1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 77 OF 1997 1. The State of Maharashtra through the Collector, Bhandara. 2. Divisional Forest Officer, Bhandara Division, Bhandara. 3. Range Forest Officer, Pimpalgaon, Tahsil Sakoli, District Bhandara. ... ... APPELLANTS VERSUS 1. Bhaurao s/o Ramnath Parbate, aged about 45 years, 2. Kodu s/o Kawadu Thakare, Aged about 45 years, 3. Raoji s/o Sakharam Shahare, aged about 38 years, 4. Maroti s/o Jairam Rangari, Dead through his L.Rs. a. Purushottam s/o Maroti Rangari, aged about 30 years, b. Tikaram s/o Maroti Rangari, aged about 27 years, c. Narendra s/o Maroti Rangari, aged about 24 years, d. Vinayak s/o Maroti Rangari, aged about 25 years, 2 e. Fulkabai wd/o Maroti Rangari, aged about 50 years, All r/o Bolde, Tah. Sakoli, District Bhandara. f. Vandana w/o Kundlik Tirpude, aged about 21 years, r/o Mungli, Tah. Arjuni (Mor), Distt. Bhandara. 5. Laldas s/o Sakharam Shahare, aged about 30 years, 6. Rama s/o Tikawadu Shahare, aged about 35 years, 7. Puranabai wd/o Adku Thakare, aged about 40 years, 8. Vithoba s/o Shioram Shahare, aged about 40 years, All are cultivators and residents of Bolde (Salai) Tahsil Arjuni Morgaon, District Bhandara. ... ... RESPONDENTS Mr. M.P. Badar, Advocate, for the appellants. Ms. Manisha Sahare, Advocate, for respondents. CORAM : Smt. Vasanti A. Naik, J. DATED : SEPTEMBER 10, 2008 ORAL JUDGMENT 1. The appellants challenge the two concurrent judgments passed by the trial and the appellate Courts decreeing the suit of the respondents/plaintiffs and dismissing the appeal filed by the appellants against the same. 3 2. Few facts giving rise to the second appeal are stated thus- The appellants are the original defendants. A suit was filed by the plaintiffs/respondents for permanent injunction restraining the defendants from obstructing the peaceful possession of the plaintiffs over the suit property. According to the plaintiffs, the land in dispute belonged to the appellants/defendants. It was pleaded by the plaintiffs that they were cultivating the land since the year 1976- 1977 and the land was the only source of livelihood for them. The proceedings for removal of encroachment were started against them and the plaintiffs paid some fine which was imposed on them in those proceedings. The plaintiffs had filed an application for regularization of their land under the provisions of Section 51 of the Maharashtra Land Revenue Code and since the enquiry in that regard was pending, the defendants could not have started digging a drain near the land occupied by the plaintiffs. On the aforesaid pleadings, the permanent injunction was sought by the plaintiffs. 3. The defendants denied the claim of the plaintiffs and pleaded that the land in question was forest land. It was pleaded by the defendants that it was a matter of revenue record that the land was forest land and the possession of the plaintiffs could not have 4 been protected. It was also pleaded that merely because the applications filed by the plaintiffs for regularization were pending, the plaintiffs did not have any right to continue in possession of the land encroached by them. It was lastly pleaded that in view of the provisions of Section 2 of the Conservation of Forest Act, 1980, the claim of the plaintiffs could not have been granted. 4. The trial Court considered the evidence tendered by the parties on record and held that the plaintiffs had succeeded in proving that the suit land was in their possession. The trial Court held that the defendants failed to prove that the suit land was the forest land. The Court then held that the plaintiffs succeeded in proving that the defendant no.3, i.e. the Range Forest Officer obstructed the possession of the plaintiffs and, therefore, the plaintiffs were entitled to protection of their possession till the applications for regularization are decided by the State. The judgment passed by the trial Court on 24th June, 1993 was confirmed by the appellate Court by the judgment dated 30th July, 1996. The first appellate Court had held that the order of injunction was liable to be qualified with the endorsement that the said injunction would continue in force as long as the Government decides to take action for taking possession of the disputed land as 5 per the due process of law. The judgments passed by both the Courts are challenged in the instant appeal. 5. When the matter came for admission before this Court on 27/4/1998, the Court admitted the same on the following substantial question of law. (1) Whether the impugned decree can be supported under the provisions of Civil Procedure Code? 6. The import of the aforesaid substantial question of law cannot be gauged after a lapse of 10 years as it is not possible to visualize as to what was submitted before this Court when the substantial question of law was framed on 27/4/1998. 7. Shri Badar, the learned counsel for the appellants, has not pointed out any provision from the Code of Civil Procedure which would not support the decree passed by the trial and the appellate Courts and for that matter, which prohibits the passing of the decree as is passed by the first appellate Court in this case. 8. I have heard the learned counsel for the parties at length. Both the Courts have concurrently recorded a categorical finding of fact that the plaintiffs were in possession of the suit property on the date of institution of the suit and even thereafter. Both the Courts 6 have also held that the land belonged to the Government and the first appellate Court has held that the land in question is forest land. The trial Court had committed an error in granting a blanket permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiffs over the suit land. Since the plaintiffs were in possession of the property, their possession could not have been obstructed except by the due process of law. The first appellate Court, therefore, qualified the order of injunction granted by the trial Court to hold that the respondents should not disturb the peaceful possession of the plaintiffs without taking recourse to filing of civil suit or any such appropriate legal action. It is a settled position of law that even a trespasser cannot be removed from the property, except by following the due process of law. Since both the Courts have concurrently found that the plaintiffs were in possession of the suit land, the defendants could not dispossess the plaintiffs or even obstruct their possession, without taking appropriate legal action. The District Judge, Bhandara, by the judgment dated 30/7/1996, therefore, modified the decree passed by the trial Court by qualifying the order of injunction granted in favour of the plaintiffs. No fault can be found with the judgment passed by the first appellate Court. In 7 fact, there is nothing to show that the decree passed by the first appellate Court cannot be supported under the provisions of the Civil Procedure Code. The decree passed by the first appellate Court can be supported by the settled principles of law. Since the order of permanent injunction is not absolute and is qualified by the judgment passed by the first appellate Court and the appellants/ defendants would be free to take the appropriate legal action in view of the judgment passed by the first appellate Court, it cannot be said that the judgment passed by the first appellate Court suffers from any illegality whatsoever. 9. For the reasons aforesaid, the second appeal is dismissed with no order as to costs. (Smt. Vasanti A. Naik) JUDGE RMP