- 1 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 795 OF 2007 (DEC) BETWEEN: SRI. PREMANAND R. BALIGA, S/O. RAYA BALIGA, AGE: 62 YEARS, OCC: BUSINESS, R/O. SAMPAKHAND, TQ: SIRS, DIST: KARWAR. ...APPELLANT (BY SRI. M.S. HARAVI, ADVOCATE) AND: 1. NARASHIM ISHWAR HEGDE, SINCE DEAD BY HIS LR’S. 1A. MAHADEVI W/O. NARASHIM HEGDE, AGE: MAJOR, 1B. NETRAVATI NARASHIM HEGDE, D/O. NARASHIM HEGDE, AGE: MAJOR, 1C. PARWATI NARASHIM HEGDE, D/O. NARASHIM HEGDE, AGE: MAJOR, 1D. VINAYAK NARASHIM HEGDE, S/O. NARASHIM HEGDE, AGE: MAJOR, YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 1E. ISHWAR NARASHIM HEGDE, S/O. NARASHIM HEGDE, AGE: MAJOR, [ALL ARE R/O. KURSEMANE, TAL: SIRSI, DIST: KARWAR.] 2. RAMACHANDRA S/O. ISHWAR HEGDE, SINCE DEAD BY HIS LR’S. 2A. MADHUMATHI W/O. RAMANTAH HEGDE, AGE: 50 YEARS, OCC: HOUSE WIFE, R/O. UGRESHWAR, POST: HARUGAR GOLI, TAL: SIRSI, DIST: KARWAR. 2B. SUJATHA W/O. SHRIDHAR HEGDE, AGE: 42 YEARS, OCC: HOUSEHOLD, R/O. SAMPAKHAND, TAL: SIRSI, DIST: KARWAR. 2C. GANGA W/O. RAMACHANDRA BHAT, AGE: 40 YEARS, OCC: HOUSEHOLD, R/O. MATTIGAR, TAL: SIRSI, DIST: KARWAR. 3. VENKATARAMANA HEGDE, S/O. ISHWAR HEGDE, AGE: MAJOR, R/O. SAMPAKHANDA, TQ: SIRSI, DIST: KARWAR. …RESPONDENTS (BY SRI. S.G. HEGDE, ADVOCATE FOR R1(A)-R1(E), R2 & R3; SRI. VISHWANATH HEGDE, ADVOCATE FOR R1(A-E), R2(A-C) AND R3; R2-DECEASED) - 3 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE DATED 17.1.2007 PASSED BY THE CIVIL JUDGE (SR.DN.) SIRSI IN R.A.NO.28/1992 AND THE JUDGMENT AND DECREE DATED 25.1.1992 PASSED BY THE LEARNED CIVIL JUDGE (JR.DN) SIRSI IN O.S.NO.107/1990 AND CONSEQUENTLY REJECT THE SUIT. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 09.04.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH CAV JUDGMENT 1. This appeal is preferred by the defendant challenging the judgment and decree dated 17.01.2007 in R.A.No.28/1992 on the file of the Civil Judge (Sr.Dn), Sirsi1 dismissing the appeal and confirming the judgment and decree dated 25.01.1992 in O.S.No.107/1990 on the file of the Principal Munsiff, Sirsi2 decreeing suit of the plaintiff in part. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 4 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 3. It is the case of the plaintiffs that the plaintiffs are in enjoyment of the suit schedule property i.e., Betta bearing Sy.No.143/B4 of Sampakhand village, Sirsi Taluk, measuring 15 acres 38 guntas. The plaintiff has produced the sketch along with the plaint, identified the same as ‘ABCD’. It is further stated in the plaint that the plaint schedule property was given for beneficial enjoyment of their garden lands and grant was made by the Government, and therefore, the grant of the land is the ancestral property of the plaintiffs. It is further averred in the plaint that the defendant has put up a shed in the schedule property and was residing in the house of one Juje Vaz and conducting a petty business. It is further stated that the defendant has interfered with the peaceful possession of the suit schedule property of the plaintiffs and tried to put up a shed on a road leading towards Kugtemane, Hirekai, Bommankone villages and therefore, the plaintiffs have filed suit in O.S.No.107/2019 seeking relief of declaration, and permanent injunction as well as mandatory injunction against the defendant. The plaint - 5 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 was amended subsequently and the plaintiffs have claimed the declaration in respect of entire Betta in Sy.No.143/B4. 4. After service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant that the description of the suit property is incorrect and accordingly, denied the plaint sketch produced along with the plaint. The defendant admits that the defendant is residing in the house of Juje Shiva Vaz and stated that he has not put up shed in the suit schedule property belonging to the plaintiffs and accordingly, he further contended that the shed is not situated in the public road and further KSRTC bus stop is situate towards west of the shed belonging to the defendant on Kumta- Sirsi Highway and accordingly, sought for dismissal of the suit. 5. The Trial Court, based on the pleadings on record, has framed issues and additional issues for its consideration. In order to establish their case, the - 6 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 plaintiffs have examined three witnesses as PW1 to PW3 and produced three documents and same were marked as Ex.P1 to Ex.P3. The defendant has examined three witnesses as DW1 to DW3 and got marked 4 documents as Ex.D1 to Ex.D4. The Court Commissioner was also examined as CW1. 6. The Trial Court, after considering the material on record, by its judgment and decree dated 25.01.1992 decreed the suit in part by granting relief of mandatory injunction to remove the shed situate in ‘ABCD’ area stated in the plaint sketch, however, rejected the relief of declaration and permanent injunction. Feeling aggrieved by the same, the defendant has preferred R.A.No.28/1992 on the file of the First Appellate Court and same was resisted by the plaintiffs. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 17.01.2007, dismissed the appeal, consequently confirmed the judgment and decree in - 7 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 O.S.No.107/1990. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 7. This Court, vide order dated 12.08.2011 formulated the following substantial question of law: “Whether the Trial Court is not justified in granting in favour of the plaintiff in the said suit relief of mandatory injunction, despite holding that plaintiffs are not entitled to the relief of declaration and permanent injunction and whether the First Appellate Court is not justified in dismissing the first appeal of the appellant-defendant and confirming the Judgment and Decree of the Trial Court?” 8. This Court vide order dated 11.02.2025, with the consent of the parties, appointed Smt. Nandini B Somapur, learned Advocate as Court Commissioner to inspect the suit property and to file a report along with sketch and relevant photographs. Pursuant to the same, the Court Commissioner has filed the Commissioner Report on 21.03.2025. - 8 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 9. I have heard Sri.M.S.Haravi, learned counsel appearing for the appellant, and Sri.Vishwanath Hegde, learned counsel appearing for the respondents. 10. Learned counsel appearing for the appellant contended that both the Courts below have committed an error in disbelieving the village map produced at Ex.D3 wherein the plaintiff is entitled for using the road, which is situated adjacent to the shed belonging to the defendant to reach his land situate at Sy.No.143/B4. He further contended that the schedule property is the Betta land and belonged to the Government and further the plaintiffs have no right over the schedule property and accordingly sought for interference of this Court. 11. Nextly, it is contended by the learned counsel for the appellant that the report of the Court Commissioner filed before this Court provides for road to be accessible by the plaintiffs to reach the suit schedule property and the defendant has not interfered with the suit schedule property nor has put up shed as stated by the - 9 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 plaintiffs and therefore, sought for interference of this Court. 12. Per contra, Sri. Vishwanth Hegde, learned counsel appearing for the respondents, refers to Ex.P1 and Ex.P2 and submitted that the suit property is belonged to the plaintiffs as beneficiary by the government to enjoy the suit property as per Chapter X of the Karnataka Forest Manual and further argued that the First Appellate Court, after considering the material on record, held that the defendant has illegally put up shed in the land belonging to the plaintiffs and the said aspect of the matter was considered by both the Courts below on merits and accordingly, sought for dismissal of the appeal. He further contended that the plaintiffs have shown material before the Trial Court to establish that they are using the Betta land since time immemorial and if the shed put up by the defendant is allowed and same would cause irreparable loss and accordingly sought for confirming the judgment and decree passed by the First Appellate Court. - 10 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 13. Learned counsel appearing for the respondents filed memo along with the provisions contained under Karnataka Forest Manual pertains to Forest Privileges and emphasized on Rules 131-A and 131-F and contended that the plaintiffs have privileges in the forest land assigned to them as ‘Bettas’ and therefore sought for dismissal of the appeal. 14. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the findings recorded by both the Courts below and perused the records. On careful examination of the findings recorded by both the Courts below, would indicate that plaintiffs claim to be the beneficiaries of land and stated in the plaint that the suit schedule property has been granted to the ancestors of the plaintiffs. Undisputedly no document has been produced by the plaintiffs except RTC extracts at Ex.P1 and Ex.P2. Learned counsel appearing for the respondents pointed out about provisions under the Karnataka Forest Manual particularly - 11 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 Rules 131-A and 131-F. It is pertinent to mention here that, Rules 121 and 125 of the Rules reads as under: “121. The privileges sanctioned for the several districts of the State are grouped under: (i) Special privileges sanctioned for each district; and (ii) general privileges common to all districts. 125. The sanctioned privileges are to be enjoyed. (a) free of charge; (b) by forest villagers; (c) within limits of the forest villages; (d) in open forest; (e) without permit or special permission from forest officers, except where exceptions are mentioned under the respective privileges to be mentioned hereafter.” 15. No documents are produced by the plaintiffs as to grant of sanctioned privileges to the ancestors of the plaintiffs by the Government except the partition deeds, which are internal family documents of the plaintiffs. In a suit for declaration, it is the duty of the plaintiffs to - 12 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 produce relevant documents to establish as to how the plaintiffs have acquired the suit property. Since no documents have been produced by the plaintiffs to establish their rights in respect of the suit schedule property, the Trial Court has rightly dismissed the suit for relief of declaration. It is further case of the plaintiffs that the defendant has put up a shed in the suit land. It is to be noted here that neither the plaintiffs nor the defendant are the owners of the suit schedule property. It is the case of the plaintiffs that it is inconvenient for them to reach the suit schedule property and portion of the suit property has been encroached by the defendant by putting up shed. In this regard, on careful examination of the evidence of PW2 and PW3 on the side of the plaintiffs and DW2 and DW3 on the side of the defendant makes it clear that the shed has been put up adjacent to the Kumta-Sirsi road near Government Bus stand. Defendant has also produced village map at Ex.D3 wherein it envisages for access to the suit property by the plaintiffs. I have also carefully examined the report of the Court Commissioner filed - 13 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 before this Court and same was accepted as no objection has been filed by either side. Paragraph 5 of the Commissioner report reads as under: “5. That, on spot inspection it is seen that: a. The suit shed constructed by the defendant/appellant is temporary shed. b. To the west side of the suit shed is a bus stop and distance between suit shed and bus stand is 2 ft. To it’s north side NH766E road is there. c. At a distance of 18 ft panchayat road going towards Kugtemane from NH766E is there. d. The vacant portion behind the bus stand is also utilized by the appellant/defendant as a backyard. e. That, behind the suit shed at a distance of 1 to 2 ft there is rain water drainage way. f. That, the main road NH766E is at the height of 3 ft from the suit shed and bus stop. g. That, at present there is no road from NH766E to Kugtemane road passing from the disputed road. - 14 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 16. On careful examination of the report of the Commissioner and the hand sketch prepared therein, so also the photographs make it clear that a road has been formed by the Panchayat in Sy.No.143/B4, which is the suit schedule property. It is also disclosed in the Commissioner Report that the shed is situated near the bus stand and shed is located behind the bus stand and the distance between the bus stand and the road lead to Kugtemane is around 18 ft. In that view of the matter, taking into consideration the finding recorded by the Court Commissioner and the photographs annexed to the report makes it clear that the plaintiffs have the benefit of road formed by the Panchayat lead to suit schedule property. In that view of the matter, both the Courts below have committed an error in arriving at a conclusion that there is no alternative way for the plaintiffs to reach their schedule property as the defendant has put up a shed blocking the road as well as the shed has been put up in the portion of the land belonging to the plaintiffs, and the said finding - 15 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 recorded by both the Courts below requires to be set aside in this appeal. 17. Though the learned counsel appearing for the respondents refers to Chapter X of Karnataka Forest Manual pertains to Forest Privileges and in this regard Rule 131-F of the Forest Manual provides for privileges open to gardeners in protected forest assigned to them as ‘Bettas’. Having taken note of the language employed in the marginal note at Rule 131-F, the legislature has used word ‘assigned’. This aspect of the matter makes it clear that there must be a document to show that the forest privileges under Chapter X had the prerequisite of some document conferring privileges to the grantee. In the present case, no document has been produced by the plaintiffs supporting their case as to ‘assign’ the schedule property in favour of the plaintiffs and in the absence of the same, taking into consideration the declaration of law made by the Hon’ble Supreme Court in the case of Naganna (Dead) by LRs./Smt.Devamma and Others - 16 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 vs. Siddaramegowda (Since deceased) by LRs. and Others in Civil Appeal No.3688/2024 disposed of on 19.03.2025, I am of the view that the both the Courts below have committed an error in decreeing the suit of the plaintiffs ignoring the aforementioned aspect and therefore I find perversity in the judgment and decree passed by the Courts below. 18. It is pertinent to mention here that the Trial Court has dismissed the suit for relief of declaration and permanent injunction. Interestingly, the plaintiffs have not preferred any appeal questioning the judgment and decree passed by the Trial Court, despite being suffered the relief of declaration and permanent injunction. In this backdrop of aspect of the matter, both the Courts below have ignored the said aspect, particularly village map (Ex.D.3), which would establish the clear picture of the dispute between the parties. As the plaintiffs ought to have challenged the findings recorded by the Trial Court on issue No.1 and 2, I find force in the submission made by - 17 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 the learned counsel appearing for the appellant and the substantial question of law framed above favours the defendant. Hence, I pass the following: ORDER i) Appeal is allowed. ii) Judgment and decree dated 17.01.2007 in R.A.No.28/1992 passed by the Civil Judge (Sr.Dn), Sirsi, is hereby set aside. iii) Judgment and decree dated 25.01.1992 in O.S.No.107/1990 passed by the Principal Munsiff at Sirsi is hereby set aside in respect of granting relief of mandatory injunction and accordingly, the suit in O.S.No.107/1990 is hereby dismissed in entirety. - 18 - NC: 2025:KHC-D:6438 RSA No. 795 of 2007 iv) In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN LIST NO.: 1 SL NO.: 41