Shankarshetti Vs State of Karnataka

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 12.06.2023 PASSED IN RA.No.34/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, TIPTUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.03.2018 PASSED IN OS.No.130/201 ON THE FILE OF THE C/C ADDITIONAL CIVIL JUDGE AND JMFC, TIPTUR.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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Heard learned counsel for the appellant.

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This appeal is preferred by the plaintiff

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challenging the judgment and decree passed by the Senior Civil Judge and JMFC-Tiptur in RA.No.34/2018 dated 12.06.2023, dismissing the appeal filed by the

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appellant/plaintiff and confirming the judgment and decree dated 01.03.2018 passed by the C/c Additional Civil Judge and JMFC, Tiptur in O.S.No.130/2014.

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Parties to the proceedings shall be referred to

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as plaintiff and defendants for the sake of brevity.

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The brief facts of the case are as follows:

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Plaintiff filed suit for permanent injunction restraining

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the defendants from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property. It is the say of plaintiff that originally the suit schedule property belonged to Government of Karnataka. The Tahsildar Tiptur has granted the said suit land, in favour of plaintiff under a grant certificate dated 03.09.1998. It is also claimed by the plaintiff that he is possession and enjoyment of the suit schedule property since from the date of grant, enjoying the same by changing the khata and other revenue entries in mutation entry number 1/2010-11.

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He is also paying the land revenue on the suit

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property. It is the say of the plaintiff that the defendants have no manner of right, title, interest or possession over the suit schedule property. Defendants started to interfere more specifically; defendant No.5 was trying to encroach on the suit schedule property and attempted to trespass into the suit schedule property to dig in the suit schedule property without any notice to the plaintiff. Therefore, the plaintiff filed suit against the defendants for the relief of permanent injunction.

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Upon service of the summons to the

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defendants, a written statement was filed by defendant No.5. The other defendants adopted the written statement of defendant No.5, denied the entire plaint averments, and pleaded that the suit is not maintainable in view of Section 80 of CPC and also under Section 2 of the Forest Conservation Act 1980.

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It was further pleaded that the Government of

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Mysore sanctioned land at Chikkanayakannahally and Tiptur Taluk measuring totally 3035 acres and 01 guntas, and the same was classified as 'A', 'B' and 'C' and named Kamalapura State Reserve Forest under Government notification. No. AF9044FT 195/49-4. It is also pleaded that the entire land is in possession of the government under the control of the Forest Department.

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It is also pleaded that the plaintiff has created a grant certificate in collusion with the revenue officials without obtaining any necessary permission from the Forest Department and has attempted to encroach on the forest land. Therefore, it is pleaded that the plaintiff does not have any manner of right, title, interest or possession over the suit schedule property, which is a part and parcel of the Kamalapura reserved state forest, and hence, sought for dismissal of the suit.

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Based on the pleadings, the trial Court framed

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the following issues for consideration.

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1. Whether the plaintiff proves that the Tahasildar, Tiptur have granted the suit land under Grant Certificate dated 03.09.1998 and from that date he is in peaceful possession and enjoyment of suit property?

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2. Whether the plaintiff proves the alleged

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interference by the defendants?

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3. Whether the suit is not maintainable as per Sec.2 of the Forest (Conservation) Act, 1980?

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4. Whether the defendants prove that the

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plaintiff has not issued notice U/s. 80 of CPC?

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5. Whether the plaintiff is entitle for relief

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claimed?

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6. What Order or Decree?

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10. In order to substantiate the issues and prove

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the case, the plaintiff stepped into the witness box, examined himself as PW1, and got marked Ex.P1 to P3. The defendant No.5 examined one person as DW1 and got marked Ex.D1, the Mysore Gazette Notification dated 06.04.1950.

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On the basis of materials placed on record, both oral and documentary, and on hearing the arguments of learned counsels for both the parties, the trial Court did not find favour with the plaintiff, agreed with the contentions put forth by the defendants, and accordingly, dismissed the suit of the plaintiff. Aggrieved by the dismissal of the suit, the plaintiff preferred a first appeal in R.A.No.34/2018 before the Senior Civil Judge and JMFC, Tiptur.

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Upon summons being served therein, defendants appeared and contested the matter and took up the same plea as was taken before the trial Court and upon reconsideration and re-analysing of the entire materials placed before the trial Court, the argument put forth by the learned counsel for all parties and the impugned judgment and decree of the trial Court, the first appellate Court formulated the following points for consideration.

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1. Whether the judgment and decree passed by the trial court in O.S.No.130/2014, dated 01.03.2018 is erroneous, illegal and opposed to law and calls the interference of this court?

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2. What Order?

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The first appellate Court, having gone through

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the entire materials of the trial Court, the impugned judgment of the trial Court, the evidence adduced both oral and documentary and the contentions of learned counsel for both parties, upon re-appreciation of the materials again, did not find favour with the plaintiff, accepted the version of the defendants, and relied upon the judgment of the Hon'ble Apex Court in the case of Anathula Sudhakar V/s P.Buchi Reddy(Dead) by LRs

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and Others reported in ( 2008) 4 SCC 594 dismissed the appeal. Consequently, confirmed the judgment of the trial Court.

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Aggrieved by these two judgments of

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concurrent finding, the plaintiff is before this Court challenging the same on the following grounds. It is

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vehemently contended by learned counsel for the

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appellant/plaintiff that the trial Court as well as the first appellate Court have committed a serious error, perversity, and illegality in not appreciating the clear admission on the part of the respondents/defendants. The total extent of land in Survey No. 11 is 670.90 acres, out of which 194.20 acres are forest land and the remaining land is revenue land. It is also vehemently contended by learned counsel for the appellant/plaintiff that the Forest Department has not conducted any survey to identify the land of plaintiff. They, in fact, have admitted that before the grant of land by revenue authorities, they would conduct the survey and identify the land and only then the land would be granted. Therefore, he contends that based on these statements of the defendants, the suit schedule property fell within the jurisdiction of the revenue land, which credence was not given and neither appreciated by both the trial Court as well as the first appellate Court.

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Learned counsel for the appellant/plaintiff

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further contends that the revenue authorities before the grant of the land considered the possession of the plaintiff over the past several years and after conducting a detailed survey issued a grant certificate which has not been questioned or challenged by the Forest Department. Therefore, he contends that without questioning or challenging the said grant certificate and the long standing possession of the plaintiff, the trial Court and the first appellate Court have ignored these aspects and have mechanically passed the order solely on the ground that the plaintiff did not make a claim for declaratory relief as

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held by the Hon'ble Apex court in the case of Anathula

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Sudhakar V/s P.Buchi Reddy(Dead) by LRs and

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Others reported in ( 2008) 4 SCC 594.

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Learned counsel further contends that he has

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filed the suit on the basis of Ex.P1, which is the grant certificate, which itself clearly demonstrates his ownership and title over the suit schedule property and therefore

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there was no necessity for him to seek declaration of ownership, as the grant certificate itself would amount to its title. Hence, the trial Court and the first appellate Court have ignored this aspect and have passed the impugned order which is perverse and illegal and the same requires to be set aside. Learned counsel for the appellant/plaintiff has formulated substantial questions of law in the appeal memo which he contends they are required to be formulated by this Court for further consideration of the appeal. On these submissions, he seeks to allow his appeal.

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Per contra, learned counsel Sri.B.S.Guruswamy, AGA, appearing for the respondent No.1/state vehemently contends that there is no perversity or illegality in the judgment and decree rendered by the trial Court as well as the first appellate Court. The suit of the plaintiff itself was not maintainable at the first instance. In view of there being no proper service of notice as contemplated under

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Section 80 of CPC, so also it is barred under Section 2 of

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the Forest Conservation Act of 1980.

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It is further contended by learned AGA that the

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trial Court as well as the first appellate Court have taken into consideration the defence put forth by the defendants with regard to the appellant/plaintiff not being the owner of the suit schedule property, as the suit property belongs to the Forest Department, classified as a reserved forest, and further classified as 'A', 'B' and 'C' under the name of Kamalapura State Reserve Forest, which is duly notified by the government gazette notification, which is produced as Ex.D1. It is also contended that the defendants have not

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admitted possession and neither the plaintiff is in possession or enjoyment of the suit schedule property. He further contends that the trial Court and first appellate Court have rightly come to a conclusion based on the materials, both oral and documentary and have dismissed the suit which does not call for interference.

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Learned Additional Government Advocate

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further contends that the first appellate Court upon reappreciation of the entire materials on record has rightly come to a conclusion that there was no illegality committed by the trial Court and relied upon the judgment of the Hon'ble Apex Court in the case of Anathula Sudhakar as stated supra as to whether defendants raise a cloud, deny the title of the plaintiff; the plaintiff ought to have challenged the same by way of filing a declaratory relief or sought for a declaration by way of amendment which has not been done. Hence, a suit for bare injunction was anyway not maintainable. Hence, he contends that there is no illegality or perversity in the judgment rendered by both the Courts. Hence, he seeks dismissal of this appeal.

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Having heard the arguments of the learned counsel for the appellant/plaintiff and learned counsel for the respondents/ defendants, the point that arises for consideration is:

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1. Whether the appellant/plaintiff has made out any good ground or cogent reason for interference to show any illegality or perversity committed by the trial Court as well as the first appellate Court?

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2. Whether any substantial questions of law require to be formulated by this Court for further consideration in this appeal?

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3. What order?

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The fact that remains is that the suit filed by

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the plaintiff is for a permanent injunction pertaining to Survey No.11, measuring 3 acre 1 guntas situated at Muddenahalli Village, Honnavalli Hobli, Tiptur Taluk. Admittedly, no notice has been issued under Section 80(2) of CPC. The suit is filed without the statutory notice. In the written statement, the defendants have denied the ownership, title, and possession of the plaintiff in the suit schedule property. The defendants have also taken a plea that the plaintiff has created and concocted the grant certificate in collusion with the revenue officials without obtaining any necessary permission from the Forest Department and have made an attempt to encroach upon

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the forest land. The trial Court as well as the first appellate Court based on the documents produced by the plaintiff, namely the grant certificate, RTC extract and certified copy of the mutation extract, did not find favour with the plaintiff and has dismissed the suit of the plaintiff. The trial Court has also come to a conclusion that the plaintiff has not provided any evidence to show that he is in exclusive lawful possession of the suit schedule property. On the said basis, the suit came to be dismissed.

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The first appellate Court, upon re-appreciation, on reconsideration of the entire gamut of materials, both oral and documentary, on the law and on the question of maintainability of suit for permanent injunction without seeking the relief of declaration, on the basis of the judgment rendered by the Hon'ble Apex Court in the case of Anathula Sudhakar as stated herein supra, did not find favour with the plaintiff and rejected the contention on the ground that the suit for permanent injunction would not be maintainable. The trial Court and

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the first appellate Court have concurrently come to a categorical finding of fact and law that the plaintiff has not made out sufficient grounds or produced materials to show his possession for grant of permanent injunction so also the suit would not be maintainable for having not issued notice under Section 80 of CPC as contemplated under Section 2 of the Forest Conservation Act of 1980. No doubt the plaintiff has formulated a few questions, substantial questions of law to be adverted to by this Court, which is on the basis of the documents produced at Ex.P1 to Ex.P3 and not having given credence to the admissions on the part of DW1 with regard to possession and title.

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I am afraid these aspects cannot be gone into

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by this Court under Section 100 of CPC as a question of fact cannot be re-adverted to by this Court sitting in the jurisdiction of Section 100 of CPC, where it is only the substantial questions of law that requires to be seen and

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not the factual aspects or the evidentiary material which has already been considered by the trial Court as well as

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the first appellate Court. When a finding of fact has been held against the plaintiff by two Courts, this Court cannot impose its own opinion. Moreover, I do not find any good ground or cogent reason to accept the argument of learned counsel for the appellant/plaintiff that the Ex.P1 to Ex.P3 requires to be further reconsidered by this Court sitting in second appeal jurisdiction for the simple reason that the documents at Ex.P1 to Ex.P3 are grant certificate, RTC extract and certified copy of the mutation register extract. What is required to be kept in mind is the suit is filed for permanent injunction. It is for the plaintiff to establish before this Court about his lawful possession

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over the suit schedule property. It is not for this Court to delve into the matter with regard to the declaratory relief or the title document which plaintiff claims or seeks reliance.

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In view of the provisions of Section 100 of the

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CPC, the scope for interference in a second appeal becomes very narrow and limited. It is for the plaintiff to

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have made out a case before the trial Court and the first

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appellate Court, where he has not been successful. Both the Courts have held in the negative. This Court is not sitting in the appellate jurisdiction to re-appreciate the evidence on record. Even if this Court were to be of another opinion than that of the trial Court and the first appellate Court, it cannot impose its opinion, as a question of fact has already been decided. The same cannot be appreciated in the second appeal. This Court does not find any good ground or cogent reason to appreciate the contention of the plaintiff to frame a substantial question of law for consideration of this appeal once again.

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In view of the discussions made herein

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above, this Court is not convinced or satisfied with the submissions of learned counsel to delve into the matter further for framing substantial questions of law, as none exist for further consideration in this appeal. I do not find any perversity or illegality committed by the trial Court as well as the appellate Court in rendering a reasoned

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