Dismissed

Sri. B.S Babanna Rai v. State Represented by Deputy Commissioner

Karnataka HC15 Feb 2024RSA/968/2022

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed an appeal against the dismissal of a suit seeking a declaration of bane privileges over disputed forest land. The trial and appellate courts found that the plaintiffs failed to produce evidence proving that the privilege rights had passed from their ancestors to them.

What did the court decide?

The appeal filed by the appellants was dismissed with no substantial question of law arising.

Sri. B.S Babanna Rai Vs State Represented by Deputy… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL

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REGULAR SECOND APPEAL NO. 968 OF 2022 (DEC/INJ)

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BETWEEN:

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SRI. B.S BABANNA RAI,

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S/O K THIMMANNA RAI, AGED 76 YEARS, R/AT PERALU GUTHU OF MANDEKOLU VILLAGE, SULLIA TALUK,

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D.K. DISTRICT-574239.

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SMT. VISHALAKSHI W/O B.S. BABANNA RAI,

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AGED 72 YEARS,

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APPELLANT NO.2 REP BY GPA,

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Digitally signed by SUMA B N Location: High Court of Karnataka

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i.e., HER HUSBAND B.S.BABANNA RAI, R/AT PERALU GUTHU OF MANDEKOLU VILLAGE, SULLIA TALUK, D.K. DISTRICT-574239.

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…APPELLANTS

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(BY SRI. SACHIN B S.,ADVOCATE)

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AND:

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STATE REPRESENTED BY DEPUTY COMMISSIONER, D.K. DISTRICT, MANGALORE POST, MANGALORE-575001.

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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THE DEPUTY CONSERVATOR OF FOREST, MANGALORE, D.K. 575001.

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THE RANGE FOREST OFFICER, PUTTUR RANGE, PUTTUR-574201.

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…RESPONDENTS

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(BY SMT. AZRA J DUNDGE, AGA.)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.12.2021 PASSED IN R.A. NO.19/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., SULLIA, DAKSHINA KANNADA CONFIRMING THE JUDGMENT AND DECREE DATED 13.11.2019 PASSED IN O.S.NO.68/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND J.M.F.C, SULLIA, DAKSHINA KANNADA AND CONSEQUENTLY ALLOW THE R.A.NO.19/2019 AND ETC.,

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

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JUDGMENT

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This appeal is filed by the appellants/plaintiffs being aggrieved by the judgment and decree dated 13.11.2019 passed in O.S.No.68/2010 on the file of Senior Civil Judge and J.M.F.C, Sullia, Dakshina Kannada, which is confirmed by the judgment and order dated 04.12.2021 passed in R.A.No.19/2019 on the file of Senior Civil Judge and J.M.F.C., Sullia, Dakshina Kannada.

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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The above suit is filed by the appellants/plaintiffs for relief of declaration of their bane privilege over the ‘B’ Schedule property and consequential relief of permanent injunction prohibiting defendants from interfering with the same. The case of the plaintiffs is that they are the owners of ‘A’ Schedule property at Peralu Gathu of Mandekolu Village, Sullia Taluk, Dakshina Kannada. That item No.1 and item No.2 of the ‘A’ Schedule property belonged to the plaintiff No.1. Item No.3 of the plaint ‘A’ Schedule property belonged to the plaintiff No.2. She having obtained the same under the Will.

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2.1 It is the case of the plaintiffs that they are having bane privilege in respect of ‘B’ Schedule property which is a joint bane land in respect of Plaint 'A' and ‘C’ Schedule property. ‘B’ Schedule property is in Sy.No.439, originally measuring 9.41 acres out of which 1.34 acres was granted to some third persons and out of remaining extent of land an extent of 0.78 acres was allotted to a School. Thus the plaintiffs are entitled to have their privilege right in respect of remaining extent of land which is described in the Schedule ‘B’ of the plaint. It is his further case that the defendant-Forest Department without having any right, title and interest over the

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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‘B’ Schedule land forcibly entered upon the same. The Forest Officers of Putturu Forest Range, Putturu trespassed over the property and have illegally planted the trees by digging the pits thereon. Since, the plaintiff has the privilege right over the ‘B’ Schedule property which cannot be cancelled or resigned other than the process known to law. As such plaintiffs were constrained to file the suit for the relief of declaration.

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2.2 Defendant Nos.4 and 5 filed their written statement denying the plaint averments and also questioning the maintaining of the suit. It is contended that the ‘B’ Schedule property belonged to Social Forest Division, which is not made as party to the suit. It is also contended that plaintiff has not pleaded or produced any documents to establish their right and privilege over the said bane land. It is further contended that ‘B’ Schedule property originally belonged to the Social Forest Division, which is one of the Department under the Government which is planting trees on the Government lands for the benefit of public to maintaining the green pasture. Accordingly, the said department had identified 25 acres of the Government land in Peralu Gathu of Mandekolu Village, Sullia Taluk and had planted the trees in the year 1988-89 on several lands

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including ‘B’ Schedule property and in fact the grown up trees were also cut down in the year 2009-10, which were auctioned on 26.05.2010 and 24.07.2010. Thereafter, the said department has re-planted the trees over the suit property and the same is completed. The plaintiff has filed the suit only with the intention of grabbing the Government land.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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"1) Whether the plaintiffs proves that the they are the owner of the 'A' and 'C' schedule properties?

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2) Whether the plaintiffs proves their title to the 'A' and 'C' schedule properties?

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3) Whether the plaintiffs proves that 'B' schedule property is the bane privileged land to their 'A' and 'C' schedule properties?

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4) Whether the plaintiffs proves that they have enjoyed bane privileges over the 'B' schedule property as contended?

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5) Whether the plaintiffs proves that they are in possession and enjoying the bane privilege over the 'B' schedule properties?

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6) Whether the plaintiffs proves the interference caused by the defendants?

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7) Whether the suit is bad for not issuing the statutory notice?

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8) Whether the suit is bad for non-joinder of necessary parties?

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9) Whether the suit is not maintainable?

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10) Whether the court fee paid is not sufficient?

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11) Whether the plaintiffs are entitled for the relief of declaration?

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12) Whether the plaintiffs are entitled for the relief of permanent injunction?

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13) What Order or Decree?"

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The plaintiff No.1 examined himself as PW1 and

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exhibited 31 documents marked as Ex.P1 to Ex.P31. Defendant No.4 examined himself as DW1. and exhibited 14 documents marked as Ex.D1 to Ex.D14. On appreciation of the evidence the Trial Court answered issue Nos.1 and 2 in the affirmative and issue Nos.3 to 10 in the negative and consequently decreed the suit.

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Being aggrieved by the aforesaid judgment and decree plaintiff filed an appeal in R.A.No.19/2019 before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its consideration:

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"1. Whether the suit of the Appellants/Plaintiffs is maintainable under section 114(A) of the Karnataka Forest Act 1963 and section 2 of Forest (Conservation) Act, 1980?

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2. Whether the impugned Judgment passed by the trial court suffers from illegality and required interference of this court?

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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3. What order?"

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On re-appreciation of the evidences, the First Appellate

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Court answered point Nos.1 and 2 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same plaintiff filed the present appeal before this Court.

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Sri. Sharath P.H, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that the Trial Court and the First Appellate Court on appreciation of the evidence have came to the conclusion that the plaintiffs are the absolute owners of Schedule 'A' and ‘C’ properties. He submits that once the issue has been answered in the affirmative in favour of the plaintiffs, the Trial Court and the First Appellate Court ought to have appreciated that the plaintiffs being the owners of the 'A' and ‘C’ Schedule properties indeed are having privilege right over the ‘B’ Schedule property which is a bane land. It is his case that the privilege right of the bane land being enjoyed by the plaintiffs and their forefathers from time immemorial and the revenue records stood in the name of grand father of the plaintiff, which fact has not been taken note of by the Trial

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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Court and the First Appellate Court while dismissing the suit giving raise to substantial question of law.

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On the other hand, Smt.Azra J Dundge, learned AGA for the respondents justifying the judgment and decree passed by the Trial Court and confirmed by the judgment and order by the First Appellate Court submitted that plaintiff has not pleaded as to the extent over which they are seeking bane privilege land in respect of ‘B’ Schedule property. She further points out that though plaintiff contended that bane privilege land have been shared by the plaintiffs along with others, the plaintiffs have not made others who are sharing the property as parties to the suit. It is her further submission that though in the plaint, the plaintiff had claimed right only in respect of ‘A’ schedule property, he has not given any details as to whom ‘C’ Schedule property belongs. Thus she submits that the very frame of the suit being ambiguous, the contention of the plaintiff having privilege right over the ‘B’ Schedule property cannot be accepted. She further submits that in any event ‘B’ Schedule property is a forest land being in its possession and the plaintiffs have no right over the same. She submits that in the absence of plaintiffs producing any evidence the Trial Court

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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and the First Appellate Court are justified in dismissing the suit.

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Hence, seeks for dismissal of the appeal.

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Heard. Perused the records.

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The relief sought for by the plaintiff in suit is declaration of their privilege right to use the ‘C’ Schedule property which according to the plaintiff is a bane land. Perusal of the schedule to the plaint would reveal that the plaintiff No.1(husband of the plaintiff No.2) claiming be the owner of item Nos.1 and 2 of the suit schedule property which is measuring 25 cents, 64 cents, 18 cents and 13 cents forming part of land in Sy.No.112, plaintiff No.2 is claiming to be the

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owner of item No.3 of the ‘A’ Schedule property which is measuring 12 cents and 15 cents forming part of land in Sy.No.112 as against the said claim of ownership over the ‘B’ Schedule property. Plaintiffs are claiming their privilege right in respect of 7 acres and 29 cents of land in Sy.No.349, though a feeble attempt is made by the plaintiff to infuse ‘C’ Schedule property into the plaint without any details as to whom the ‘C’ Schedule property belongs, the Trial Court and the First Appellate Court taking note of these aspects of the matter have

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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found that the plaintiffs has not claimed any relief expect making a claim of privilege right over the ‘B’ Schedule property and contended that the records stood in the name grand father of the plaintiff No.1. The plaintiff No.1 has not produced any evidence with regard to they continuing to have privilege over ‘B’ Schedule property. Even during the cross-examination as taken note of by the Trial Court at para No.15 of its judgment, PW.1 has stated that records were in the name of his grand father namely Lingappa Rai and that is enough. He has also not produced any records to prove the genealogy of said Lingappa Rai connecting to the plaintiff. However, though it is contended that the subject land was allotted to said Lingappa Rai in a partition, no such documents is produced before the Trial Court. Thus, taking note of these aspects of the matter the Trial Court has found that the plaintiff apart from not being able to establish the relationship of said Lingappa Rai has also not produced any documents to prove that the plaintiff continued to have any privilege right over the ‘B’ Schedule property. Based on these aspects of the matter the Trial Court dismissed the suit.

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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The First Appellate Court apart from re-appreciating the evidence and conclusion arrived at by the Trial Court of the claim of the plaintiff of having privilege right over the bane land has also taken into consideration provisions of Section 114A of the Forest Act, 1963 with regard to maintainability of the suit. The First Appellate Court has also taken into consideration of Circular dated 11.02.2010 produced at Ex.D12 and has concluded that in terms of the said circular the privilege that was enjoyed either by custom or under any Order in respect of Kumki land, Bane land, Kane land in North and South Canara District shall stand continued under the circumstances declaratory relief as sought for by the plaintiffs could not be granted. Having found that the First Appellate Court at para.No.20 of its judgment and order found that though the plaintiffs claimed ‘B’ Schedule property to be the bane privilege in respect of ‘A’ Schedule property and ‘C’ Schedule property from the time immemorial has not produced any oral and documentary evidence to claim that the ‘B’ Schedule property is a bane privilege land attached to ‘A’ and 'C' Schedule properties from time immemorial as contended.

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NC: 2024:KHC:6547 RSA No. 968 of 2022

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Since the plaintiff failed to prove their claim of they having privilege right over the ‘B’ Schedule property, the First Appellate Court has dismissed the appeal confirming the judgment and decree passed by the Trial Court. Since the Trial Court and the First Appellate Court on appreciating of the evidence have come to the conclusion that the plaintiffs not been able to produce any piece of evidence with regard to ‘B’ Schedule property forming part of bane land for the purpose of enjoyment of ‘A’ Schedule and 'C' Schedule properties and the same being findings on facts, no error or irregularity can be found with the conclusion arrived at by the Trial Court confirming by the First Appellate Court. No substantial question of law would arise for consideration in this appeal. Accordingly, appeal is dismissed .

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Sd/JUDGE

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Sri. B.S Babanna Rai v. State Represented by Deputy Commissioner

Case brief

What is this about?

What did the court decide?

Sri. B.S Babanna Rai v. State Represented by Deputy Commissioner

Case brief

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