Arumughan Pillai and others v. State of Kerala and Custodian of Vested Forests

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944** **MFA (FOREST) NO. 21 OF 2008** **AGAINST THE ORDER IN OA 1/2004 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/APPLICANTS:** - 1 ARUMUGHAN PILLAI, AGED 68 YEARS S/O.SUNDARAN PILLAI, VADHYAR CHALLA,, PUDUSSERY AMSOM DESOM, PALAKKAD. - 2 DHANALAKSHMY W/O.KRISHNA SWAMY PILLAI AGED 51 YEARS, VADHYAR CHALLA,, PUDUSSERY AMSOM DESOM, PALAKKAD. - 3 SUNDARI D/O.LATE KRISHNA SWAMY PILLAI, AGED 31 YEARS, VADHYAR CHALLA, PUDUSSERY, AMSOM DESOM, PALAKKAD. - 4 GURUVAYOORAPPAN, S/O.LATE KRISHNA SWAMY PILLAI, AGED 28, YEARS, VADHYAR CHALLA, PUDUSSERY,, AMSOM DESOM, PALAKKAD. - 5 MURUKESAN S/O.LATE KRISHNA SWAMY PILLAI AGED 26 YEARS, VADHYAR CHALLA, PUDUSSERY, AMSOM DESOM, PALAKKAD. - 6 VELUMANI S/O.LATE KRISHNA SWAMY PILLAI AGED 29 YEARS, VADHYAR CHALLA, PUDUSSERY, AMSOM DESOM, PALAKKAD. - 7 MAHESWARI S/O.LATE KRISHNA SWAMY PILLAI AGED 24 YEARS, VADHYAR CHALLA, PUDUSSERY, AMSOM DESOM, PALAKKAD. - 8 RAMAKRISHNAN S/O.LATE VELAYUDHANPILLAI AGED 49 YEARS, VADHYAR CHALLA, PUDUSSERY, AMSOM DESOM, PALAKKAD. - 9 KAMALAM @ KOMALAM, D/O.LATE VELAYUDHAN PILLAI, AGED 44 YEARS,, VADHYAR CHALLA, PUDUSSERY AMSOM DESOM,, PALAKKAD. - 10 DHANALAKSHMY @ DHANABHAGYAM D/O.LATE VELAYUDHAN PILLAI, AGED 41 YEARS,, VADHYAR CHALLA, PUDUSSERY AMSOM DESOM,, PALAKKAD. - 11 PAPATHY D/O.LATE VELAYUDHAN PILLAI, AGED 35 YEARS, VADHYAR CHALLA, PUDUSSERY, AMSOM DESOM, PALAKKAD. - 12 JANAKI D/O.LATE VELAYUDHAN PILLAI, AGED 30 YEARS, VADHYAR CHALLA,, PUDUSSERY AMSOM DESOM, PALAKKAD. M.F.A.(FOREST) 21/2008 2 - 13 GURUVAYOORAPPAN, S/O.LATE VELAYUDHAN PILLAI, AGED 28 YEARS, VADHYAR CHALLA, PUDUSSERY AMSOM DESOM, PALAKKAD. BY ADV K.P.BALAGOPAL ## **RESPONDENTS/RESPONDENTS:** - 1 STATE OF KERALA & ANOTHER, CHIEF SECRETARY, GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 11.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(FOREST) 21/2008 3 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A.[FOREST] No.21 of 2008 -------------------------------------Dated this the 11[th] day of November, 2022 J U D G M E N T** ## Jayachandran, J. **1.** We see in this appeal a half-hearted attempt to prosecute a cause under Section 8 of the Kerala Private Forest Vesting and Assignment Act [Vesting Act, for short] in seeking a declaration that the petition schedule property is a private forest; and alternatively, for exemption under Sections 3(2) or 3(3) of the Act. O.A.No.1 of 2004 was dismissed by the Forest Tribunal, Kozhikode as per order dated 27.05.2006, which was an adjudication on merits, despite non-prosecution, a permissible course under the Explanation to Order XVII Rule 2 C.P.C., since the non prosecution was after adducing prosecution evidence, though without examining RW1, the forest official, in cross. The Tribunal found, for various M.F.A.(FOREST) 21/2008 4 reasons, that the appellants failed to establish that the scheduled property is not a private forest; or their entitlement for exemption under Section 3(2) or 3(3)of the Act. **2.** Heard Sri.K.P.Balagopal, learned counsel for the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader [Forests] for the respondents. Perused the records. **3.** Learned counsel for the appellants/applicants pointed out that the applicants' counsel submitted no instructions before the Tribunal, which in fact led to the dismissal of the O.A. The applicants specifically claimed title under and by virtue of a purchase certificate issued under the Kerala Land Reforms Act, but did not get ample opportunity to produce and prove the same before the Tribunal. Learned counsel contended that, cultivation was noticed by the Commissioner in Ext.C1 report, which, however, was not taken stock of by the Tribunal. In M.F.A.(FOREST) 21/2008 5 short, the appellants seek a remand, so as to enable them to produce the purchase certificate, as also, to adduce further evidence in support of their claim. **4.** Opposing the above submission, learned Special Government Pleader pointed out that the purchase certificate, if any, in favour of the appellants was not even produced in this appeal, which shows utter lack of bonafides and diligence on the part of the appellants. Remanding an original application of the year 2004 in 2022 is certainly not in the fitness of things is the final submission of the Special Government Pleader. **5.** Having heard the learned counsel appearing on both sides, we fully endorse the submissions made by the Special Government Pleader, in so far as the prayer for remand is concerned. The request is rejected for three reasons. Firstly, a remand cannot be allowed for the purpose of filling up the M.F.A.(FOREST) 21/2008 6 lacuna in the evidence. Secondly, a party to a _lis_ , who had abundant opportunity to adduce necessary evidence, but who did not chose to avail the opportunity consciously, cannot subsequently complain of want of opportunity. Thirdly, we notice that the order under appeal is not one which was disposed of on a preliminary point as envisaged under Order XLI Rule 23, but was one adjudicated on merits. Such adjudication is permissible in terms of the Explanation to Order XVII(2) C.P.C, in as much as, the applicants withdrew from prosecution after adducing evidence or atleast substantial portion thereof. Here, as we noticed earlier, PW1 and PW2 were examined on the part of the applicants and petitioners' evidence was closed. RW1, the forest official was examined, but was not subjected to any cross examination by the applicants' counsel, for want of instructions. We are not of the opinion that, for a proper and effective adjudication of the case, there was any dearth of evidence, warranting a remand. As pointed out by the Special Government M.F.A.(FOREST) 21/2008 7 Pleader, the purchase certificate sought to be relied upon is not even produced at the appellate stage. In the above referred circumstances, we are disinclined to entertain a claim for remand of an O.A. of the year 2004 at this distance of time. Point concluded accordingly. **6.** Coming to merits, we notice that the order impugned dismissing the O.A. is supported by reasons aplenty. The applicants set up a claim of oral lease of the year 1940 from Vadassery Tharavad. But no evidence was adduced in this regard. True, PW1 and PW2 spoke about the oral lease. But, as rightly, found by the Tribunal, they were not competent to speak of such fact, having regard to their age and also for want of direct knowledge. The Tribunal also found that the first applicant, who was aged 80 years having direct knowledge to speak about the oral lease, if any, was not examined. There is no pleading, much less any proof, of the rent stipulated for the lease and about its payment. No M.F.A.(FOREST) 21/2008 8 evidence is forthcoming as regards cultivation, if any, in the scheduled property. Moreover, PW1 would admit the existence of trees of forest species in the disputed property. The Tribunal relied upon the Commissioner's report to find that trees like vaka, pullamaruthu, aval, ponkini etc, are standing in the scheduled property, which rules out the possibility of any cultivation. **7.** It is true that the Commissioner found indications of cultivation in the scheduled property. However, the Commissioner simultaneously found that there was nothing to demarcate the scheduled property from other properties. This observation of the Commissioner has to be understood in the light of the respondents' objection in the counter affidavit that the applicants have filed original applications earlier in respect of properties in the same survey number and that, they have no property left in the same survey number, other than those involved in the earlier O.As. We M.F.A.(FOREST) 21/2008 9 are therefore of the opinion that a stray finding regarding indication of cultivation in the scheduled property would not answer the requirements of an exclusion under sub clauses (A) to (D) to Section 2(f)(1)(i), or an exemption under Section 3(2) or 3(3) of the Act. As held by a Full Bench of this Court in **State of Kerala v. Chandralekha** [1995(2) KLT 152(F.B.), the burden is squarely upon the applicants to establish that the scheduled property would not have been governed by the provisions of the Madras Preservation of Private Forest Act immediately preceding the appointed date and therefore, not a private forest; or atleast to establish the exclusion or exemptions referred above, which they have miserably failed. The cultivation, to be established is also as on the appointed day and not as on the date of inspection of the Commissioner. **8.** We find no reason to interfere with the reasoned judgment of the Tribunal, with the result, this M.F.A.(FOREST) 21/2008 10 appeal fails and the same is dismissed, relegating the parties to bear their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN JUDGE** Sbna/