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Judgment
Ram Mohan Reddy, J.—The plaintiff in O.S. 186/94 on the file of the Addl.Civil Judge.Sr.Dvn), Shimoga, aggrieved by the Judgment and Decree dtd. 10.09.2001 in so far as it relates to finding on Issue Nos. 2 & 3 leading to the dismissal of the suit has preferred this appeal invoking Order 41 of CPC.
The case of the plaintiff is that the suit schedule property being agricultural land was purchased jointly along with his other siblings under a Registered Sale Deed dtd. 13.09.1989 for valuable consideration. Having fenced the boundary of the property by use of barbed wire, it is the allegation of the plaintiff that the Department of Survey and Land Records though issued notices to the Forest Department and the plaintiff for a survey on 12.12.1994 to fix the boundary, nevertheless, the defendant-Forest Department dumped mud on the side of the fence and on 8.1.94 removed a portion of the wire fence. Hence, the suit for declaration of title and permanent injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property.
That suit was opposed by filing written statement dtd.30.06.1995 of the respondent, inter alia, denying the allegations of interference while contending that the Government by Notification dtd.31.10.1974 under the Wild Life Protection, 1971, declared an extent of 97,647.7 acres enclosed in the boundaries detailed thereunder as "Shettyhalli Wild Life Sanctuary". The boundaries of the Forest Department, it is stated was demarcated by boundary stones and that the claim putforth by the plaintiff is imaginary. In addition, it is stated that the Department put up construction of watcher''s shed and a nursery in Shettyhalli Sanctuary. Lastly, the plaintiffs claim of having put up barbed wire fence is denied.
The trial court, in the premise of the pleadings of the parties, framed four issues, and an additional issue, recorded the depositions of the four witnesses as PW1 to 4, marked 60 documents as Ex.P1 to P60, while for the defendants one Satish Babu Rai was examined as DW1. The trial court, having regard to the material on record and appreciating the evidence both oral and documentary, answered the additional issue in the negative, that the plaintiff did not prove that he was the absolute owner of the suit schedule property. As regards, issue No. 1 whether the plaintiff proves his lawful possession over the suit property, the trial court answered the issue in the affirmative while in the negative, the issues 2 and 3 and accordingly, by the judgment and decree impugned dismissed the suit with costs.
Indisputably, the relief of declaration of title, was rightly rejected by answering in the affirmative the additional issue framed on 30,06.1999. Admittedly, the plaintiff is not the sole owner of the suit schedule property, since even according to him, the property, jointly, belongs to his brothers and himself, purchased under the sale deed dtd. 13.09.1989.
The answer in the affirmative over issue No l, whether the plaintiff is in lawful possession of the property is established by the evidence both oral and documentary. The State-defendant having not questioned the validity of issue No. 1, there is no necessity to review the reasons, findings and conclusions over the said issue.
The crux of the case of the plaintiff as set out in the memorandum of plaint discloses the allegations that the defendants are trying to form a road and make improvements over the suit schedule property, without following due process of law, by acquiring the said land and that on 8.11.1994, the defendant dumped mud on the side of the fence and removed the portion of the wire fence. In addition, the pleading is, existence of one Arecanut plant on the land and that if the defendants are not restrained by an interim order of injunction, the plaintiff''s investments over the land, would be wasted leading to inconvenience and hardship.
The oral testimony of PW1 is that the defendant''s officials requested the plaintiff to make over a small extent of land, which when refused, during December 1994, they removed the arecanut plant This oral testimony is not in the direction of supporting the allegation that mud was dumped on the side of the fence and that a portion of the fence was removed on 8.12.1994 or that a road was being formed inside the suit schedule property. This perhaps weighed in the mind of the Civil Court to record its finding on issue Nos. 2 & 4.
The trial court appointed the Assistant Director of Land Records, Shimoga(ADLR) PW4 as Court commissioner to survey the disputed properly with the assistance of planning section of the Forest Department, pursuant to which the plaintiff and the defendants filed separate Memo of Instructions in the matter of conducting the survey and taking measurements of survey Nos. 2,4, 7 & 8 of Shettyhalli. In the Memo of Instructions of the plaintiff, the court commissioner was directed to fix the boundaries of Survey Nos. 2, 3, 5, 6, 7 & 8 of Shettyhalli Village by locating the boundary stones and thereafter, to take up measurement of the lands in the survey numbers on the basis of the village map and tippani copies. In addition, the Commissioner was requested to show the existence of iron gate fixed to cement pillar along the road leading to the Quest House; the existence of Guest House of the Forest Department; and the survey number in which it is located; as also to take measurements of the existing previous approach road to the guest house. The plaintiff further requested the Commissioner to demarcate the boundaries of Survey Nos. 2 & 4 on the North Western side and point out the existence of the fencing in Sy. No. 2.
In the Memo of Instruction filed by the defendants, the Commissioner was requested to conduct & joint survey alongwith the departmental surveyor and the officer of the planning section of the District Forest Office, Shimoga, of the suit schedule property, so as to clearly demarcate the suit schedule property bifurcating the revenue as well as forest land; the existing road, its actual measurement and the approach road to the Guest House. In addition, the defendants sought marking of the barbed wire fence of the forest land.
The deposition of PW4 by name Annegowda, the Court Commissioner, discloses that the defendant-Forest Department, though served with the notice of conducting the survey, there was no representation and none were present: on the date of executing the commissioner''s warrant. According to PW4, there exists a road cutting across the suit schedule property in Sy. No. 2, an approach to the Inspection Bungalow located in Sy. No. 4 belonging to the Forest Department. Ex.C1 while describing the existence of a house in Sy. No. 2 also shows existence of an old road. Ex.C1 does not disclose existence of the alleged road leading to the plaintiff''s house in Sy. No. 2. Thus, the claim of the plaintiff that there exit a metal road leading to his house in Sy. No. 2 was disbelieved by the court below...
The trial court put a question to itself as to whether the road shown in Ex.C1 said to be cutting across Sy. No. 2 was the very same road that the plaintiff and his two other witnesses deposed to. The trial court, having accepted the evidence of DW1, the officer of the defendant-Forest Department that there exist a separate road leading to the inspection Bungalow in Sy. No. 4, disbelieved the case of the plaintiff and accepted the fact that a road shown in the sketch Ex.C1 cutting across Sy. No. 2 as the very same existing road in Sy. No. 4, to conclude that the plaintiff did not make out a case to answer issue Nos. 2 & 3 in the affirmative.
A bare perusal of Ex.C1, what is manifest is that the Court Commissioner who is none other than ADLR, having conducted the survey, in the absence of the officers of the Planning Section of Forest Department, did notice the existence of a metal road leading to the Forest Guest House in Sy. No. 4 of Shettyhalli cutting across Sy. No. 2 belonging to the plaintiff. A serious doubt arise as to whether the ADLR had in fact held a proper survey. The Memo of Instructions as noticed supra, clearly directed the Commissioner and ADLR-PW4 to survey and measure not only Sy. No. 2 but also Sy.Nos. 4, 7 & 8 in order to secure the correct. measurements and boundaries of the forest land and that of the land belonging to the plaintiff. If only the Commissioner had reckoned, the boundary stones of Sy.Nos.4, 7 & 8 to fix the boundaries arid measurements of Sy. No. 2, perhaps, would have thrown more light on the controversy brought before the trial court The oral testimony of PW4 in cross-examination that he had no material to establish that the map prepared by the Forest Department was in consonance with the sketch Ex.C1, is yet another fact situation leading to the conclusion that the report of the Court Commissioner was inconclusive. PW4 having not followed the instructions contained in the memo of instructions, in my considered opinion, has occasioned inconsistency in the matter of fixing the correct boundary of the property belong to the Forest Department and that of the plaintiff in Survey No. 2. Suffice it to state that there is a need to direct a re-survey, jointly, with the commissioner and the planning section of the Forest Department, with reference to the notification dtd. 31.10.1974, declaring 97,647.7 acres enclosed in the boundaries described I therein, so as to throw more light over the controversy and hence the findings on issues 2 and 3 are vitiated and are unsustainable.
In the result, this appeal is allowed in part The judgment and decree in so far as it relates to the reasons finding and conclusions over issue Nos. 2 and 4 are set aside and the proceeding remitted for a fresh consideration, by directing the commissioner to conduct a joint survey and take measurements, along with the officer of the planning section of the Forest Department, record evidence of the witnesses and pass a judgment and decree in accordance with law, in any event, within a period of six months from the date of receipt of a certified copy of the order.
Registry to forthwith transmit the records to the trial court.