THE STATE OF KARNATAKA & ANR VERSUS M.A. MOHAMAD SANAULLA & ANR.

THE STATE OF KARNATAKA & ANR VERSUS M.A. MOHAMAD SANAULLA & ANR.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



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Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 5801 OF 2022
(arising out of SLP (Civil) Nos. 17195 of 2021)
THE STATE OF KARNATAKA & ANR ...APPELLANT(S)
VERSUS
M.A. MOHAMAD SANAULLA & ANR. ...RESPONDENT(S)
J U D G M E N T
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,
“The State of Karnataka and another vs. M.A. Mohd.
Sanaulla and another” whereby the appeal of the State was
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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,
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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
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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
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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
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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
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RFA No. 1287 of 2012 before the High Court, the appellantState 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”
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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
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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
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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
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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
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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.
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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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