The Range Forest Officer, and ors. Vs. D.P.Ramesh,s/O. D.C.Puttaswame GowdA. - Court Judgment

Excerpt:
[mr. justice b.sreenivase gowda, j.] this mfa |s filed u/s 173(1) of mv act against, the judgment and award dated; 23.6.2010 passed in mvc no.9292/2009 on the file of 14th additional judge. court of small causes, member, mact, bangalore city, awarding a compensation of rs.6,59,000/- with interest @ 6% p.a. from the date of petition till deposit.1. these appeals by the defendants- appellants herein are arising out of the impugned judgments and dated 21/04/2007 passed in o.s.no.264/2003. (in" rfa no. 1946/2007). o.s.no.262/2003(in rfa no. 1947/2007) and o.s.no.263/2003 (in rfa no. 1948/2007) respectively, on. the file of the civil judge (sr.on). chikmagalur, thereinafter referred to as the trial court' for short), wherein, the plaintiffs-respondents herein have sought for declaration and permanent injunction in respect of their respective lands in question.2. the brief facts of the case are as follows: sri. d.p. rarnesh. smt. thimmamma and sri. d.c. puttaswame gowda who are the son, mother and father have filed separate suits before the trial court for declaration and permanent injunction against the defendants-appellants herein in respect of the lands in question, contending that, land bearing sy.no.841 (old error hyperlink reference not valid. measuring 04 acres 20 guntas, situated at vastare village. chickmagalur taluk, has been granted by the tahsildar. in favour of d.p. ramesh in rfa no. 1946/2007 (os no.264/2003), land bearing sy.no. 839 measuring 04 acres 35 guntas and land bearing sy.no.840 measuring 04 acres 20 guntas situated in vasthare village, chikmagalur taluk, has been granted by the tahsildar in favour of smt. thimmamma and smt kallamma, mother of smt. thimmamma and after her death the said property had come to smt. thimmamma in rfa no. 1947/2007 (in os no.262/2003) and land bearing sy. no.838 measuring 04 acres, situated at vasthare village, chikmagalur taluk, has been granted by the assistant commissioner in favour of sri. puttaswame gowda in rfa no. 1948/2007 (o.s.no 263/2003). all these properties were surveyed, demarcated, assessed and new survey numbers have been assigned. thereafter, the revenue authorities have issued saguvlai chits in their favour. when things stood thus, the authorized officer of the defendants-appellants herein has initiated a criminal case against d.p. ramesh and his family members in cc no. 1478/1998 and an eviction proceeding has also been initiated under section 64a of the karnataka forest act, 1963. it is the further case of the plaintiffs -respondents herein that, prior to the grant made by the tahsildar and assistant commissioner in their favour, they were in peaceful possession, cultivation and enjoyment of the said lands since 1980. further, it is the case of the plaintiffs-respondents herein that, the forest department has unnecessarily made an attempt to evict them, on the sole ground that, they encroached the forest land (mattavara reserve forest) and therefore, the cause of action has arisen for them to file original suits in o.s.no.264/2003. 262/2005 and 263/2003 respectively, before the trial court. the trial court, has registered the same. upon service of notice to respondents -appellants herein, they are represented through their counsel and filed their written statements contending that, the lands in question is a reserve forest lands and the plaintiffs respondents herein have jointly encroached about more than 35 acres in sy.no.369 of vasthare village belonging to the forest department. even they have produced the notification dated 27.1.1937 wherein, the said area has been notified as 'mattavara reserve forest' and contended that, the plaintiffs-respondents herein have no right either to encroach or continue in possession of the lands which belongs to forest department and they are liable to be evicted by initiating appropriate proceedings as envisaged under the relevant provisions of the forest act.3. on the basis of pleadings of both the parties, the trial court has framed the issues for considerations as under:issues in o.s.no.264/2003. o.s.no.262/2003 and o.s.no.263/2003:(i) whether the plaintiffs prove that he/she is the absolute owner in possession, cultivation and enjoyment of the plaint schedule property?(ii) whether plaint ills further prove the defendants illegal and unauthorised interference in the peaceful possession, enjoyment and cultivation of the suit property of the plaintiffs?(iii) whether defendants prove that the suit is not maintainable for the reasons stated at paras-4,5,6,7 and 8 of written statements?(iv) whether the plaintiffs is entitled for relief sought for?(v) what decree or order?to substantiate their respective cases, one. sri. d.p.ramesh has been examined as pw1 on his behalf and on behalf of other plaintiffs as power of attorney holder and got examined one witness as pw2 hi all these appeals and got marked ex.p1 and 22 in os nos.264/2003 and 262/2003 and ex.p1 and 26 in os no.263/2003. on behalf of the appellants herein, their authorised officer was examined as dw1 and got marked ex.d1 to d9 in all the suits. the trial court, after considering die oral and documentary evidence and other material available on file, has answered issue nos. 1,2 and 4 in the affirmative, issue nos. 3 in the negative in all these suits and as per final order, has decreed the suits with costs, declaring that the plaintiffs-respondents are the absolute owners in possession, cultivation and enjoyment of the plaint schedule properties and restrained the appellants herein, their men, agents, servants or anybody claiming through them by way of permanent injunction from dispossessing the plaintiffs-respondents herein or interfering with the schedule properties. being aggrieved by the impugned judgments and decree passed by the trial court, the appellants have presented these appeals.4. we have heard the learned government pleader appearing for defendants appellants and learned counsel for plaintiffs respondents.5. the learned government pleader appearing for the appellants, at the out set submitted that, the trial court has committed an error and illegality in not considering the fact that the respondents have failed to implead the revenue department which has granted the lands in their favour, as a party and therefore, suit filed by the plaintiffs before the trial court arc liable to be dismissed for non-joinder of necessary parties. further, she submitted that, the trial court has failed to frame necessary issue for its consideration as per section -2 of the forest (conservation) act, 1980 and thirdly, she submitted that, the trial court has failed to consider the ex.p1 to p6 from which it is ciystal

Judgment:
1. These appeals by the defendants- appellants herein are arising out of the impugned judgments and dated 21/04/2007 passed in O.S.No.264/2003. (in" RFA No. 1946/2007). O.S.No.262/2003(in RFA No. 1947/2007) and O.S.No.263/2003 (in RFA No. 1948/2007) respectively, on. the file of the Civil Judge (Sr.On). Chikmagalur, thereinafter referred to as the Trial Court' for short), wherein, the plaintiffs-respondents herein have sought for declaration and permanent injunction in respect of their respective lands in question.

2. The brief facts of the case are as follows: Sri. D.P. Rarnesh. Smt. Thimmamma and Sri. D.C. Puttaswame Gowda who are the son, mother and father have filed separate suits before the Trial Court for declaration and permanent injunction against the defendants-appellants herein in respect of the lands in question, contending that, land bearing Sy.No.841 (old Error Hyperlink reference not valid. measuring 04 Acres 20 guntas, situated at Vastare village. Chickmagalur taluk, has been granted by the Tahsildar. in favour of D.P. Ramesh in RFA No. 1946/2007 (OS No.264/2003), land bearing Sy.No. 839 measuring 04 Acres 35 guntas and land bearing Sy.No.840 measuring 04 acres 20 guntas situated in Vasthare village, Chikmagalur Taluk, has been granted by the Tahsildar in favour of Smt. Thimmamma and Smt Kallamma, mother of Smt. Thimmamma and after her death the said property had come to Smt. Thimmamma in RFA No. 1947/2007 (in OS No.262/2003) and land bearing Sy. No.838 measuring 04 acres, situated at Vasthare village, Chikmagalur Taluk, has been granted by the Assistant Commissioner in favour of Sri. Puttaswame gowda in RFA No. 1948/2007 (O.S.No 263/2003). All these properties were surveyed, demarcated, assessed and new survey numbers have been assigned. Thereafter, the Revenue Authorities have issued saguvlai chits in their favour. When things stood thus, the Authorized Officer of the defendants-appellants herein has initiated a criminal case against D.P. Ramesh and his family members in CC No. 1478/1998 and an Eviction Proceeding has also been initiated under Section 64A of the Karnataka Forest Act, 1963. It is the further case of the plaintiffs -respondents herein that, prior to the grant made by the Tahsildar and Assistant Commissioner in their favour, they were in peaceful possession, cultivation and enjoyment of the said lands since 1980. Further, it is the case of the plaintiffs-respondents herein that, the Forest Department has unnecessarily made an attempt to evict them, on the sole ground that, they encroached the forest land (Mattavara reserve forest) and therefore, the cause of action has arisen for them to file original suits in O.S.No.264/2003. 262/2005 and 263/2003 respectively, before the Trial Court. The Trial Court, has registered the same. Upon service of notice to respondents -appellants herein, they are represented through their counsel and filed their written statements contending that, the lands in question is a reserve forest lands and the plaintiffs respondents herein have jointly encroached about more than 35 acres in Sy.No.369 of Vasthare village belonging to the Forest Department. Even they have produced the notification dated 27.1.1937 wherein, the said area has been notified as 'Mattavara Reserve Forest' and contended that, the plaintiffs-respondents herein have no right either to encroach or continue in possession of the lands which belongs to Forest department and they are liable to be evicted by initiating appropriate proceedings as envisaged under the relevant provisions of the Forest Act.

3. On the basis of pleadings of both the parties, the Trial Court has framed the issues for considerations as under:

Issues in O.S.No.264/2003. O.S.No.262/2003 and O.S.No.263/2003:

(i) Whether the plaintiffs prove that he/she is the absolute owner in possession, cultivation and enjoyment of the plaint schedule property?

(ii) Whether plaint ills further prove the defendants illegal and unauthorised interference in the peaceful possession, enjoyment and cultivation of the suit property of the plaintiffs?

(iii) Whether defendants prove that the suit is not maintainable for the reasons stated at Paras-4,5,6,7 and 8 of written statements?

(iv) Whether the plaintiffs is entitled for relief sought for?

(V) What decree or order?

To substantiate their respective cases, one. Sri. D.P.Ramesh has been examined as PW1 on his behalf and on behalf of other plaintiffs as Power of Attorney Holder and got examined one witness as PW2 hi all these appeals and got marked Ex.P1 and 22 in OS Nos.264/2003 and 262/2003 and Ex.P1 and 26 in OS No.263/2003. On behalf of the appellants herein, their Authorised Officer was examined as DW1 and got marked Ex.D1 to D9 in all the suits. The Trial Court, after considering die oral and documentary evidence and other material available on file, has answered issue Nos. 1,2 and 4 in the affirmative, issue Nos. 3 in the negative in all these suits and as per final order, has decreed the suits with costs, declaring that the plaintiffs-respondents are the absolute owners in possession, cultivation and enjoyment of the plaint schedule properties and restrained the appellants herein, their men, agents, servants or anybody claiming through them by way of permanent injunction from dispossessing the plaintiffs-respondents herein or interfering with the schedule properties. Being aggrieved by the impugned judgments and decree passed by the Trial Court, the appellants have presented these appeals.

4. We have heard the learned Government Pleader appearing for defendants appellants and learned counsel for plaintiffs respondents.

5. The learned Government Pleader appearing for the appellants, at the out set submitted that, the Trial Court has committed an error and illegality in not considering the fact that the respondents have failed to implead the Revenue Department which has granted the lands in their favour, as a party and therefore, suit filed by the plaintiffs before the Trial Court arc liable to be dismissed for non-joinder of necessary parties. Further, she submitted that, the Trial Court has failed to frame necessary issue for its consideration as per Section -2 of the Forest (Conservation) Act, 1980 and thirdly, she submitted that, the Trial Court has failed to consider the Ex.P1 to P6 from which it is ciystal <:-!ear that, it is the specific case of the appellants that an extent of 35 acres have been encroached and out that, an extent of 17 Acres 35 guntas have been granted in favour of the respondents by the Tahsildar and Assistant Commissioner and the same is one without jurisdiction. Therefore, she submitted that the impugned judgments and decree passed by the Trial Court is liable to be set aside.

6. As against this, learned counsel for the plaintiffs respondents. inter alia, contended and substantiated the impugned judgments and decree passed by the Trial Court. Further, he submitted that, the Trial Court after considering the material on record, has passed the said judgments and decree and the same is just and reasonable. Further, learned counsel for the plaintiffs- respondents submitted that, it is the specific case of the Revenue Department that, out 64 acres of gomal land in Sy.No. 369, the lands in question have been granted by the concerned authority after conducting enquiry infavour of the plaintiffs-respondents, as they have filed necessary applications for grant, on the ground that they are cultivating the said lands unauthorized. Therefore, learned counsel for the plaintiffs-respondents submitted that, this aspect of the matter has been rightly considered by the Trial Court and after recording the finding of fact that, inspite of giving sufficient opportunity to the appellants they failed to prove that the lands in question is a forest lands and that the plaintiffs respondents have encroached the same, has decreed the suits. Therefore, he submitted that, interference by this Court is not called for.

7. After hearing the learned counsel for both the parties, after careful perusal of the impugned judgments and decree passed by the Trial Court in these appeals. including the original records available on file at threadbare, il emerges that, the Trial Court has committed an error of law, much less material irregularity which has resulted in miscarriage of justice in decreeing the said suits. It is significant to note that, it is the duty caste on the Trial Court to frame necessary issues for its consideration on the basis of the pleadings of both the parties, it is the specific case of the appellants that, an extent of 35 acres 24 guntas in Sy.No.369 have been encroached by the eneroachers including the plaintiffs. To substantiate the said submission, placing reliance on Exs.Dl to D7, learned Government Pleader has submitted that, from the preamble of Ex.07 itself, it is crystal clear that there is an encroachment. But the Trial Court has not looked into or considered or appreciated and applied its mind to the relevant provisions of the Forest (Conservation) Act 1980. Section- 2 of the said Act, deals with restriction on de-reservation of forest: or use of forest hind for non forest purpose and therefore, the Trial Court ought to have framed the first issue for its consideration on this aspect. In not framing necessary issues for its consideration on this aspect, the Trial Court has committed an error. Secondly, as rightly pointed out by the learned Government Pleader for the appellants, it is the case of the Revenue Department that the laud measuring 64 acres carved out of Sy.No.369 is a gomal land and if it is a gomal land, certain procedures are prescribed in the relevant provisions of the Act and Rules for granting the same. After careful perusal of the records made available by the learned Government Pleader from the office of the Tahsildar, it is (dear that, while granting the said lands in favour of plaintiffs-respondents, there is no whisper in the said order about the release of the said lands from gomal lands or no documents are available to show that the said lands have been released from the gomala lands and it has been made available for grant or regularisation in favour of unauthorised cultivators/encroached like plaintiffs and others. Further, the plaintiffs-respondents have committed a grave error in not impleading the necessary parties to the present case, as the grant is made by the Tahsildar and Assistant Commissioner of the Revenue Department, they are necessary parties to the suits.. The Trial Court ought to have considered these aspects of the mater while passing the impugned judgments and decree. But Without any basis, the Trial Court has proceeded to record the finding of fact contrary to the material on record and without looking into the root cause and ground reality of the facts and circumstances of the case. Therefore, after re-appreciation of the materials available on record, we are of the considered view that, at any stretch of imagination, the impugned judgments and decree passed by the Trial Court cannot be sustained and they are liable to be set aside, without going further into the merits and demerits of this case.

8. For the foregoing reasons, these appeals filed by the appellants are allowed in part The impugned judgments and decree dated 21' April 2007 passed in O.S. No.201 / 2003 (in RFA No. 1946/2007). O.S.No.262/2003 {in RFA No. 1947/2007) and O.S No.263/2003 (in RFA No. 1948/2007) by the Trial Court are hereby set aside and the matter stands remitted back to the Trial Court for reconsideration of the same afresh and to pass appropriate orders, in accordance with law, without being influenced by .he observations made by the Trial Court in its judgments and dispose of the same, after affording reasonable opportunity of hearing to the appellants arid respondents personally or through their counsel, as expeditiously as possible, within six months from the dale cf receipt of a copy of this judgment made available by the parties. Further, appellants and respondents are permitted to adduce or produce their additional evidence, if any. to substantiate their case. The appellants and respondents are directed to be appear before the Trial Court on 30th May 2011 at 3.00 p.m., to take the next date of hearing without fail.