HIGH COURT OF CHHAmSGARH AT BILASPUR Stngie Bench: Hon'ble Shri Justice Prashant Kumar Mishra SecondApoeal No. 2S4 of 2007 Bund Kunvar Versiis Pati Ram Patel and ottiers QSJDSJB, Postfor 10-08-2010. Sd/- Prashant Kumar Mishra Judge "^ff 3-. R. »&5EB' HK3H COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra APPELLANT RESPONDENTS Second Aopeal No. 254 / 2007 Bund Kunvar Versus Pati Ram Patel and <rthers. Shri S. N. Nande, counset forthe appetlant. Shri Ajay Dwivedi, Deputy Govt. Advocate for the State/respondent No.6. SECOND APPEKL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEEHJRE ORDER 10 .08.2010) Heard. (2) The instant second appeal has been preferred by the ptaintiff whose suit for declaration of title and permanent injunction has been dismi^ed by the Courts betow. (3) The piaintiff ctaimed title on lands bearing Khasra No. 145/1 area 1.80 acre on the pteading that her brother Munudas was in possession since 1974 and after his death in ^)02 she is continuing in peaceful possession of the tand. Munudas was not granted a lease in 19% however his subs^uent applicgtion was allowed on 07-05-2001 and a lease was issued in his favour. The TahsiMar instituted an enquiry and recorded a finding vide his order dated 21-03-2004 thahtlw lease is forged and tie recommended cancellation ofthe tease. (4) The defendants contested the suit by submitting that the plaintiff has no tttle on the tand and that the lease was a forged document. The tnai Court victe its judgment and decree dated 29-08-^X)5 recorded a finding that the suit tand is a tank and that in the revenue record Khasra Ifc" lij'i- /^by -A No. 145/1 has been recorded as 'chhotejhad kajangal' which means forest land. The triat Court aiso appreciated the evklence of the plainKff as against evidence of the defendants wftnesses and has concliKled that the evidence of the defendants to the effect that the subject land is used by the villagers as their nistari land, appears to be more probable and convincing. The trial Court also considered the report of the AAlitional Tahsildar dated 31-03-2004 (Ex.P/3) to hotd that the tease issued in favour ot Munudas appears to be prima facie forged. The ^aintifFs assertion that her brother Munudas was in possesston for 35 years was ateo found to be not proved. It was also found that the plalntiff has faited to prove that the she is real sister of MuntKtes. (5) The appetlate Court has confirmed the findings recorded by the trial Court and has affirmed the judgmwit and decree. (6) Counsel for the a^ellant has argued that the !ease issued in favour of Munudas has not been cancetted. The order of Tahsildar is only a recommendation, therefore, as tong as the (ease has not been cancelled the plaintiff would be entitted to a decree. (7) On perusal of the record it would a^ssir that in Ex.P/1 it is mentioned that Munudas S/o Dhatir^a was an encroacher on 1.80 acre of tand from Khasra No. 145/1 from ^-02-1974. Ex. P/2 is ateo a document regarding encroachment. Ex. P/3 is a report made by the Additional Tahslldar, Sarangarh in wtiich it is mentioned that since it is a forest land the provision of Forest ConservatiOTi Act, )96Q woutel be appiicabie and no lease can be granted without prior sanction/permissfon W the Centrat Govemment. It is also mentioned therein that the revenue .,<^'^w%^^ -^'*; s ^ y s ••^^-^/ 'u^s^ff'' 5- case mentioned in the Patta purportedly issued by the Court of TahsiMar, Sarangarh in favour of Munudas, is not available in the offtee of Nayab Tahsstdar, Sarangarh. It is thus recorded by the Additional Tahsiktar in Ex. P/3 that the fease/Patta in favour of Munudas appears to be forged. (8) The Forest (Conservation) Act, 1980 has been enacted to provide for the conservation of forest and for matters connected there with. Section 2 ofthe Act, 1980 reacte as under- "2. Restriction on the dereservation of forests or use of forest land for non-forest purpose - Notwithstanding anything contained in any other taw for the time besng in force in a State, no State Govemment or other authority shall make, except with ttie prior approval of the Central Govemment, any order CSirecting - (i) that any reserved forest (within the meaning of the expression "reserved foresf in any (sfw for the time being in force in that State) or any portion thereof, shal! cease to be reserved; (ii) that any forest tand or any portion thereof may be used for any non-forest purpose; ?ns. by Act 69 of 1988, sec. 2 {w.e.f. 15-3-1989) [(v^ that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, s©encyor any other organisation not ctomed, managed or controlled byGovemment; "\ (iv) that any forest land or any portion thereof may be cteared of tress whteh ha^e grown naturally in that land or portion, Tor the purpose of using it for reafforestation.] Subs. by Act 69 of 1988, sec. 2 {w.e.f. 15-3-1989) {Explanation- For the purposes of this section "non-forest .t^^' ""ssagK ~A -^- purpose" means the breaking up or clearing of any for^t tand or portion thereof for- (a) the cultivatton of tea, coffee, spices, rubber, palms, oii-bearing ptants, hortculture crops or medteinal plants; (b) any purpose other than reafforestation, but does not inctude any work relating or ancillary to conservation, devetopment and management or forests and wild-tife, namely, the estabtishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marte, boundary marks, pipelines or other tike purp(»es.] (9) AdmitSedty the subject land is recorded as 'chhotejhad kajangal' and is a Torest land. It is ateo admitted by the ptaintiff hereelf that the iease in favour of Munudas was granted on 07-05-2001, the lease has not been exhibited in course of trial, however a copy of the tease is avajiabie in the record. The lease appeare to have been granted conferring Bhoomiswami rights under the provisions of Chhattisgarh Land Revenue Code, 1959, however in view ofthe ter created under Section 2 of the Forest Conservation Act, 19M) the lease itself is ill^al and without jurisdiction because the ptaintiff has not stated anywhere that before granting iease the prior approval of the Gentral Govemment was obtained. ^ (I O) in view of the above, this Court finds that the iearned Courts telow have not committed any itl^ality nor have recorded any perverse finding whiie dtemissing the plaintiTTs suit. No substantial question of law arises for cietermination in this appeal which faits and is hereby dismissed at the admsssion stage. T~. Prashant Kumar Mishra ' Judge h