing huge amount. He also applied for regularization of the said land during his life time. He died during the year 2002 leaving behind the plaintiff and his children. The plaintiff being elder member of the family, is managing the suit schedule property. The plaintiff was paying land revenue in respect of suit land. The plaintiff is legally entitled for

¶23

¶24

NC: 2023:KHC:36681 RSA No. 895 of 2015

¶25

grant of suit schedule property. During the 3^rd week of June 2009 defendant Nos.3 and 4 along with their supporters, threatened the plaintiff about forcible dispossession and also removed a portion of the fence around the suit property illegally. Hence prayed to decreed the suit.

¶26

Defendant No.4 filed written statement contending

¶27

that the suit is not maintainable and description of the property given by the plaintiff is not correct. It is unidentifiable. Land bearing Sy.No.1 is consisting of 623 acres and 38 guntas and the plaintiff has not furnished the boundaries. It is denied that the plaintiff is in actual possession over the suit schedule property. It is contended that the husband of the plaintiff filed Form No.53 for grant of 03 acres only in land bearing Sy.No.1 before the unauthorized Land Grant Committee, Sagar Taluk and the said application came to be dismissed vide order dated 19.04.2003. The plaintiff has not challenged the said order. The said order has attended the finality. It is denied

¶28

5 - NC: 2023:KHC:36681 RSA No. 895 of 2015

¶29

that the defendants tried to interfere into the peaceful possession. Hence, on these grounds, he sought for dismissal of the suit.

¶30

The Trial Court, on the basis of the above said pleadings, framed the following issues:

¶31

1. Whether the plaintiff proves that she is in possession and enjoyment of the suit schedule property as on the date of suit?

¶32

1. Whether the plaintiff proves the alleged interference by the defendants?

¶33

1. Whether suit bad for non-issuance of notice under Section of CPC?

¶34

1. What decree or order?

¶35

In order to prove the case of the plaintiff, the plaintiff examined herself as PW-1 and got examined two witnesses as PW-2 & PW-3 and got marked 58 documents as Exs.P1 to P58. Defendant No.4 was examined as DW-1

¶36

and got marked 06 documents as Exs.D1 to D6. The trial Court after considering the oral and documentary evidence of the parties, answered issue No.1 in negative, issue No.2

¶37

6 - NC: 2023:KHC:36681 RSA No. 895 of 2015

¶38

does not survive for consideration and issue No.4 as per the final order and consequently, dismissed the suit of the plaintiff with costs by judgment dated 05.07.2011. The plaintiff aggrieved by the judgment and decree passed by the trial Court, preferred appeal in R.A.No.186/2011 on the file of Fast Track Court at Sagar.

¶39

The First Appellate Court, after hearing the

¶40

parties, has framed the following points for consideration:

¶41

1) Whether the possession of plaintiff over the suit property deserved to be protected?

¶42

2) Whether the trial Court is justified in dismissing the suit?

¶43

3) Whether appellant has made any grounds for this Court to interfere in the judgment and decree passed by the trial Court?

¶44

4) What order?

¶45

The First Appellate Court, on re-appreciating the

¶46

oral and documentary evidence placed on record by the parties, answered point Nos.1 and 3 in negative and point No.2 in affirmative and consequently, dismissed the appeal

¶47

7 - NC: 2023:KHC:36681 RSA No. 895 of 2015

¶48

filed by the plaintiff and confirmed the judgment and decree passed by the trial Court. The plaintiff, aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.

¶49

This court admitted the appeal on the following substantial question of law :

¶50

1) Whether the courts below were justified in dismissing the suit after recording a finding that the plaintiff has been in possession and enjoyment of the suit schedule property?

¶51

2) Whether the judgment and decree passed by the courts below is to be set aside in view of circular issued by Government of Karnataka in No.APJ 45 FGL 2015 dated 13.03.2015?

¶52

Heard learned counsel for the plaintiff and the learned Additional Government Advocate for the

¶53

respondents.

¶54

Learned counsel for the plaintiff submits that both the Courts below have recorded a finding that the plaintiff is in possession of the suit schedule property and

¶55

¶56

NC: 2023:KHC:36681 RSA No. 895 of 2015

¶57

the Courts below have recorded a finding in regard to possession over the suit schedule property. The trial Court would have granted relief of permanent injunction. On the contrary, dismissed the suit of the plaintiff. He submits that the First Appellate Court without re-appreciating the material on record, simply confirmed the judgments and decrees passed by the courts below. Hence, on these grounds, he submits that as per circular issued by Government of Karnataka dated 13.03.2015, the respondents ought to have regularize the possession of the plaintiff over the suit schedule property. Hence, on these grounds, he prays to allow the appeal.

¶58

Per contra , learned Additional Government

¶59

Advocate submits that the plaintiff is in unauthorized possession of the suit schedule property. Further, he submits that as per circular dated 13.03.2015, the respondents have jurisdiction to regularize only if the parties are in possession of the land less than 03 acres. Admittedly, the plaintiff is in possession of more than 03

¶60

9 - NC: 2023:KHC:36681 RSA No. 895 of 2015

¶61

acres. Hence, the said circular is not applicable to the present case on hand. He submits that during the pendency of this appeal, the respondents have already taken the possession of the suit schedule property from the plaintiff. In view of the same, nothing survives for consideration in this appeal. Hence, on these grounds, he prays to dismiss the appeal.

¶62

Substantial questions of law No.1 : It is the

¶63

case of the plaintiff that the husband of the plaintiff was in possession of the suit schedule property unauthorizedly and he submitted an application for regularization of his possession. The said application came to be rejected. Further, the Government has issued a circular dated 13.03.2015. Pursuant to the said circular, the plaintiff has submitted an application for regularization of her possession. Further, it is the case of the plaintiff that the defendants tried to interfere into the peaceful possession and enjoyment of the suit schedule property. The plaintiff in order to prove her possession, got examined herself as

¶64

10 - NC: 2023:KHC:36681 RSA No. 895 of 2015

¶65

PW.1 and got marked the documents as Exs.P1 to P58. The records produced by the plaintiff, it goes to show that the plaintiff is in possession of the suit schedule property. Further, though the courts below have recorded the findings that the plaintiff is in possession of the suit schedule property. Admittedly, the suit schedule property is the forest land. The State Government has no right to grant the forest land without the consent of the Government as per Section 2 of the Forest (Conservation) Act, 1980, (for short 'the Act'), which reads as under:

¶66

"2. Restriction on the dereservation of forests or use of forest land for non-forest purpose .—

¶67

Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing—

¶68

(i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

¶69

11 -

¶70

NC: 2023:KHC:36681 RSA No. 895 of 2015

¶71

(ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government;

¶72

(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.] [Explanation.—For the purposes of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for—

¶73

(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;

¶74

(b) any purpose other than reafforestation,

¶75

but does not include any work relating or ancillary to conservation, development and management of forests and wild life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams waterholes, trench

¶76

12 -

¶77

NC: 2023:KHC:36681 RSA No. 895 of 2015

¶78

marks, boundary marks, pipelines or other like purposes."

¶79

Any area reserved for forest, the State Government or other authorities except with the prior approval of the Central Government permit to use forest land for non-forest purpose.

¶80

Admittedly, in the instant case, both the courts below have recorded the finding of fact that the plaintiff is in possession of the property which is admittedly a reserved forest and by placing a reliance on Section 2 of the Act the trial Court held that the State Government has no jurisdiction to regularize the suit land in favour of the plaintiff. The possession over the forest land without the prior approval of the Central Government can be considered as illegal and such a possession cannot be protected by the Civil Court. Further, the First Appellate Court on re-appreciation of the material on record held that the possession of the plaintiff is illegal and her possession could not be protected. Both the courts below

¶81

13 - NC: 2023:KHC:36681 RSA No. 895 of 2015

¶82

were justified in dismissing the suit on the ground that the State Government without prior approval from the Central Government permitted the plaintiff to use the reserved forest land for non-forest purpose. The application of the plaintiff for regularization has not been considered by the State Government till today. Hence, the possession of the plaintiff cannot be protected in view of Section 2 of the Act. Accordingly, the courts below were justified in dismissing the suit of the plaintiff. In view of the above discussion, I answer substantial questions of law No.1 in affirmative.

¶83

16. Substantial question of law No.2 : It is the

¶84

case of the plaintiff that the Government has issued a circular dated 13.03.2015, wherein the Government decided to regularize the unauthorized occupancy. From the perusal of the records, the plaintiff has filed an application for regularization. The said application is still pending. The circular dated 13.03.2015 disclose that a person is entitled for regularization, who is in possession

¶85

14 -

¶86

NC: 2023:KHC:36681 RSA No. 895 of 2015

¶87

of the land less than 3 acres. Admittedly, in the instant case, the plaintiff is in possession of more than 3 acres. Hence, the said circular is not applicable to the plaintiff's case. In view of the above discussion, I answer substantial question of law No.2 in negative.

¶88

Learned Additional Government Advocate

¶89

submits that the defendants have already taken the possession of the suit schedule property from the plaintiff on 07.04.2015. Now, the plaintiff is not in possession of any portion of the suit land. The said fact has not been disputed by the learned counsel for the plaintiff. The plaintiff has not sought for restoration of possession. In view of the same, nothing survives for consideration in this appeal. Hence, the courts below were justified in passing the impugned judgments. Hence, I do not find any grounds to interfere with the impugned judgments and decrees. However, if any application of the plaintiff is pending for regularization, the Regularizing Committee is directed to consider the application of the plaintiff on

¶90

15 -

¶91

NC: 2023:KHC:36681 RSA No. 895 of 2015

¶92

merits without being influenced by any observations made in this judgment.

¶93

In view of the aforesaid facts and circumstances,

¶94

I proceed to pass the following:

¶95

ORDER

¶96

The appeal is dismissed.

¶97

The judgment and decree passed by the

¶98

courts below are confirmed.

¶99

No order as to the costs.

¶100

Sd/JUDGE

¶101

SSB

Smt.Mary Juje D"Souza v. the State of Karnataka

Case brief

What is this about?

What the court decided

Smt.Mary Juje D"Souza v. the State of Karnataka

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mr. Prajwal K. B. Vs Rajiv Gandhi University of Health Sciences

Smt Siddamma Vs Sri Yallakkigowda

Rangappa @ Attigunda Rangappa Vs H Prameshwarappa

Sree Deepthi Educational Trust (Regd.), Vs the State of Karnataka

Sri. Ramappa Vs Sri. Gangojirao

Shivanna @ Vs Nanjegowda