Ealikutty v. State of Kerala and The Custodian of Vested Forests

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938 MFA.(FOREST) No. 172 of 2006 -----------------------AGAINST THE ORDER IN OA 2/2003 of FOREST TRIBUNAL, KOZHIKODE DATED 28-04-2006 ## APPELLANT: ------------ EALIKUTTY, W/O.ULHANNAN, AGED 61 YEARS, RESIDING AT PERIYA AMSOM DESOM, P.O.ALATTIL, MANANTHAVADY TALUK. BY ADVS.SRI.V.V.SURENDRAN SRI.A.J.RAFEEK RESPONDENTS: --------------------- 1. STATE OF KERALA, - REP. BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. ## BY SPL. GOVERNMENT PLEADER SRI.NAGARAJ NARAYANAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: cms ## **K.SURENDRA MOHAN & K.ABRAHAM MATHEW, JJ** ## **--------------------------------------** ## **M.F.A.No.172 OF 2006** **-------------------------------------Dated this the 18[th] day of October, 2016** ## **JUDGMENT** ## **K.Abraham Mathew, J** This appeal filed under Section 8A of the Kerala Private Forests(Vesting and Assignment) Act 1971 (for short the Act) is directed against the order passed by the Forest Tribunal, Kozhikode in O.A.No. 2 of 2003 filed by the appellant under Section 8 of the Act for a declaration that the property described in the schedule attached to the application is not a private forest as defined in the Act and for a direction to restore the property to her in case the court finds that the Forest Department has taken its possession. The application schedule property has an extent of 1.1294 acres. It is alleged by the appellant that in 1967 she took it on oral lease from one Vattoly Pilakeezhu Govindan Nair and she cultivated it with rubber trees, pepper vines etc. She obtained a purchase certificate from the Land Tribunal concerned for 2.25 acres. Though there is no valid notification issued under the Act and consequent vesting of the property in the government, forest officers attempted to dispossess her. The application schedule M.F.A.No.172 OF 2006 2 property is not a private forest as defined in Madras Preservation of Private Forests Act, 1949. After the enquiry, by its impugned order, the Forest Tribunal found that the appellant failed to prove that the application schedule property is not a private forest vested in the government and accordingly, the application was dismissed. 2. One of the specific allegations of the appellant is that there was no valid notification in respect of the application schedule property and there is no consequent vesting of the property in the government. The Supreme Court in **State of Kerala and another v. Popular Estates and another (2004)12 SCC 434)** has observed that the scheme of the Act is that upon the Act coming into force all private forests would vest in the State of Kerala and demarcation of the forest under Section 6 of the Act is merely a consequential act and the vesting is not postponed depending on the issuance of notification. So issuance of notification is not at all relevant. 3. In **State of Kerala v Balagopal (1986 KLT SN.Page 17)** , **State of Kerala v. Kunhiraman (1990(1) Kerala 382)** division benches of this court held that the applicant has the burden to prove that the land in question M.F.A.No.172 OF 2006 3 is not a private forest. This was affirmed by a Full Bench in **State of Kerala v. Chandralekha (1995(2) KLT 152)** . The view has been approved by the Supreme Court in **State of Kerala and another v. Popular Estates and another (2004)12 SCC 434)** . So it is for the appellant to prove that the land in dispute is not a private forest or that the private forest has not vested in the government. 4. Sri.V.V.Surendran, learned counsel for the appellant, submitted that the Act does not require the applicant to prove his title to the property and it is sufficient for him to prove that the land in dispute is not a private forest. This case of the appellant is reflected in ground (i) in the appeal memorandum. As held by this court in **Kochappan Pillai v. Chellappan (1976 KLT 1)** a provision may be negative in form but affirmative in substance. The foundation of the claimant's case is her ownership in the property involved in the dispute. The court cannot consider the case independent of her right. Her right is the most important one in the bundle of rights which forms the cause of action for filing the application. Section 2(c) of the Act defines the word owner as follows: M.F.A.No.172 OF 2006 4 **==> picture [244 x 8] intentionally omitted <==** (c) “owner”, in relation to a private forest, includes a mortgagee, lessee or other person having right to possession and enjoyment of the private forest; The claimant has to prove that her ownership and possession does not stand transferred to and vested in the government as provided in Section 3(1) of the Act. In other words, she must prove that she is the owner of the property as defined in Section 2(c) of the Act. In **K.D.Mani v. State of Kerala and another (1987 KHC 742)** a division bench of this court held: “As the appellant has no other material to prove his title to the land in dispute we hold that the appellant has failed to show that he is its owner.” Another division bench in **State of Kerala v Kunhiraman (1990(1) KLT 382)** has observed : “Ownership contemplated in the subsection is legal ownership. In other words if the person cannot trace his right to a valid title, he is disabled at the first instance itself from claiming exemption under Section 3(2) of the Vesting Act”. In an application filed under Section 8 of the Act the essential question arises for consideration is whether the applicant is the owner of the property in dispute. Unless the appellant has proved that she is the owner of the property in M.F.A.No.172 OF 2006 5 dispute as defined in Section 2(c) of the Act, she is not entitled to succeed. 5. We shall consider the facts pleaded by the appellant in her Original Application. Her allegation is that the property was not forest as defined in Madras Preservation of Private Forest Act 1949 and it is not a private forest; she took it on oral lease in 1967 with intent to cultivate it and she cultivated it with rubber, pepper etc. She further alleges that it is adjacent to her (another) property. What can be gathered from these facts is that she does not claim to have any documents of title. To put it differently, it is not her case that the said property is part of the adjacent eastern property to which she has title under Ext A11 purchase certificate issued by the Land Tribunal. 6. The appellant was not examined as a witness. Her husband was examined as PW1. His attempt was to prove that the property in dispute is part of the property covered by Ext A11 purchase certificate. He would say that the actual extent of the property covered by Ext A11 purchase certificate is 3.5 acres and by mistake it is shown as 2.25 acres in the purchase certificate. This is a new case set up in the witness box. In the absence of any pleadings to that M.F.A.No.172 OF 2006 6 effect the evidence is liable to be rejected. 7. Learned counsel for the appellant submitted that the purchase certificate is conclusive evidence of the appellant's title to the property. Reliance is placed on the decision of the division bench of this court in **Mohammed Basheer v. State of Kerala (2002(1) KLT SN Page 4)** . In **Palpatta Veeran v. State of Kerala and another (2016(3) KHC 418)** another division bench discussed the precedents on this point and took the view that the decision in **Mohammed Basheer** 's case is not good law. Thus it is now well settled that the purchase certificate issued by Land Tribunal does not affect the rights of the government. 8. The definite case of the appellant is that she took the property in dispute on oral lease in 1967. Section 74 of the Kerala Land Reforms Act declares that any lease created after 1.4.1964 is invalid. The appellant's claim that she has title to the property cannot be accepted on this ground also. 9. Though there is lack of pleadings, we shall examine whether the land in dispute is part of the property covered by Ext A11 purchase certificate. It is seen from the said document that it was on an application filed by the appellant the Land Tribunal issued her the certificate. The extent M.F.A.No.172 OF 2006 7 shown in it is 2.25 acres. But according to the appellant, the actual extent is 3.5 acres and the property in dispute, the extent of which is 1.1294 acres, is its part. She would say that the property had not been measured at any point of time before it was measured in the proceedings before the Forest Tribunal. The Land Tribunal took the view that there is a presumption of regularity of official proceedings in the absence of any evidence and the conclusion is that extent of the property had been ascertained before Ext A11 purchase certificate was issued. We fully agree with the Tribunal. 10. Except the self serving statements of PW1 in the witness box that the appellant is in possession of the property in dispute there is no evidence to support her case. 11. About one year and nine months after the filing of the Original Application a commissioner visited the property in dispute at the request of the appellant. In Ext C1 report he did not express any opinion about the age of the cultivation in the property. He just reported the claim made by the appellant and the forest officers with regard to the age of the cultivation. Later, about more than 2 ½ years after the filing of the Original Application the very same commissioner inspected the property. Exts C2 and C4 are his M.F.A.No.172 OF 2006 8 reports and Ext C3 is the plan attached to the reports. He found about 15 to 20 cashew trees, the age of which is not given in the reports. There were four 'ayani' trees and 15 jack trees, the age of which is shown as 10 to 15 years in Ext C3 report dated 20.6.2005. He has not given the age of the rubber trees and pepper vines and silver oak found in the property. But in his Ext C4 report dated 19.8.2005 it is mentioned that the age of 400 pepper vines, 150 'murukku' plants and rubber trees found in the property was between 20-30 years. The age of the two silver oak trees is shown as 15-25 years. It is not known how the commissioner who was then a young advocate could ascertain the age of the trees and pepper vines. Even if it is assumed that the age of trees and the pepper vines was 30 years, it will not help the appellant because at best they were planted in 1975. The appointed date in the Act is 10.5.1971. The cultivation now seen in the property was made about 4 years after the appointed date. So the commission reports do not help the appellant to prove her case that there was cultivation in the property on the appointed date. The appellant's only document bearing a date prior to the appointed date is Ext A1 which shows that she paid rent for 2.25 acres in May M.F.A.No.172 OF 2006 9 1970. The extent of the property shown in Ext A3 tax receipt dated 17.12.1976 is 4.50 acres, but in Ext A4 receipt dated 8.3.1978 is 4 acres. It is seen from Ext A5 tax receipt that the next year she paid tax for 4.50 acres. Two years before the filing of the Original Application in the Tribunal, she filed O.S.No.163 of 2001 in the Munsiff Court concerned in respect of the property in dispute. Ext A6 is a copy of the judgment. The extent of the total property which she claims to have obtained on lease is shown as 4 ½ acres in it. But the extent mentioned in the Original Application (after amendment) and in Ext A9 tax receipt issued nine months after the filing of the Original Application in the Forest Tribunal is 3.50 acres. There is no explanation for showing the extent of the properties differently in the above documents. The village officer had no reason to show the extent as 4 acres or 4.5 acres when the extent shown in Ext A11 purchase certificate issued to the appellant is only 2.25 acres. So it is very clear that the appellant could influence the revenue officers in obtaining the above tax receipts. There has been attempt on the part of the appellant to create false evidence in her favour. ## M.F.A.No.172 OF 2006 10 12. There is absolutely no evidence to prove that the appellant was in possession of the property in dispute on the appointed date. That apart as observed in **State of Kerala** **v. Velayudhan Sivanandan (1966 KLT 1026)** possession by itself creates no right to possess and enjoy forest land and mere possession will not make him an owner as defined in Section 2(c) of the Act. 13. The Tribunal rightly came to the conclusion that the appellant has failed to prove either title to or possession of the property. It was justified in dismissing her application. This appeal is liable to be dismissed. In the result, this appeal is dismissed. Sd/- **K.SURENDRA MOHAN, JUDGE** Sd/- **K.ABRAHAM MATHEW, JUDGE** cms