Plaintiff sought damages for teakwood trees felled by defendant on land granted by the Land Tribunal. Trial and first appellate courts dismissed the suit as plaintiff produced no evidence of title over the land where trees stood. Second appeal dismissed for want of a substantial question of law.
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NC: 2024:KHC:11740 RSA No. 469 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 469 OF 2024 (RES)
BETWEEN:
MR. KUMAR AGED ABOUT 54 YEARS, S/O SHESHA NAIK, R/AT BERKI, SOWDA ROAD, SHANKARANARAYANA VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576 227.
…APPELLANT
(BY SRI. PRASANNA V.R.,ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
MR. RAGHAVENDRA KAMATH AGED ABOUT 68 YEARS, S/O ACHUTA KAMATH, R/AT SOWDA ROAD, SHANKARNARAYANA VILLAGE AND POST, KUNDAPURA TALUK, UDUPI DISTRICT-576 227.
…RESPONDENT
(RESPONDENT SERVED, UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:14.12.2023 PASSED IN RA NO.6/2022 ON THE FILE OF SENIOR CIVIL JUDGE, KUNDAPURA., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.12.2021 PASSED IN OS
NC: 2024:KHC:11740 RSA No. 469 of 2024
NO.46/2011 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, KUNDAPURA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the plaintiff aggrieved by the
judgment and decree dated 22.12.2021 passed in O.S.No.46/2011 on the file of the Principal Civil Judge & JMFC, Kundapura, (hereinafter referred to as 'Trial Court' for short) which is confirmed by the judgment and order dated 14.12.2023 passed in R.A.No.6/2022 on the file of Senior Civil Judge, Kundapura (hereinafter referred to as 'First Appellate Court' for short).
Rs.1,50,000/- against the defendant on the allegation of defendant cutting and felling the teakwood trees which existed on the northern side of the property granted to the plaintiff.
Shesha Naik was in occupation and enjoyment of a portion
of land measuring 2.14 acre in Sy.No.170/1 of Shankaranarayana Village which consisted of an irrigation tank. That after introduction of Karnataka Land Reforms Act 1961, his father filed an application seeking occupancy right over the said land. That excluding portion of land consisting of the water tank an order was passed by the Land Tribunal, Kundapura, granting land to an extent of 1.90 acre in Sy.No.170/1 of Shankaranarayana Village i.e., plaint 'A' schedule property. However, their possession has
been continued to including an extent of water tank portion.
O.S.No.115/2005 in which Court Commissioner was
appointed to identify the disputed properties and to file report and based on the said report of the Commissioner,
the suit filed by the defendant was dismissed on 11.04.2008. It is further contended that on 01.02.2010,
NC: 2024:KHC:11740 RSA No. 469 of 2024
the defendant with his servants trespassed into suit property and cut three teakwood (saguvani) trees. That again in the 1st week of March, 2010 the defendant trespassed into the schedule property and cut another big teakwood tree. Hence, a notice dated 29.01.2011 was issued to the defendant calling upon him to pay the damages of Rs.1,50,000/-. In reply, the defendant
justified his actions on the ground that the said cut trees were existed over his own land and not in the suit schedule property. Since, the defendant did not remove
three cut trees and one half cut tree from the suit schedule property, plaintiff gave up the claim in respect of above said cut and half cut trees and that plaintiff is only seeking relief of damages of Rs.1,00,000/- in respect of teakwood tree which was cut in the 1st week of March, 2010. Hence, he filed a suit for permanent injunction in respect of suit 'A' schedule property.
5. Defendant filed his written statement denying
the averments made in the plaint. It is further stated that
NC: 2024:KHC:11740 RSA No. 469 of 2024
the Land Tribunal granted only 1.90 acre of land in Sy.No.170/1 of Shankarnarayana Village in the name of late Shesha Naik and the entire remaining 1.85 Acre portion of land in Sy.No.170/1 was granted in favour of his father late Achuth Kamath. That after death of his father, defendant is absolute owner and in actual possession and enjoyment of 1.85 acre land in Sy.No.170/1 of Shankaranarayana Village. The saguvani trees were grown in his land and after cutting of teakwood trees, the plaintiff objected for issuance of permit to transport the timber from the spot. That it was further stated the suit in O.S.No.115/2005 filed by him was dismissed on the ground that the property was not properly identified by the Commissioner and that the Court has not given any finding on the rights of the parties to the extent of land in the possession of the parties. It is further stated that he has not trespassed into the suit schedule property in the 1st week of March, 2010 and cut teakwood trees and thereafter removed and transported the timber thereof to some secret place as alleged. Therefore, he is not liable to
NC: 2024:KHC:11740 RSA No. 469 of 2024
pay any damages or loss to the plaintiff. Hence, he sought
for dismissal of the suit with costs.
6. Based on the pleadings the Trial Court framed
the following issues for its consideration;
"1) Whether the plaintiff proves that the defendant has cut the trees standing the suit schedule property?
2) Whether the plaintiff proves that he has sustained loss as claimed in the plaint?
3) Whether the plaintiff is entitled for damages to the tune of Rs.1,00,000/-?
4) Whether the plaintiff is entitled to the relief claimed?
5) What order or decree?"
exhibited six documents, marked as Ex.P1 to Ex.P6.
Defendant No.1 got himself examined as DW.1 and
exhibited three documents, marked as Ex.D1 to Ex.D3. On appreciation of the evidence Trial Court had answered the issue Nos. 1 to 4 in the negative and dismissed the suit with cost.
NC: 2024:KHC:11740 RSA No. 469 of 2024
regular appeal in R.A.No.6/2022. Considering the grounds urged in the memorandum of appeal, First Appellate Court framed the following points for its consideration;
"1. Whether the trial Court has committed error in dismissing the suit and hence, the impugned judgment of the trial Court calls for any interference by this Court
2. If so what order?"
Appellate Court answered the point No.1 in the negative
and consequently dismissed the appeal confirming the judgment and decree of the Trial Court. Being aggrieved by the same, present appeal was filed by
plaintiff/appellant.
memorandum of appeal submitted that;
(a) though the defendant denied the suggestion as to
the property belonged to the plaintiff, he admitted in
his cross-examination that he has cut the standing teakwood trees, but did not remove the cut trees as the same belong to the plaintiff, this aspect of the matter is not appreciated by the Trial Court.
(b) the First Appellate Court has also failed to reappreciate the evidence on record and erred in law assuming that the plaintiff has not sought for relief of declaration that the portion of land where the teakwood trees were grown belong to the plaintiff, in
the absence of entries in the revenue records, ignoring the fact that all the standing trees are normally will not be depicted in the RTC. Thus, sought for allowing of the appeal.
have found that in the Commissioner report filed in O.S.No.115/2005 which was marked in the said case as Ex.P6, there is no identification as to the land where the
teakwood trees existed or there is no mention that the land in which the trees existed belonged to plaintiff. Both
the Courts have also found that the plaintiff has not sought any relief with regard to declaration of his title with respect to the portion of the land where said alleged teakwood trees existed. Further, plaintiff has also not produced any records to show that the teakwood trees indeed existed on the land belonging to him. Since no evidence was led in by the plaintiff showing his ownership, title and interest over the piece of land over which the
teakwood trees existed or with regard to his any right over the teakwood trees, the Trial Court and the First Appellate Court came to the conclusion that the relief sought for by the plaintiff was not sustainable.
NC: 2024:KHC:11740 RSA No. 469 of 2024
entitlement of the plaintiff in that regard otherwise sought
in the plaint.
In that view of the matter, no substantial question of
law would arise for consideration. Appeal is dismissed
accordingly.
Sd/JUDGE
RU
List No.: 1 Sl No.: 33
2 issues framed by the court
Whether the plaintiff proved the defendant cut teakwood trees standing on the plaintiff's property and is entitled to damages.
Whether any substantial question of law arose for consideration in the second appeal.
1 provisions across 1 enactments
Kumar
Raghavendra Kamath
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
