Kallumpurath K.P. Muhammed v. State of Kerala and Custodian of Vested Forest

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944 MFA (FOREST) NO. 176 OF 2007** ## **AGAINST THE ORDER IN OA 12/2006 OF FOREST TRIBUNAL, KOZHIKODE APPELLANT/APPLICANT:** KALLUMPURATH K.P.MUHAMMED, S/O.ABDUL RAHMAN, FAMENA MANZIL, UNNIKULAM P.O, PERINGALAM VAYAL, POONOOR, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.A.SUDHI VASUDEVAN (SR.) SRI.JOSE JONES JOSEPH ## **RESPONDENT/S:** 1 STATE OF KERALA SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD. ## **OTHER PRESENT:** NAGARAJ NARAYANAN- SPL.G.P THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A(Forest)176/2007 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A.[Forest] No.176 of 2007 -------------------------------------Dated this the 17[th] day of November, 2022** ## **J U D G M E N T** ## **Jayachandran, J.** **1.** This appeal stems from the order of the Forest Tribunal, Kozhikode dated 30.04.2007 in O.A.12/2006, as per which, the appellant's claim that the petition schedule property is not a private forest liable to be vested in Government under the Kerala Private Forests (Vesting and Assignment) Act, 1971 [for short, the Vesting Act'] was repelled. The aggrieved applicant before the Tribunal is the appellant herein. ## **2. Facts in brief** : The petition schedule property is having an extent of 6 acres of unsurveyed land in Koorachundu Village, which the petitioner got title under and by virtue of 5 registered jenmom assignment deeds M.F.A(Forest)176/2007 3 of the year 2004, marked as Exts.A1 to A5. The property was brought under plantation with coconut, cashew, fruit bearing trees, lemon grass, ginger and other seasonal crops long before the Vesting Act came into force. The same was never a forest or a private forest and no tree of a forest specie exists in the disputed property. Out of the 6 acres of land, 3 acres were cultivated with lemon grass and remaining with other plantations referred above, both effected long before the appointed day, ie., 10.05.1971. The predecessors were holding the property under valid registered documents of title. The Madras Preservation of Private Forests Act, 1949 [for short, 'the M.P.P.F. Act'] did not apply to the scheduled property immediately prior to the appointed day under the Vesting Act. Even if the Vesting Act applies to the scheduled property, the same is liable to be excluded under Section 2(f)(1) (i)(B) and (C) of the Act on account of the specified category of cultivation being conducted in the land. The petitioner's family consists of 5 members and they have no land in excess of the M.F.A(Forest)176/2007 4 ceiling limit prescribed under the Vesting Act. On such premise, appellant/applicant sought for a declaration that the scheduled property is not a private forest. **3.** The Divisional Forest Officer filed counter affidavit contending _interalia_ that the scheduled property is a vested forest, as included in V.F.C item no.52, bit no.50 of Kakkayam Section in Peruvannamuzhi range, notified as per notification No.D-5272/77 dated 8-7-77, 7-12-78, 16-5-79, 2111-79, 14-12-79, 4-3-80, 29-3-80 and 16-11-81 respectively, as also, by a erratum notification no.B6-13762/93 dated 24.01.2001. The applicant had encroached into the vested forest. The genuineness and validity of the title deeds are disputed. In the _jenmom_ assignment deeds, the property is shown as unsurveyed land, whereas, the disputed property is comprised in survey no.867 of Kanthalad Village. Similarly, the boundaries shown in the title deeds and that of the scheduled property does not tally. Again, the survey number shown in the assignment M.F.A(Forest)176/2007 5 deeds are different from the one entered into in the basic tax receipts. The scheduled property was governed by the erstwhile M.P.P.F Act since it was lying contiguous to a forest land having an extend of more than 100 acres. As on the appointed day, there was no cultivation in the disputed property and no document is produced by the petitioner/applicant to substantiate his claim of cultivation. After encroaching into the property recently, the applicant planted few cashew, coconut trees and medicinal plants. Based on the above contentions, the respondents sought for dismissal of the OA. **4.** On an analysis of the facts, evidence and probabilities of the case, the Tribunal found as follows: a). The applicant failed to establish that the M.P.P.F Act would not have applied to the scheduled property immediately prior to the appointed date. b). The cultivation specified in clause (B) of Section 2(f)(1)(i) was not proved; and that M.F.A(Forest)176/2007 6 cultivation of coconut would not answer the requirement of 'fruit bearing trees' as employed in clause (C) of Section 2(f)(1)(i). c). The applicant has no knowledge regarding the state of affairs of the scheduled property as on the appointed day, since he came into possession only in the year 2004. d). The property was not properly identified with respect to the title deeds produced; and e). A subsequent assignee has no locus to claim exemption under Section 3(2) or (3) of the Vesting Act as held in **Koya** v. **State of Kerala.** [1987(1) KLT 830]. **5.** Heard Sri.Sudhi Vasudevan, learned Senior Counsel for the appellant and Sri.Nagaraj Narayanan, learned Special Government Pleader [Forests] for the respondents. Perused the records. **6.** In this appeal, the appellant filed I.A.No.3 of 2022 producing certain additional documents under Order XLI, Rule 27 of the C.P.C., which includes a M.F.A(Forest)176/2007 7 certified extract of the Town Survey Field Register and also the certified copies of certain documents. Today, another application was filed under I.A. No.4 of 2022, wherein, a reply issued by the Special Tahsildar (L.R), Kozhikode is also sought to be produced as an additional document. We will deal with the said applications simultaneous with considering the merits of the matter. **7.** Learned Senior Counsel for the appellant submitted that Ext.A25 settlement register, which was produced and marked before the Tribunal, was not considered. Ext.A25 settlement register would establish that the subject property was cultivated with tapioca as on 1964. Secondly, Senior Counsel contended that the findings of the Tribunal that the title deeds produced would only vouch for an extent of 1 acre of land, as against 6 acres scheduled in the O.A, and that the identity of the scheduled property is not established are wholly untenable. Learned Senior Counsel specifically invited our attention to Ext.A15, the certified M.F.A(Forest)176/2007 8 copy of a document of the year 1965, which contains two schedules, the first one pertaining to an extent of 5 acres and second, 1 acre, thus constituting title for the entire 6 acres. Learned Sr. Counsel further argued that the boundaries of the scheduled property, when juxtaposed with the boundaries shown in Ext.A15, would establish the identity of the property, beyond doubt. Another argument advanced is that, the recitals contained in page no.2 of Ext.A15 specifically refers to the right of the assignee to possess the property, as also, to cultivate. The rights transferred under that document is ' _kuzhikkanam'_ rights, which also implies cultivation according to the learned Senior Counsel. The commissioner's report would show that the disputed property and the remaining property of the petitioner is lying contiguous, within the common boundaries protected by barbed wire fencing. The finding of the Tribunal that coconut is not a fruit bearing tree for the purpose of Section 2(f) (1)(C) of the Act is completely misconceived. Finally, learned counsel pointed out that, going by M.F.A(Forest)176/2007 9 a Bench decision of this Court in **Parameswara Sastrigal K.S.** v **. State of Kerala** [2008(2) KHC 434], an assignee is entitled to the protection under Section 3(2) or (3) of the Vesting Act. In short, learned counsel would pray for allowing the O.A, or atleast to remand the case to the Tribunal to adduce additional evidence, which are now produced in the appeal, especially the Field Register, which would complement and corroborate the cultivation referred to in Ext.A25 settlement register. **8.** Per contra, these allegations were refuted by the learned Special Government Pleader. It was pointed out that the applicant, who came into possession of the scheduled property only in the year 2004, had no direct knowledge regarding the state of affairs of the scheduled property as on the appointed date and that, he had not examined anyone having such direct knowledge. There is no specific pleading in the O.A as regards any exemption under Section 3(2) or (3) of the Vesting M.F.A(Forest)176/2007 10 Act. As regards cultivation, if any, carried on by the predecessors of the applicant as on the appointed date, no credible evidence is forthcoming. The commission was taken out only in the year 2006 and therefore, the findings in Ext.C1 report would not vouch the status of the scheduled property as on the appointed date, _dehors_ and independent of the fact that the cultivation, as also, the age of the trees referred to therein does not inure to the benefit of the appellant/applicant. As rightly found by the Tribunal that, out of the 25 documents produced by the appellant/applicant, the only document which is liable to be reckoned is Ext.A15, since the same was executed before the appointed date. However, the recitals in that document would not _ipso facto_ prove that the disputed property was cultivated with a particular specie as specified in clauses (B) or (C) of Section 2(f)(1)(i) of the Vesting Act. Although, the finding as regards the assignee's locus is concluded by the judgment in **Parameswara Sastrigal** supra, the situation will not M.F.A(Forest)176/2007 11 improve, unless satisfactory evidence regarding the cultivation claimed is forthcoming. According to the learned Special Government Pleader, the appeal is only to be dismissed. **9.** Having heard learned counsel appearing on both sides, the first point to be addressed is whether the scheduled property is a private forest or not. Concomitantly, the question as to whether the M.P.P.F. Act, 1949 would have applied to the scheduled property immediately before the appointed day is also to be answered. By virtue of a series of decisions starting from (i) **State of Kerala** v. **Balagopal** [1986 KLT SN Page 17] (ii) **State of Kerala** v **. Kunhiraman** [1990(1) KLT 382] (iii) **State of Kerala** v **. Chandralekha** [1995 (2) KLT 152 (FB).] and (iv) **State of Kerala** v. **Popular Estates** [2004(12) SCC 434], it is trite that the burden of proof to establish that the disputed land is not a private forest is squarely upon the applicant/appellant. It is undisputed that the scheduled property forms part of the erstwhile M.F.A(Forest)176/2007 12 Malabar district. The notifications as per which the scheduled property has been notified as vested forest are specifically averred in the counter affidavit and Ext.B1 notification is produced as well, which indicates that the scheduled property is part of a vast extent of 157 acres of land. As against the evidence adduced by the respondent/department, albeit the burden of proof being on the applicant, no evidence worth the name was adduced by the applicant to show that the disputed property is not a private forest, or for that matter, the M.P.P.F. Act would not have applied to the same immediately prior to the appointed day. We do not find any infirmity, whatsoever, with the finding of the Tribunal that the scheduled property is a private forest. **10.** Having found so, the next question to be addressed is whether the scheduled properties are entitled to any of the exclusions in clauses (B) or (C) to Section 2(f)(1)(i) of the Vesting Act. In so far as the claim under clause (B) is concerned, the M.F.A(Forest)176/2007 13 applicant/appellant has no claim of any cultivation of the species specifically referred to in clause (B). Instead, the specific cultivation claimed is with respect to coconut, cashew, fruit bearing trees, lemon grass, ginger and other seasonal crops, which narration can only fall under Clause (C) to Section 2(f)(1)(i) of the Vesting Act, the cultivation of cashew and other fruit bearing trees being recognized under that cause only. We propose to deal with coconut separately. **11.** In so far as the claim of cultivation of cashew, we find that no evidence is forthcoming, except the interested testimony of PW1, the applicant. We fully endorse the finding of the Tribunal that the applicant has no direct knowledge and therefore, was not competent to speak of the state of affairs prevailing as on the appointed day, he having obtained title to the scheduled property only in the year 2004. None of his predecessors were examined. Therefore, the applicant's claim regarding cultivation of cashew M.F.A(Forest)176/2007 14 as on the appointed day is only to be eschewed. We perused the commissioner's reports, Exts.C1 and C2. Ext.C1 specifically speaks of the existence of coconut and arecanut trees and other medicinal plants, without there being any reference to cultivation of cashew in the scheduled property. Ext.C2 only produces the sketch of the scheduled property, indicating the boundaries and nature of the property. We, therefore, find that, there exists no evidence in proof of the claim of cultivation of cashew. **12.** The position remains the same in respect of other species of cultivation claimed in the O.A., since the evidence forthcoming in respect of the same is also grossly insufficient, as indicated above in the case of cashew. The remaining question is with respect to the specific contention of the learned Senior Counsel for the appellant that coconut tree is liable to be recognized as a 'fruit bearing tree' enabling an exclusion under Clause (C). The Tribunal found that, cultivation of M.F.A(Forest)176/2007 15 coconut will not enable an exclusion under Clause (C), supplemented by a reason that the applicant/appellant has no claim under Clause (A) on the premise that the scheduled property is a garden land, as defined under the Kerala Land Reforms Act, **1960** . The contention of the learned Senior Counsel is specifically in the teeth of a five Judges Bench decision of this Court in **State of Kerala** v. **Moosa Haji** [1984 KLT 494 (FB)]. Although the question which arose for consideration in **Moosa Haji** supra was concerning the exclusion claimed under Clause (C) to Section 2(f)(1)(i) when the lands were principally cultivated with teak before the appointed date, paragraph nos. 15 , 16 and 18 of the judgment throw adequate light on the question whether cultivation of coconut would qualify for exclusion under Clause (C). Paragraph nos.15, 16 and 18 are extracted here below: “15. The first exemption recognized in the definition clause is “lands which are gardens and nilams”. Garden lands include lands used principally for growing coconut and arecanut trees. Both these trees have M.F.A(Forest)176/2007 16 fruits, nuts or seeds; and if the intention of the legislature in (C) was to exclude every type of tree with a fruit, nut or seed, their specific enumeration in (A) was unnecessary; the expression “other fruit-bearing tree” in (C) would have been sufficient. So also, the rubber tree in (B) has a fruit or seed; and for the same reason, a separate enumeration of that tree would also have been unnecessary. Obviously, therefore, “other fruit-bearing trees” in (C) could not be understood in a very wide sense so as to take in every tree which has a nut or seed which may botanically or technically be called a 'fruit'. 16. Again, when we turn to the Explanation to S.3(2) of the Vesting Act, what is seen is that “trees of any species” are included in the concept of personal cultivation. S.3(2) excludes from vesting, lands comprised in a private forest under personal cultivation, within the ceiling limit applicable to its owner. That limit is small, and the legislature did not mind a limited extent of teak or eucalyptus plantations escaping from the vesting provisions, in the context of ceiling limits and personal cultivation. That is why 'cultivation' has been defined M.F.A(Forest)176/2007 17 to include cultivation of any species of trees. But when we turn to S.2(f)(1)(i) (C), the legislature was careful to exclude only fruit-bearing trees. When in the same Act, in two consecutive sections, both providing for exemption, the legislature speaks of only fruit-bearing trees in one, and of any species of trees in the other, it must clearly be inferred that trees grown for timber were not intended to be covered by the former. ## 17. xxxxxxxxxx 18. The same approach can be made to the meaning of the expression 'agricultural crop' also. If the use of the expression in (C) was to denote everything that could be called an agricultural crop in a wide sense, the specific enumeration of other well-known types of agricultural crops like coconut, arecanut, paddy, plantation crops and cashew earlier was unnecessary. Therefore, “agricultural crop” in (C) has to be understood at least as the residue after what have been specifically and separately dealt with. That means that the context militates against any attempt to attribute the widest connotation to this expression also.” M.F.A(Forest)176/2007 ## 18 **13.** Similar findings by a Full Bench in **State of Kerala v. Amalgamated Malabar Estates (P) Ltd.** [1979 KLT 829 (FB)] and **State of Kerala v. Malayalam Plantations** [1980 KLT 976 (FB)] were quoted with approval by the 5 Judges Bench in **Moosa Haji** supra. We, therefore, repel the said contention. In order to consider the cultivation of coconut under clause (A), albeit there being any pleading to that effect, we are not convinced that there is any difficulty; since it is only a wrong quoting of the provision. However, we find that the age of the coconut tress reported in Ext.C1 report does not indicate such cultivation as far back as on the appointed date. For the sake of completion, we may also note that the building in the scheduled property, going by the very showing in the original application, was constructed by the applicant after purchasing the scheduled property in the year 2004, thereby foreclosing any possible claim under Clause (D) to Section 2(f)(1)(i) also. M.F.A(Forest)176/2007 19 **14.** The remaining question is with respect to the exemption under Section 3(2) or 3(3) of the Vesting Act. The first aspect to be noted is that, there is no specific claim of any exemption under Section 3(2), or for that matter under Section 3(3), of the Vesting Act. We notice that, Ext.A15 is the oldest document of the year 1965, wherein, the _kanamkuzhikanam_ rights over landed property having an extent of 6 Acres [vide item II to the schedule] is seen transferred by one Ouseph in favour of his brother's son Chacko. Thereafter, by virtue of successive transfers, evidenced by Exts.A6 to A14 and finally by Exts.A1 to A5, the said rights over the scheduled property became vested on the applicant in the year 2004. The finding of the Tribunal that subsequent assignee of the title holder as on the appointed date has no locus to claim exemptions under Section 3(2) or (3) relying upon the judgment in **Koya** supra cannot be sustained in view of a Full Bench decision of this Court in **Parameswara Sastrigal** supra. Therefore, the prerequisite that the property in question should have M.F.A(Forest)176/2007 20 been held as an owner in S.3(2) and the requirement of being an owner under a valid registered document executed before the appointed day under S.3(3) can be taken as prima facie satisfied. However, the cultivation in the property for the purpose of Section 3(2) and the intention for cultivation for the purpose of Section 3(3) are not satisfied by the evidence on record. True, that the Commissioner found in Ext.C1 report certain coconut trees and arecanut trees in the scheduled property. However, the maximum age of such trees referred to in paragraph 5 of Ext.C1 report is 20 years, which does not satisfy the requirement of cultivation as on the appointed day, the scheduled property being inspected by the Commissioner only on 14.09.2006. At the risk of repetition, we again notice that none of the predecessors, or for that matter anybody else, having knowledge regarding the status of cultivation in the scheduled property as on the appointed day was not examined by the applicant. The intention to cultivate as envisaged in Section 3(3) is that of the owner of the property as on the M.F.A(Forest)176/2007 21 appointed day, in respect of which aspect also, there is complete dearth of evidence. Subsections (2) and (3) are exemptions to the general rule of vesting in the Government under Section 3 of the Vesting Act, wherefore, strict proof has to be insisted to recognize the exemptions claimed. We, therefore, confirm the finding of the Tribunal as regards the claim for exemptions under Section 3(2) and 3(3) of the vesting Act as well. **15.** Before parting with the judgment, we also address I.A. Nos.3 and 4 of 2022 seeking to adduce additional evidence under Order XLI Rule 27 C.P.C. We are not inclined to allow the said applications for more than one reason. First of all, the documents produced in I.A. No.3 of 2022, except Annexure AI referred to therein, are certified copies of the documents of the year 1985 and 1991 respectively, which cannot improve the situation of the applicant/appellant, in as much as, the status of the property as on the appointed day is in question. So far as Annexure-A1 is concerned, which M.F.A(Forest)176/2007 22 is claimed to be a certified extract of Town Survey Field Register maintained at the Village Officer, Koorachundu, we are disinclined for two reasons. Firstly, though it is certified to be issued by the Village Officer concerned, it does not contain the round seal/office seal. Nonetheless, we are not swayed away by such a technical reason, but we remain disinclined for a larger reason. The purpose of this document produced as Annexure-AI is to show that the scheduled property was cultivated with tapioca in the year 1964. The relevance of Ext.A25 settlement register produced before the Tribunal is also the same. Ext.A25 was not reckoned by the Tribunal for the reason that it was a photostat copy, though issued by a competent authority and that none was examined in proof of genuineness of the same. Ext.A25 also purports to prove that the scheduled property was cultivated with tapioca. However, we notice that, there is no claim/pleading in the original application as regards cultivation of tapioca, more so when other species of cultivation were specifically referred to and M.F.A(Forest)176/2007 23 claimed. As it is trite, any amount of evidence in the absence of a corresponding pleading is of no avail. Therefore, we are not inclined to accept the additional document produced at Annexure-A1. Nor do we find any illegality in not placing reliance upon Ext.A25 by the Tribunal. **16.** I.A.No.4 of 2022 is produced only today, the date of hearing, again seeking to adduce additional evidence. There, Annexure-I is the sole document sought to be produced, which is a reply given by the Special Tahsildar (L.R) to the applicant indicating that the file pertaining to SM 4698/1977 of the Land Tribunal, Balussery could not be traced. We do not find any relevance of the said document, especially when no pleading regarding the SM proceeding is there in the original application. We, therefore, reject the two interlocutory applications preferred under Order XLI Rule 27 C.P.C. M.F.A(Forest)176/2007 24 **17.** In the result, the 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** /