- 1 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 4TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO. 5015 OF 2008 (INJ) BETWEEN: SHRI. SHANKAR DATTA NAIK AGE: 49 YEARS, OCC: AGRICULTURE, R/O: PAIDA VILLAGE, POST: TINNEGHAT, TQ. JOIDA …APPELLANT (BY SRI. PRAKASH B. ANGADI, ADVOCATE) AND: 1. THE DEPUTY CONSERVATOR OF FORESTS HALIYAL DIVISION, HALIYAL. TQ. HALIYAL, DIST. UTTAR KANNAD. 2. THE ASSISTANT CONSERVATOR OF FORESTS ALNAVAR SUB-DIVISION, GANESHGUDI, POST: GANESHGUDI, TQ. JOIDA. 3. THE RANGE FOREST OFFICER TINEGHAT, TQ. JOIDA. 4. THE SECTION FORESTER, KARAMBAL, POST: ANMOD, TQ. JOIDA. 5. THE GOVERNMENT OF KARNATAKA REPRESENTED BY THE DEPUTY COMMISSIONER, UTTAR KANNAD, KARWAR. …RESPONDENTS (BY SRI. PRAVEENA Y. DEVAREDDIYAVAR, HCGP) Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.09.15 10:44:02 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 31.05.2008 PASSED BY THE COURT OF THE CIVIL JUDGE (SR.DN.) YALLAPUR IN R.A.NO.35/2007 CONFIRMING THE JUDGMENT AND DECREE DATED 20.03.2007 PASSED IN O.S.NO.48/2004 ON THE FILE OF THE COURT OF THE CIVIL JUDGE (JR.DN.) DANDELI. THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The appellant, who was the plaintiff in O.S.No.48/2004 on the file of Civil Judge, Junior Division, Dandeli (for short, ‘the trial Court’) has preferred this appeal against the Judgment and Decree dated 31.05.2008 passed in R.A.No.35/2007 by the Civil Judge, Senior Division, Yellapur (for short, ‘the first appellate Court’). 2. The parties herein are referred to as per their rank before the trial Court. 3. Brief facts leading to filing of this appeal are that, the plaintiff is in actual possession and enjoyment of the suit land for more than four decades and his name is also entered in the record of rights in the year 1975-76. He has also raised fruit bearing trees in the said land. The request of the plaintiff for - 3 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 regularization is pending before the defendant No.2. In the meantime, in the second week of July, 2003 the defendant No.4 and his subordinate trespassed into the suit land and attempted to put forest plantation by destroying the cultivation made therein. Same was resisted by the plaintiff and thereafter plaintiff and few others met defendant No.1 on 22.07.2003 at Haliyal office and requested him to initiate suitable action against defendant No.4. Defendant No.1 assured the plaintiff and others that he will take necessary action in the matter, but same was not done. Plaintiff made similar requests to defendants No.2 and 3 in that regard and also approached the D.C.Karwar, but defendant No.4 and his subordinates attempted to cause injustice to the plaintiff and his family members by taking law into their hands illegally. Hence, the plaintiff constrained to issue a legal notice to the defendants, however thereafter, defendant No.4 and his subordinate had stopped their illegal acts. On 19.12.2003 another notice was issued on behalf of the plaintiff and others calling upon defendant No.2 to inform the latest position of the pending proceedings of regularization before him. Said notice was served on him on 22.12.2003 and there was no response from him, hence a reminder notice was again issued to - 4 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 him on 27.01.2004 and there was also no response and he has finally sent a reply on 25.02.2004 informing that the Government of Karnataka has constituted an Encroachment Regularization Committee for Joida Taluka and directed the plaintiff to approach the said committee for redress. Even though the plaintiff has approached the said committee, no meetings are so far held and no enquiry has been proceeded with concerning the matter. 4. This being the situation, defendant No.4 again trespassed into the suit land with his subordinates and has threatened the plaintiff that plantation work will be taken up by him in the suit land within few days and they will be forcibly evicted from the suit land. The plaintiff cannot be evicted from the suit land without due process of law. The plaintiff has also perfected his title over the suit land by adverse possession. Hence, plaintiff has constrained to file the suit. 5. In the written statement filed by defendant No.3 which is adopted by defendants No.1, 2 and 4 through memo, it is contended that suit of the plaintiff is false and not maintainable. The description of the suit property is vague. It is denied that plaintiff is in possession and enjoyment of the suit - 5 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 land for the last four decades and further denied the contents of plaint para Nos. III(2) to (4) and also as to the cause of action. 6. They further contented that the suit land is a Forest Land, plaintiff has made encroachment as such he has been prosecuted for violation of the provisions of the Forest Act. In view of the Government decision for regularization of the encroachment of forest land prior to 1978, a Committee has been constituted. Plaintiff has not moved any application before the authority seeking regularization of encroached land and hence eviction order has been passed by the defendant No.2. Plaintiff in order to harass the defendants, filed the false suit. Plaintiff cannot question the legal activities of the defendants contending as legal duties and function as interference and obstruction. The defendants have never made any attempt to evict the plaintiff from the encroachment area illegally, as the appeals are pending before the conservator of Forest, Sirsi against the order of the Assistant Conservator of Forests., Alnavar, Sub-Division, Ganeshgudi. The plaintiff not approached the Court with clean hands and hence defendants pray to dismiss the suit with compensatory costs. - 6 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 7. On the basis of pleadings, the trial Court has framed four issues. To prove the case of plaintiff, plaintiff himself has examined as P.W.1 and another examined on behalf of him as P.W.2 and got marked 17 documents as Ex.P.1 to Ex.P.17. On the other hand, defendants examined two witnesses as D.W.1 and D.W.2 and got marked 07 documents as Ex.D.1 to Ex.D.7. 8. Having heard the arguments on both sides, the trial Court has decreed the suit in favour of the plaintiff by granting perpetual injunction against defendants restraining them from obstructing the peaceful possession and enjoyment by the plaintiff until evicted under due process of law. Being aggrieved by the Judgment and Decree passed by the trial Court, respondent authorities have preferred the appeal before the first appellate Court in R.A.No.35/2007, which came to be allowed and suit of the plaintiff was dismissed. Being aggrieved by the Judgment and Decree passed by the first appellate Court, the appellant/plaintiff has preferred this regular second appeal. 9. This Court has admitted this appeal as per the order dated 29.08.2008 and formulated the following substantial question of law: - 7 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 “Whether the first appellate Court was justified in reversing the finding of the trial Court on possession of the suit property by the appellant and thereby reversing the decree of the trial Court?” 10. Learned counsel Sri Raghuveer R. Sattigeri, appearing for the appellant/plaintiff, vehemently contended that the plaintiff admittedly being in possession of the suit property and having filed various applications for regularization and grant of the property in his favour, no orders have been passed on the application/request made by the plaintiff and hence till such orders are passed, the plaintiff is entitled to an order of injunction. Hence, he seeks for setting aside the order of the first appellate Court and confirming the judgment and decree passed by the Trial Court. 11. Per contra, the learned HCGP Sri Praveen Y. Devareddiyavara representing the respondents, submits that the plaintiff is an encroacher of the forest land and the authorities have initiated proceedings under Section 64A of the Karnataka Forest Act, 1963 (for short, ‘the Act, 1963’). That the plaintiff has been notified of the said proceedings and he has replied to the said notices by contending that due to the pendency of the - 8 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 present litigation, the said enquiry is required to be dropped. It is further contended that despite various notices, the plaintiff is repeatedly appearing in the proceedings and taking time on the ground of pendency of the present appeal before this Court. 12. It is further submitted that the earlier proceedings under Section 64A of the Act of 1963 having been initiated by the Office of the Range Forest Officer, Tinnaighat, has subsequently been transferred and presently the proceedings under Section 64A of the Act of 1963 are being prosecuted by the Office of the Assistant Conservator of Forests, Wildlife Sub- division, Dandeli. 13. The learned HCGP has produced the copy of the Judgment passed by this Court in RSA.No.5016/2008 which is similar to the present appeal and submitted that this Court has dismissed the appeal filed by the appellant therein. Further, he would submit that the appellant has not preferred SLP before the Hon’ble Supreme Court as on today against the Judgment and Decree passed by this Court in RSA.No.5016/2008. - 9 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 14. Learned counsel for the appellant has admitted the Judgment and Decree passed by this Court in RSA.No.5016/2008. 15. The submissions of both the learned counsels have been considered and the oral and documentary evidence on record including records of the Trial Court and first Appellate Court have been perused. 16. It is not in dispute that the proceedings under Section 64A of the Act of 1963 have been initiated by the defendant- authorities against the plaintiff. Section 64A of the Act of 1963 reads as follows: “64-A. Penalty for unauthorisedly taking possession of land constituted as reserved forest [district forest, village forest, protected forest and any other land under the control of the Forest Department].-(1) Any person unauthorisedly occupying any land in reserved forest, "[district forest, village forest, protected forest and any other land under the control of the Forest Department) may, without prejudice to any other action that may be taken against him under any other provision of this Act or any other law for the time being in force, be summarily evicted, by a Forest Officer not below the rank of an Assistant Conservator of Forests and any crop - 10 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 including trees raised in the land and any building or other construction erected thereon shall, if not removed by him within such time as the Forest Officer may fix, be liable to forfeiture: Provided that before evicting a person under this sub-section he shall be given a reasonable opportunity of being heard. (2) Any property forfeited under sub-section (1) shall be disposed of in such manner as the forest Officer may direct and the cost of removal of any crop, building or other work and of all works necessary to restore the land to its original condition shall be recoverable from the person evicted in the manner provided in Section 109. (3) Any person aggrieved by an order of the Forest Officer under sub-section (1) may, within such period and in such manner as may be prescribed, appeal against such order to the State Government or to such officer as may be authorised by the State Government in this behalf and the order of the Forest Officer shall, subject to the decision in such appeal, be final.” (emphasis supplied) 17. From a reading of Section 64-A of the Act of 1963, it is clear that a complete procedure is specifically stipulated under a specific statute for eviction of persons found to be in un- authorized occupation of forest land. It is further relevant to note - 11 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 that Section 64-A(3) of Act of 1963, provides an appeal remedy also. The defendant-authorities, having noticed that the plaintiff is in possession of the forest land, on the ground that the same is an encroachment has initiated proceedings for eviction of the plaintiff. 18. The contention of the plaintiff is that various representations/applications have been made for granting/ regularization of the suit property in which he is in possession. Possession of the plaintiff has to be protected until evicting them under due process of law. 19. The contention of the plaintiff that he is entitled to regularization is required to be made in the said proceedings, since consideration of the same depend on various factual aspects as well as various policies of the State. Proceedings having been initiated against the plaintiff in accordance with law and the plaintiff will not be entitled to an order of injunction as is sought for in the plaint. 20. In view of the aforementioned, the first appellate Court was justified in setting aside the decree passed by the Trial - 12 - HC-KAR NC: 2025:KHC-D:11405 RSA No. 5015 of 2008 Court. Hence, the substantial question of law framed by this Court is answered in the ‘negative’. 21. It shall be open to the plaintiff to participate in the proceedings initiated by the defendants under Section 64A of the Act of 1963 and urge all the contentions as also, to pursue such other remedies as available to the plaintiff, in accordance with law. 22. Hence, the following: ORDER i. The appeal is dismissed; ii. The Judgment and Decree dated 31.05.2008 passed in R.A.No.35/2007 by the Civil Judge, Senior Division, Yellapur, is confirmed. Sd/- (G BASAVARAJA) JUDGE CKK Ct-cmu List No.: 1 Sl No.: 0