Allowed

Sadananda S/O Mankali Hosakatta v. Aravind S/O Bommayya Hosakatta

Karnataka HC3 Jul 2024RSA/2410/2007

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Karnataka set aside the First Appellate Court's judgment granting a permanent injunction to the plaintiff. The High Court held that the plaintiff failed to prove the genuineness of the fishing license and the specific location of the right because the issuing authority was neither examined nor impleaded as a party.

What did the court decide?

Appeal allowed, First Appellate decree set aside, Trial Court decree affirmed, parties to bear costs.

Sadananda S/O Mankali Hosakatta Vs Aravind S/O Bommayya… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO. 2410 OF 2007 (INJ-)

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BETWEEN:

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SADANANDA S/O MANKALI HOSAKATTA AGED ABOUT 40 YEARS,

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VINAYAK S/O MANKALI HOSAKATTA AGED ABOUT 30 YEARS,

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DANU

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S/O NARAYAN HOSAKATTA AGED ABOUT 42 YEARS,

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Digitally signed by SAROJA HANGARAKI

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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DAYA

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S/O NARAYAN HOSAKATTA AGED ABOUT 38 YEARS,

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PARAMESHWAR S/O NARAYAN HOSAKATTA, AGED ABOUT 34 YEARS,

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UDAY S/O NARAYAN HOSAKATTA AGED ABOUT 30 YEARS,

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ISHWAR

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S/O JATTI HOSAKATTA AGED ABOUT 59 YEARS,

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2 - NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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ALL ARE MAJOR, AGRICULTURISTS, RESIDENTS OF HOSAKATTA, TAL: KUMTA, U.K.DISTRICT-581343.

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…APPELLANTS

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(BY SRI VIJAYKUMAR B. HORATTI, ADVOCATE FOR SRI RAVI G.SABHAHIT, ADVOCATE)

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AND:

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ARAVIND S/O BOMMAYYA HOSAKATTA, AGED : MAJOR (CORRECT AGE NOT KNOWN TO APPELLANT) R/O HOSAKATTA, TAL: KUMTA, U.K.DISTRICT-581343.

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…RESPONDENT

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(BY SRI S.G.KADADAKATTI, ADVOCATE FOR SRI GANAPATHI S. SHASTRI, ADVOCATE)

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THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE

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THE IMPUGNED JUDGMENT AND DECREE DATED 25.06.2007 PASSED BY THE CIVIL JUDGE (SR.DN.) KUMTA, IN R.A.NO.233/2006, REVERSING THE JUDGMENT AND DECREE DATED 25.07.2005 PASSED BY THE CIVIL JUDGE (JR.DN.) KUMTA, IN O.S.NO.66/1997, AND THE SUIT FILED BY THE PLAINTIFF MAY BE DISMISSED, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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JUDGMENT

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The present second appeal is filed by the defendants under Section 100 of the Code of Civil Procedure, 1908¹ challenging the judgment and decree dated 25.07.2007 passed in R.A.No.233/2006 by the Court of Civil Judge (Senior Division) Kumta² .

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The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.

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It is the case of the plaintiff that, in order to enable him to catch the fishes in the Aghanashini River at ‘Kesarmane’, he obtained a licence from the Officer of Port, Honnavar since 1981-82, and the said license is being renewed every year. It is the further case of the plaintiff that in view of grant of licence, he has been carrying out fishing activities at the said River where sluice gates have been fixed by the Government.

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘First Appellate Court’

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4 - NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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It is the further case of the plaintiff that, except

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him, no other person is permitted to carry out the fishing activities in the said place. That the defendants have been obstructing the fishing activity being carried out by the plaintiff and the defendants have also not obtained any licence or permission from the Port authority to carry out fishing. That a case under Section 100 of the Code of Criminal Procedure³ was also registered against the defendants and tried on the file of the Executive Magistrate, Kumta, in view of the obstruction made to the plaintiff. Since the defendants have obstructed the fishing activities carried out by the plaintiff, he filed a suit for injunction.

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The defendants entered appearance in the said suit through a counsel and filed a detailed written statement denying the case of the plaintiff. The defendants have specifically denied the rough sketch produced along with the plaint where the plaintiff is

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3 Hereinafter referred to as the ‘Cr.P.C’

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5 - NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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carrying out the fishing activities. The defendants have also specifically denied with regard to any licence being issued by the Port authority.

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It is further case of the defendants that, ever

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since their ancestors, they have been carrying out fishing activities particularly at the place where the sluice gates have been fixed and they have been carrying out the fishing activities since their birth. It is further specifically contended that, the plaintiffs have filed a suit without making the statutory authority as a party to the suit and hence, they have sought for dismissal of the suit.

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Consequent to the pleadings of the parties, the trial Court framed the following issues:

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1) Whether the Plaintiff proves that he is fishing at 'ABCD' sluice gate put across Aghanashini river near Basu gazani lawfully as on the date of the filing of the suit ?

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2) Whether the Plaintiff proves the alleged interference caused by the defendants in his fishing as alleged in the plaint ?

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3) Whether the Plaintiff is entitled to the relief of permanent injunction which he has claimed ?

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4) What order/decree?

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The plaintiff examined himself as PW1. Ex.P.1

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to Ex.P.3 have been marked in evidence. Defendant No.5 examined himself as DW.1. Two witnesses were examined as DW.2 and DW.3. No documentary evidence have been produced by the defendants. The Trial Court vide its judgment and decree dated 25.07.2005 dismissed the suit.

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Being aggrieved, the plaintiff preferred R.A No.233/2006. The defendants entered appearance before the First Appellate Court and contested the said proceedings. The First Appellate Court framed the following points for consideration:

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1) Whether the judgment and decree passed by the Learned Civil Judge (Jr.Dn.), Kumta, in 0.S.No.66/1997 dated 25-7-2005 dismissing the suit of the plaintiff is perverse, capricious, arbitrary and erronious on the grounds alleged in the appeal memo?

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2) Whether the judgment and decree of the trial court calls for interference by this court ?

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3) What order?

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NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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The First Appellate Court, upon a re-

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appreciation of the oral and documentary evidence on record, vide its judgment and decree dated 25.06.2007 allowed the appeal and passed the following order:

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“The appeal is allowed.

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The Judgment and decree of the trial court is hereby set aside.

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The defendants or any persons on their behalf are hereby restrained by an order of permanent injunction from causing obstruction to the plaintiff for fishing in the area shown as ‘A B C D’ in the handsketch map near the Jantradi, by putting stakes and net.

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The parties to bear their own costs.

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Draw decree accordingly.”

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11. Being aggrieved the present second appeal is

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filed. This Court vide order dated 31.05.2010, admitted

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the above appeal and framed the following substantial questions of law:

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1) Whether the lower Appellate Court is justified in decreeing the suit when Ex.P.3 is proved to be a forged document?

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8 - NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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2) Whether the lower Appellate Court is justified in decreeing the suit without considering the provisions of Section 67 of the Karnataka Land Revenue Act?

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Learned counsel for the appellant/ defendants

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contends that, the defendants having denied the license as claimed by the plaintiff and hence, the plaintiff ought to have examined the Officer of the authority which granted the license to the plaintiff to prove the same. Further he contends that, the plaintiff has not made the Port Authority as a party to the suit and hence, the suit is not maintainable. He further contends that, there are various discrepancies and over writings in the license (Ex.P.3) and in the absence of the plaintiff examining the person who issued the licence, it cannot be held that, the plaintiff has proved that, he has a license to carry out the fishing activity. He further contends that, having regard to Section 67 of the Karnataka Land Revenue Act⁴ , the State Government being the owner of all public waterways, the plaintiff ought to have proved that, he is entitled to carry

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4 Hereinafter referred to as ‘the Act’

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9 - NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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out the fishing activities. He further contends that, the Trial Court had appropriately appreciated the oral and documentary evidence on record and dismissed the suit which ought not to have been interfered with by the First Appellate Court. Hence, he seeks for allowing of the above appeal and setting aside of the judgment and decree passed by the First Appellate Court.

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Per contra, learned counsel for the respondent/ plaintiff justifies the judgment and decree passed by the First Appellate Court and submits that, the plaintiff having granted a license to carry out the fishing activities, the defendants without any authority or licence are interfering with the fishing activities being carried out by the plaintiff. He further submits that, the licence (Ex.P.3) is a public document and the plaintiff has produced the same and it cannot be held that the plaintiff is not entitled to carry out the fishing activities. He further submits that, the defendants are interfering with the fishing activities being carried out by the plaintiff who has been duly authorised

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10 - NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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to do so. He submits that, the First Appellate Court has rightly re-appreciated all aspects of the matter and decreed the suit and the decree of the First Appellate Court ought not to be interfered with by this Court in the present second appeal.

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The submissions of both the learned counsels

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have been considered and the materials on record including the records of Trial Court and First Appellate Court have been perused.

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It is forthcoming that, the plaintiff is claiming to have exclusive fishing rights on the Aghanashini River at the place called ‘Kesarmane’ immediately where the sluice gates are located. In order to prove the aspect that he is solely entitled to carry out the fishing activities, the plaintiff is relying on the license issued by the Port Officer, Honnavar (Ex.P.3). In order to demonstrate the place where he is carrying out the fishing activities, the plaintiff relied upon the sketch issued by the Port Conservator,

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11 -

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NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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Tadadi (Ex.P.2). However, the plaintiff has not examined the Officer who has issued Ex.P.2 and Ex.P.3.

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The Trial Court while appreciating the license-

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Ex.P.3 has noticed the following aspects:

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i) The Ex.P.3 is a duplicate one and no original licence is forthcoming for having been issued in the year 1980-81;

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ii) The word ‘Basu Gajani’ has been written in hand and the same creates serious doubt with regard to genuineness of the document;

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iii) Except Ex.P.3, the plaintiff has not produced any other supporting document for having issued such type of licence issued to any other person/s permitting them to put up stakes for fishing in any other River;

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iv) The contents of Ex.P.3 does not disclose anything with regard to provisions of any Act

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12 -

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NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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or Rules under which the same has been issued;

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v) The conditions observed in Ex.P.3 clearly points out that the same is only in respect of planting of stakes within Port limits with conditions;

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vi) The license may be in respect of Rivers which are coming within Port limits;

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vii) The burden is cast on the plaintiff to establish the fact that the place of fishing is within the Port limits and that he has been permitted to put the stakes for fishing.

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The Trial Court has further recorded a finding that, the plaintiff has not placed any receipts for having paid any fees for the issuance of licence. Further, that the plaintiff has not examined any witness for having acted upon the terms and conditions of the license produced at Ex.P.3. Hence, the Trial Court has recorded a finding that,

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in the absence of material documents it cannot be believed that the plaintiff has been permitted under the licence at Ex.P.3 to carry out fishing at the particular place as averred in the plaint.

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Further, the Trial Court has noticed Section 67 of the Act which specifically stipulates that the public roads, streets, rivers, lakes, etc., belongs to the Government. Hence, the Trial Court upheld the contention of the defendants that the River belongs to the Government and unless the plaintiff demonstrates that, he has a right to use the said River for the purpose of fishing, the relief sought for by the plaintiff cannot be granted.

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The First Appellate Court while re-appreciating the factual aspects of the matter with regard to the license at Ex.P.3 has recorded the following findings:

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i) The original licence goes to show that the same is renewed from time to time every year;

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14 - NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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ii) The licence goes to show that the permission is accorded to the plaintiff to put up stakes for fishing in the ‘Kesarmane’ River near Jantradi i.e., Basu Gajani for a period of 01.08.1990 to 30.09.1992 putting 5 conditions;

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iii) The Trial Court wrongly came to the conclusion that, it is not clear under what Rule or provision the license is being issued. The said question does not arises since the Port Officer, Honnavar who is a Public Officer has issued a licence to put up the stakes for fishing since 1990 and the same is renewed from time to time;

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iv) The reasons given by the Trial Court that the Port Officer has not been examined to establish the genuineness of the issuance of the license is not correct since it is a public document issued by the Port Officer, Honnavar. Even the location is mentioned in the sketch (Ex.P.2) which is issued by the Port Officer;

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v) Ex.P.2 and Ex.P.3 are the public documents and there is no possibility of creating any of these documents.

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The First Appellate Court has noticed the testimony of PW.1, wherein he has stated in his crossexamination that on both sides of ‘Kesarmane’ bunds are constructed by the Government, wherein Gajani lands are owned by private persons and surrounding the said Gajani lands bunds are constructed by the Irrigation Department. It is further deposed that for watching the said bunds and Gajani lands and for operating the gate, watchmen are not appointed.

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The First Appellate Court further notices the testimony of DW.1, wherein he admitted that to catch fish at Aghanashini River, a licence was issued by the Government through Port Authority and that the defendants have not obtained any licence for catching fish. Further, it has been noticed by the First Appellate Court

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that, for the permission obtained by the plaintiff, DW.1 is stated to have filed objections.

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22. The First Appellate Court has noticed that the

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DW.2 and DW.3 who were examined in support of the case of the defendant are said to be the owners of Gajani lands near Aghanashini River. However, the First Appellate Court examining their testimony, has held that they are not helpful to the case of the defendant.

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The First Appellate Court noticing the fact that the license has been issued by the Port Officer and further noticing the defense taken by the defendant denying the case of the plaintiff, as also the circumstances about the obstruction and having regard to the fact that the Police complaint has been filed and criminal proceedings have been initiated between the parties, recorded a finding that the judgment and decree passed by the Tribunal is erroneous. Hence, the First Appellate Court allowed the appeal, set aside the judgment and decree of the Trial Court and decreed the suit.

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It is forthcoming from the aforementioned that

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the basis of the claim of the plaintiff is the licence issued by the Port Officer, Honnavr (Ex.P.3) and the sketch (Ex.P2) that is attested by the Port Officer, Honnavar. It is the case of the plaintiff that he has been permitted to put up stakes for fishing at the ‘Kesarmane’ River near Jantradi and that the permit was valid for a period of one year from 01.08.1990 to 30.08.1991. It is further forthcoming from Ex.P.3 that the same has been periodically renewed up to 30.09.2003. It is necessary to note that the said license is not a permanent one and it is subject to periodic renewal by the Port authorities. Further, although the place of the river near Jantradi is mentioned, the words “Basu Gajani” has been written by hand, and there is no endorsement or attestation by the Port Officer, Honnavar for the said insertion. Further, the sketch (Ex.P.2) has been attested by the Port Officer, Honnavar. However, the exact location where the plaintiff has been permitted to put up stakes for fishing is not specifically set out in the said sketch.

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18 - NC: 2024:KHC-D:9089 RSA No. 2410 of 2007

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The basis of the claim of the plaintiff is the

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permission granted by the Port Officer, Honnavar. As has been rightly noticed by the Trial Court, neither the issuing authority of Ex.P.3 i.e., the Port Officer, Honnavar been arrayed as a party to the suit, nor has any officer from the Port Office been examined by the plaintiff in support of Ex.P.2 and Ex.P.3. The First Appellate Court has recorded a finding that Ex.P.2 and Ex.P.3 have been proved on the ground that they are the public documents. However, merely on the said ground, Ex.P.2 and Ex.P.3 are not liable to be accepted. In view of the fact that the various factual aspects regarding Ex.P.2 and Ex.P.3 were required to be proved by the plaintiff, more particularly with regard to the exact location, where the plaintiff is permitted to carry out the fishing activities, as also the period for which he has been permitted to carry out the same, it was imperative for the plaintiff to have examined the official who issued Ex.P.2 & Ex.P.3 and/ or array the concerned statutory authority as a party to the suit.

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It is further relevant to note that the

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endorsement Ex.P.3 is only up to 30.09.2003. Hence, as on date, as also as on the date of filing of the first appeal, as well as on the date when RA No.223/2006 was decided i.e., on 25.06.2007, there is no material on record to indicate that the plaintiff was permitted by the Port Officer, Honnavar to put up stakes for fishing. The nonexamination of the official from the Port Office, Honnavar or the arraying of the authority which issued ExP.3, which permitted the plaintiff to put up stakes for fishing as a party to the suit is fatal to the case of the plaintiff.

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Another reason why the decree as sought for by the plaintiff ought not to be granted is due to the fact that the plaintiff sought for a permanent injunction to restrain the defendants from interfering with the activities of the plaintiffs in the suit property. The basis of injunction is the permission accorded by the Port Officer, Honnavar. The said permission itself being granted annually and being liable to be renewed periodically, the question of granting

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a permanent injunction as sought for by the plaintiff does not arise.

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Merely because, the defendants are allegedly interfering with the activities of the plaintiff without the plaintiff establishing his right vis-à-vis the relief of injunction that he has sought for, the question of granting the same does not arise.

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Having regard to the aforementioned, the plaintiff has not adequately proved, Ex.P.3. The First Appellate Court erred in decreeing the suit on the basis of Ex.P.3. Further, in view of the admitted position as contemplated under Section 67 of the Act, that all public waterways etc, are the property of the Government, it was incumbent on the plaintiff to either array the authority which granted him the permission as a party to the suit or examine the concerned statutory authority. The plaintiff having failed to do the same, the relief sought for by the plaintiff is not liable to be granted. Hence, the substantial question of law Nos.1 and 2 are answered in the negative.

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30. Hence, the following:

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ORDER

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i) The above appeal is allowed.

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ii) The judgment and decree dated 25.06.2007 passed in RA No.233/2006 by

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the Court of Civil Judge (Senior Division), Kumta, is set aside.

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iii) The judgment and decree dated 25.07.2005 passed in OS No.66/1997 by the Principal Civil Judge (Junior Division), Kumta, is affirmed.

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iv) Parties to bear the irrespective costs.

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Sd/JUDGE

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PJ CT:GSM List No.: 1 Sl No.: 63

Sadananda S/O Mankali Hosakatta v. Aravind S/O Bommayya Hosakatta

Case brief

What is this about?

What did the court decide?

Sadananda S/O Mankali Hosakatta v. Aravind S/O Bommayya Hosakatta

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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