The State Of Karnataka vs M.A. Mohamad Sanaulla

(arising out of SLP (Civil) Nos. 17195 of 2021)

THE STATE OF KARNATAKA & ANR ...APPELLANT(S)

VERSUS

M.A. MOHAMAD SANAULLA & ANR. ...RESPONDENT(S)

JUDGMENT

VIKRAM NATH, J.

The appellant State of Karnataka has preferred this

appeal assailing the correctness of the judgment and order

dated 16.04.2021 passed by the Division Bench of the High

Court of Karnataka in Regular First Appeal No.1287 of 2012, Signature Not Verified

“The State of Karnataka and another vs. M.A. Mohd. Digitally signed by DEEPAK SINGH Date: 2022.09.20 17:32:18 IST Reason:

Sanaulla and another” whereby the appeal of the State was

1 dismissed along with a cost of Rs.1 lakh with certain adverse

remarks against the State law officer conducting the matter

with a direction to conduct enquiry also. The High Court had

confirmed the judgment and decree of the Trial Court dated

08.03.2012 passed in OS No.1424 of 2006 whereby suit for

declaration, possession and permanent injunction filed by

the State- appellant was dismissed.

FACTS:

2. The dispute relates to land situated in village

Chikkasanne within Bhuvanahalli State Forest area.

Notification dated 08.01.1921 issued under Section 4 of the

Forest Regulation read with Section 17 of the Mysore Forests

Regulations declared that with effect from 01.02.1921 an

area of 59 acres 08 guntas equal to 09 square miles in Taluk

Devanahalli, District Bangalore (Block Bhuvanahalli)

comprising of lot no. 66, 67 and 68 of village Chikkasanne

to be a State Forest. Later on, at some stage during resurvey,

2 Survey No. 67 measuring 44 acres 29 guntas was given new

Survey No. 69 for the same area.

3. During an auction sale held on 13.09.1936 by the Court

for recovery of arrears of land revenue, and confirmed on

19.11.1936 Survey No. 69 measuring 43 acres and 24

guntas was purchased by one T.N.Subbaraiya Mudaliar.

Later on, vide sale deed dated 19.08.1977, the respondent

No.1 purchased 08 acres 35 guntas of Survey No. 69 from

the auction purchaser/his successor-in-interest. The

respondent No.1 claimed to have continued his possession

but on account of some interferences by the State

authorities, he was compelled to approach the Civil Court.

4. The respondent No.1 instituted OS No. 600 of 1981

against the forest department praying for the relief of

permanent injunction from interfering with his peaceful

possession and enjoyment in respect of the suit schedule

3 property being 08 acres 35 guntas of dry land in Survey No.

69 with the boundaries described in the schedule.

5. The Court of Munsiff, Devanahalli vide judgment and

order dated 13.12.1985 dismissed the suit with cost.

Aggrieved by the same, the respondent No.1 preferred an

appeal in the Court of the Principal Civil Judge, Bangalore,

registered as R.A. No.10/1986. The said appeal was allowed

vide judgment dated 24.07.1989 by setting aside the

judgment and decree of learned Munsiff and decreeing the

suit.

6. The State of Karnataka, preferred Regular Second

Appeal No. 673 of 1996 before the High Court. During the

pendency of the Second Appeal, the State of Karnataka

instituted OS No. 34 of 1997 against the respondent No.1 for

declaration that the suit schedule land and trees of the

cashew nuts and other trees grown in the said land are part

and parcel of Bhuvanahalli Forest block; that the

4 respondent No.1 has no manner of right, title and interest

over the schedule land. Further, consequential reliefs by way

of mandatory injunction directing the respondent to remove

the illegal fence put up by him on the schedule land was also

prayed for. The schedule land was the same land as

described in the OS No. 600 of 1981 instituted by the

respondent No.1. Later on, the said suit OS No. 34 of 1997

was renumbered as OS No.1424 of 2006 for the reason that

it was transferred to Fast Track Court, Devanhalli.

7. The appellant -State after filing of the above suit moved

a memo in the Second Appeal No. 673 of 1996 to withdraw

the appeal in view of the fact that it had already instituted

OS No. 34 of 1997 in the Court of Civil Judge, Bangalore.

The appeal was accordingly dismissed as withdrawn on

11.03.1997.

8. The respondent No.1 contested the suit and filed written

statement. Issues were framed. Parties led evidence. The

5 Trial Court vide judgment and order dated 08.03.2012

dismissed the OS No.1424 of 2006.

9. The State of Karnataka preferred Regular First Appeal

before the High Court of Karnataka registered as RFA

No.1287 of 2012. In the meantime, criminal proceedings

were initiated against the respondent No.1 under the

relevant forest laws. The respondent No.1 preferred separate

criminal petitions bearing Criminal Petition Nos.1852-57 of

2012 under Section 482 of the Code of Criminal Procedure,

19731, for quashing such proceedings. The learned Single

Judge vide order dated 13.06.2012 allowed the petitions and

quashed the criminal proceedings. However, at the same

time, it granted liberty to the Forest Department that if there

is any encroachment it may conduct the survey and proceed

in accordance with law.

1 In short “CrPC”

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10. On the strength of the said order passed by the High

Court on 13.06.2012, broader survey both physical as well

as aerial was carried out on 09.01.2015 after due notice to

respondent No.1. The survey team comprised of the officers

from the Revenue Department as also the Forest

Department. Notice for the inspection was served upon

respondent No. 1 as also the managing partner of

respondent No. 2 one Shri Balakrishna received the survey

notice. It is, however, recorded that at the time of the survey

neither of the two respondents were present.

11. A sketch map was also prepared of the site showing the

boundaries marked during the inspection. Further, notice

was issued to the respondent No.1, his heirs and some

others who were found to be in illegal possession of the

same. The fact which emerged from the inspection/survey

was that the State premises were encroached upon. This

development having taken place during the pendency of the

7 RFA No. 1287 of 2012 before the High Court, the appellant-

State moved an application under Order 41 Rule 27 of the

Code of Civil Procedure, 19082 to take on record evidence

relating to the survey. This application was registered as IA

No. 1 of 2021.

12. The High Court, vide impugned judgment dated

16.04.2021 not only dismissed the appeal of the appellant

but by the same judgment and order also rejected the

application under Order 41 Rule 27 of the CPC. Aggrieved

by the same the present appeal is before us.

13. The submissions of Shri Nikhil Goel, learned counsel,

for the appellants are briefly noted as under:

(i) The Range Forest Officer, who was examined as PW1,

did not present himself for cross-examination on the

date fixed i.e. 21.01.2012 and within a short span the

Trial Court vide judgment dated 08.03.2012

2 In short “CPC”

8 proceeded to decide the suit with a finding that as

PW1 did not present himself for cross-examination,

the State failed to prove that the scheduled land was

forest land. The submission is that a reasonable

opportunity ought to have been given for producing

PW1 for cross-examination or in the alternative the

State could have produced another witness. The Trial

Court acted in great haste by deciding the suit in less

than 45 days from the date on which PW1 failed to

appear; thus, there has been failure to provide

adequate opportunity.

(ii) The joint survey was carried out on 09.01.2015

consequent to the liberty given by the High Court vide

judgment dated 13.06.2012 while quashing the

criminal proceedings initiated under the Forest Act

against the respondent. The joint survey had been

carried out physically as also by aerial survey and the

9 said report along with ancillary material was sought

to be placed along with an application under Order

41 Rule 27 of the CPC. The said survey had been

carried out during the pendency of the First Appeal

before the High Court. The High Court ought not to

have rejected the said application. It committed a

serious error in rejecting the same, thereby denying

adequate opportunity to the State-appellant;

(iii) Survey Nos. 66, 67 and 68 were part of the original

notification of 1921 along with some other survey

numbers. During resurvey plot no. 67 measuring 44

acres 29 guntas was assigned new Survey No. 69.

The said document of the old numbers being

converted into new numbers is part of the counter

affidavit of respondent no.1. The courts below

proceeded on the premise that as the 1921

notification declaring 59 acres 8 guntas as reserve

10 forest included Survey Nos. 66, 67 and 68 apart from

other numbers. It, however, did not include Survey

No. 69, therefore, the claim of the State was not

tenable. Courts below committed an error in not

taking into consideration the changed numbers

allotted after the resurvey;

(iv) The entire area of Survey No. 69 is not in dispute. It

is only the area of 8 acres and 35 guntas of dry land

of Survey No. 69 which is under dispute. The issue is

that once Survey No. 67 had been renumbered as

Survey No. 69, it could not have been sold. The land

in the auction of 1936 which was in respect of Survey

No. 69 was with respect to an area measuring 43

acres and 24 guntas. It is more or less the same

survey number which was earlier Survey No. 67 and

now is given Survey No. 69. The submission is that

once land in dispute was declared in 1921 as forest

11 land, the same could not have been auctioned and

subsequently sold to the respondent.

14. On the other hand, Mr. Sundaram, learned senior

counsel appearing for respondent No.1, made detailed

submissions which are briefly recorded as under:

(i) Once the 1936 auction and the subsequent sale deed

of 1977 had not been challenged, the suit has been

rightly dismissed by the courts below;

(ii) The auction sale of 1936 was a court sale for recovery

of land revenue which also clearly establishes that

the Survey No. 69 measuring 43 acres and 24 guntas

was not forest land;

(iii) The State has acted in discriminatory manner by

picking up the respondent and proceeding against it

with respect to part of Survey No. 69 and has not

taken any action whatsoever with respect to the

remaining land owners;

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(iv) The revenue authorities have partitioned Survey No.

69 into five sub plots i.e. 69/1 to 69/5, which clearly

reflects that it is not forest land.

(v) The entire area of Survey No. 69 is fully developed

and by no stretch can it be said to be forest land;

(vi) The revenue entries right from 1936 onwards are in

favour of the auction purchasers and its successors.

(vii) The alleged criminal proceedings initiated by the

State against the respondent were quashed by the

High Court.

(viii) Reliance has been placed upon the judgment in the

case of Elizabeth Jacob vs. District Collector,

Iddukki & Ors.3, for the proposition that merely

alleging that a land is a forest land is not enough; it

has to be established; the State had completely failed

to establish that it was forest land.

3 2008(15) SCC 166

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15. We have considered the submissions and have also

examined the records minutely.

16. Having given a thoughtful consideration to the entire

conspectus, we are of the view that the State has been

denied adequate opportunity by the Courts below and

certain material documents have not been taken into

consideration by the courts below as such it would in the

fitness of things and in the interest of justice that the matter

may be remitted back to the Trial Court. Accordingly, we are

not going into greater details of the merits of the matter as it

may prejudice the courts below in the fresh determination.

However, we wish to point out briefly the reasons for the

remand.

17. The Forest Range Officer PW-1 who had given his

examination-in-chief was supposed to appear on 21.01.2012

for cross-examination. He did not appear on the said date.

There could have been many reasons for his non-appearance

14 both genuine and ingenuine. In a state machinery, it takes

reasonable time to nominate and arrange for another officer

to come and give evidence in court. Trial Court ought to have

given adequate opportunity to the State. The time for

producing a witness to prove the plaint averments as also

other supporting material ought to have been extended in

the interest of justice.

18. The document dated 14.08.1979 clearly reflected that

Survey No. 67 (old) had been renumbered in resurvey as

Survey No. 69 (new). It is not in issue that in 1921

notification under the Forest Regulation Survey No. 67 was

covered. Subsequently in the resurvey, its number is

changed to 69. It would automatically be understood that

Survey No. 69 (new) was notified as Forest Land way back in

1921. This aspect of the matter of whatever worth it may be

has been left out for consideration by the courts below.

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19. IA No.1 of 2021 was filed before the High Court under

Order 41 Rule 27 CPC. The State wanted to place on record

as evidence the documents relating to the survey conducted

on the strength of the Order of the High Court dated

13.06.2012 passed in criminal petitions under section 482

CrPC quashing the FIRs. This exercise having been

undertaken after the judgment of the Trial Court dated

08.03.2012 the survey report and the other material related

to it ought to have been allowed by the High Court to be

admitted as evidence as it was relevant for the proper

adjudication for the issues arising in the suit, of course with

the rider that the respondent would have a right of rebuttal.

The High Court in our opinion erred in rejecting the IA No.1

of 2021.

20. For the reasons recorded above the appeal is allowed.

The impugned judgment of the High Court dated 16.04.2021

and that of the Trial Court dated 08.03.2012 are set aside.

16 The matter is remanded to the Trial Court for afresh decision

after affording due opportunity of leading evidence to the

appellant both documentary and oral and corresponding

right of rebuttal to the respondent to lead oral and

documentary evidence. As the suit is of the year 1997, we

expect the Trial Court to make an endeavor to decide the suit

expeditiously preferably within a period of one year. It goes

without saying that the parties will extend their cooperation

in early disposal of the suit. There shall however be no order

as to costs.

…………..........................J. [HEMANT GUPTA]

.………….........................J. [VIKRAM NATH]

NEW DELHI SEPTEMBER 20, 2022.

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