# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN**
**FRIDAY, THE 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 MFA (FOREST) NO. 230 OF 2009**
**AGAINST THE ORDER IN OA 13/2006 DATED 13.1.2009 OF FOREST TRIBUNAL, KOZHIKODE**
## **NAME OR NAMES (WITH FULL ADDRESS/ADDRESSES) OF THE APPELLANT/APPELLANTS:**
AJITH PARTHAN, S/O PARTHAN, GOPALA MANDIRAM, MOZHIKUNNAM, MUNDUR,PALAKKAD. BY ADVS. SRI.D.KRISHNA PRASAD SARATH M S M S B.PREMNATH (E)(K/1350/1995) P.SREENATH SANKAR(K/729/2008) O.K.SANTHA MARY TREASA P.L.
## **NAME OR NAMES (WITH FULL ADDRESS/ADDRESSES OF THE**
## **PERSON/PERSONS WHO SHALL BE IMPLEADED OR BROUGHT ON RECORD AS RESPONDENT/RESPONDENTS:**
1 STATE OF KERALA SECRETARY, FOREST AND WILD LIFE DEPARTMENT, THIRUVANANTHAPURAM.
2 CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE,, PALAKKAD.
## **M.F.A (Forest) No.230 of 2009 2**
3 PARTHAN, S/O. GOPALAN GOPALAMANDIRAM, MOZHIKUNNUM, MUNDUR, PALAKKAD. (DIED) 4 ADDL R4 BABY PREMILA PARTHAN, AGED 75 YEARS, W/O.PARTHAN, GOPALA MANDIRAM, MOZHIKUNNAM, MUNDUR, PALAKKAD- 678 592 5 ADDL R5 ANJU PARTHAN AGED 45 YEARS, D/O.PARTHAN, 8 LEDGE WOOD DR, BED FORD, MASSACHUSETTS 01730, U.S.A. **RESPONDENTS 3 AND 4 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 AND 5 AS PER ORDER DATED 4/2/2022 VIDE IA NO.1/22 BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST
THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
**M.F.A (Forest) No.230 of 2009 3**
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------------M.F.A (Forest) No.230/2009 ----------------------------------------Dated this the 23[rd] December, 2022
## JUDGMENT
## K.Vinod Chandran, J.
The appellant was the applicant before the Forest Tribunal under S.8 of the Private Forest (Vesting and Assignment) Act, 1974 (for brevity, the Vesting Act). The appellant was concerned with 4 acres 4 cents of land in Sy.No.54 of Mundoor-I Village, Palakkad Taluk and District. It was claimed that the appellant’s grandfather obtained the land on lease from the original _jenmy_ , one Chelakkode Kalyani Amma, which was treated as a joint family property. The grandfather of the applicant effected partition and the father of the applicant obtained the said land, which is scheduled as item No.6 in B schedule to Ext.A1 partition deed, which was executed jointly by the applicant’s grandfather, father and father’s brother. It was alleged that the forest authorities attempted to interfere with the
## **M.F.A (Forest) No.230 of 2009 4**
possession and enjoyment of the property and also planted forest species trees in the property. A suit was filed before the Munsiff’s Court, Palakkad, which was later realized to be not maintainable, and hence the application before the Tribunal. It was averred that there was no notification of the specific property and that the land is devoid of any tree growth and the applicant was raising fugitive crops in the property; the remnants of which are still seen in the property. It was also asserted that the family of the applicant did not have properties above the ceiling limit under the Kerala Land Reforms Act.
2. The respondent denied the possession, cultivation and the title claimed by the applicants. It was asserted that the property was governed by the erstwhile Madras Preservation of Private Forest Act, 1949 (for brevity, the MPPF Act), and the disputed land falls under Sy.No.54 of Mundoor-I Village, notified as vested forest in the year 1976 as V.F.C item No.29, after proper survey and demarcation. The property lies within a total extent of 108.85 hectares contiguous to other vested forest, which together is called the _Oduvangad Malavaram_ (slope of a hill). It was also contended that there was a
## **M.F.A (Forest) No.230 of 2009 5**
proper notification, and that earlier with respect to the very same property, the father of the applicant had filed an application under S.8 of the Vesting Act, which was dismissed. It was pointed out that earlier the survey number was shown as Sy.No.55 of Mundoor-I Village, which was altered as Sy.No.54 in the present application.
3. The Tribunal raised three issues, of limitation, the status and nature of the property and the exemption claimed under S.3(2) of the Vesting Act. Since there was no clarity with respect to the date of notification, the Tribunal found the ground of limitation in favor of the applicant and against the department; rightly so. However the evidence led through PWs 1 to 3 was disbelieved. The identity of the property was also found to be specious. There was some discrepancy in the notification produced, but the Tribunal found that vesting does not depend upon the notification and there is no proof offered by the applicant to establish that the property is not a private forest. The Tribunal also examined the order in the earlier O.A., filed by the father of the applicant and found the property to be identical to that scheduled in the present O.A.; but for the difference in survey
## **M.F.A (Forest) No.230 of 2009 6**
number. The Tribunal on the above reasoning and also finding _resjudicata_ with respect to the property scheduled, rejected the application, against which the present appeal is filed.
4. PW1 testified that he was a person having property in the neighborhood and claimed acquaintance with the father of the applicant and the scheduled land, which was cultivated with fugitive crops. PW2, likewise, claimed acquaintance with the property for about 30 years, during which time, he had also been a permanent labourer of the father of the applicant. The testimony of these witnesses, according to the Tribunal, did not speak of the exact right of the applicant’s father in the property nor did they trace the title to the _jenmy_ as claimed in the application. Both these witnesses, also did not specifically identify the property with reference to the boundaries or the survey number. PW3, the brother of the applicant, who was a party to Ext.A1 partition deed, also did not speak of how his father obtained the land from the _jenmy_ . Exts.A2 and A3 are the purchase certificate and the proceedings of the Land Tribunal. allegedly, in respect of the scheduled property, in which Sy.No.54 &
## **M.F.A (Forest) No.230 of 2009 7**
55 were shown respectively, which is shown in Ext.A1 document as Sy.No.55. PW 3, who was one of the parties in Ext.A1 partition deed, specifically spoke of the scheduled property having been included as item No.6 of the B schedule in Ext.A1 partition deed, which was set apart for the share of his brother, the applicant’s father. Even PW3 did not speak of the boundaries of the property which was very crucial in so far as the difference in survey number as seen from the various documents produced. We concur with the findings of the Tribunal that the testimony of the witnesses were shaky and do not establish the identity or the right to possess the property.
5. In Ext.A1 document, the property is shown as situated in Re.Sy.No.55 of Mundoor-I Village and having an extent of 10 acres 7 cents. However, the schedule to the present application showed an extent of 4.04 acres of land in Sy.No.54. According to the applicant, the survey number in Ext.A1 is wrong, but however there was no correction deed executed. It is also pertinent that there was no commission taken out to verify the survey number or identify the property with reference to the boundaries stated in Ext.A1. The
## **M.F.A (Forest) No.230 of 2009 8**
Tribunal also looked into the specific boundaries shown in the schedule and that revealed from the schedule to Ext.A1 and found it to be not tallying. The 3[rd] respondent was the father of the applicant who had not participated in the proceedings.
6. Even if the mistake in survey number is accepted, going by Ext.A2 purchase certificate issued by the Land Tribunal-I, Palakkad, the very same property was the one which was the subject matter of O.A.No. 596/76, an order rejecting the application under S.8 of the Vesting Act by the Forest Tribunal, Palakkad, dated 24.10.1979, filed by the applicants father, the 3[rd] respondent herein; produced as Ext.B2 by the respondent Forest Department. It has also to be mentioned here that Ext.A2 purchase certificate clearly reveals a correction in so far as the survey number shown therein as 55, having been scored off and the number 54 interpolated. The said correction as seen from the documents itself is made as per order in an interlocutory application, which order is not produced; but seen authenticated in the purchsee certificate itself. The order in the _suo motu_ proceedings under the Land Reforms Act produced as Ext.A3 however shows the survey
## **M.F.A (Forest) No.230 of 2009 9**
number of the property for which purchase certificate is directed to be issued as Sy.No 55. The identity of the property with reference to the survey number and the boundaries in Ext. A1 and that shown in Ext. A2, purchase certificate had to be established by the applicant. _Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]_ held so:
“ _30. We thus confirm the decision of the High Court and dismiss the appeal with costs. We hope that this judgment will act as an eye-opener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands sought to be claimed, while entertaining applications under Section 8 of the Act.”_
## _[underlining by us for emphasis]_
7. We fully agree with the Tribunal that the applicant has failed to establish the title to the property scheduled, the identity of the property on which exemption is claimed under S.3(2 ) of the Vesting Act and that the very same property was the subject matter of an earlier O.A under S.8 filed by the applicants father, the 3[rd] respondent herein; which makes the present application barred, on the principle of _resjudicata_ . The 3[rd] respondent who was the applicant earlier,
## **M.F.A (Forest) No.230 of 2009 10**
remained silent in the present proceedings. There is a clear attempt to abuse the process of law.
We reject the appeal with costs of the respondents.
Sd/-
K.VINOD CHANDRAN, JUDGE
Sd/-
C.JAYACHANDRAN, JUDGE
**uu**
