K.S. Parameswara Sastrigal v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 MFA (FOREST) NO. 58 OF 2010** ## **AGAINST THE ORDER IN OA 88/1998 OF FOREST TRIBUNAL, KOZHIKODE APPELLANT/APPLICANT:** K.S.PARAMESWARA SASTRIGAL SON OF LATE K.P.SUBBARAMA SASTRIGAL,, `SIVASAILAM', EASWAR PATTAR MADOM,, KAVASSERRY, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV P.R.VENKATESH ## **RESPONDENTS/RESPONDENTS:** |1|STATE OF KERALA AND OTHERS| |---|---| ||BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA,,| ||THIRUVANANTHAPURAM.| |2|CUSTODIAN OF VESTED FORESTS| ||ARANYA BHAVAN, FOREST COMPLEX,, OLAVACODE,| ||PALAKKAD.| |3|GRACY DANIEL| ||II-378, THAIKOOTTATHIL HOUSE,, MUDIYOORKONAM,| ||PANDALAM, ADOOR,, PATHANAMTHITTA.| ||BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST| THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A[F].58/2010 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A [F] No.58 of 2010 -------------------------------------Dated this the 28[th] day of November, 2022** ## **J U D G M E N T** ## **Jayachandran, J.** **1.** An order of the Forest Tribunal, Kozhikode - pursuant to a limited remand on the question whether the applicant was in possession of land in excess of the ceiling limit - is under challenge in this appeal. O.A. No.88 of 1998 was preferred by the appellant seeking a declaration that the petition schedule property, having a total extent of 4.54 acres, is not a private forest ; and alternatively, for the benefit of exemption under Sections 3(2) or 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ['Vesting Act', for short]. The scheduled property, along with other items, was originally part of Kavalappara estate, having jenmom rights over the same. Verumpattam rights over the M.F.A[F].58/2010 3 properties were given to one K.V.John as per Pattam Chit No.1906/1961. As per document no.1585/1965, the rights of K.V.JOhn was assigned to one Daniel, who in turn assigned his rights to Kamalothbhavan, as per a document of the year 1981. Thereafter, the properties were assigned to one Pushparajan vide a document of the year 1995 and he assigned 6 and odd acres of land in favour of the applicant, of which, the schedule property is a part. There was interference from the forest officials, which led to filing of the suit O.S.183/97 before the Sub Court, Palakkad, which was withdrawn for lack of jurisdiction. Thereafter, the present O.A. was filed seeking the reliefs of declaration and exemptions referred above. **2.** The State of Kerala, along with the Custodian of Vested Forest, opposed the application contending _inter alia_ that the scheduled property is part of the vested forest. **3.** The evidence in the case at that stage consisted M.F.A[F].58/2010 4 of the testimonies of PWs.1 and 2 and Exts.A1 to A18 on the part of the applicant, as also, the testimonies of RWs.1 and 2 and Exts.B1 and B2 on the part of the forest department. Commissioner's report and plans were marked as Exts.C1 and C5 and Exts.X1 and X2 – which is crucial in the disposal of this appeal, about which detailed reference will be made herebelow – was marked as third party exhibits. The Tribunal allowed the O.A. in part, by granting the declaration sought in respect of 1.25 acres (shown in blue shade in Ext.C4) and rejected the claim in respect of the rest of the property. **4.** The order was challenged in M.F.A. No. 359/2000 carried before the High Court. Doubting the correctness of a Bench decision in **Koya v. State of Kerala [** 1987(1) KLT 830], the matter was referred to a Full Bench. The Full Bench allowed the MFA in part [ **Parameswara sastrigal v. State of Kerala -** 2008(2) KLT 461(FB)], holding that an assignee is entitled M.F.A[F].58/2010 5 to exemption under Section 3(2) or 3(3), if the assignor satisfies the legal requirements as on the appointed day, including the one in respect of not possessing land in excess of the ceiling limit. Allowing the M.F.A. in part, the case was remanded to the Tribunal, with the finding that the appellant/applicant is entitled to exemption under Section 3(3), if the assignor/owner was not in possession of any land in excess of the ceiling limit, as on the appointed date. The relevant findings are extracted here below: “Major part of the land was cultivated before the appointed day and balance was, in fact, cultivated after the appointed day. That shows that there was intention to cultivate the entire land on the appointed day. Hence appellant is entitled to exemption under section 3 (3) if the assignor, the owner on the appointed day was not possessing the land in excess of the ceiling limit prescribed under the Kerala Land Reforms Act. There is no evidence for that. Therefore, the M.F.A[F].58/2010 6 matter is remanded to consider the limited question whether the assignor, owner of the land, on the appointed day had got land only within the ceiling area or not. M.F.A.No.359/2000. Parties shall appear before the Forest Tribunal on 28.4.2008. Both parties are allowed to adduce evidence on that aspect. ” _(Underlined by us for emphasis)_ It could thus be seen that the limited scope of the remand was to answer the question whether the assignor/owner of the scheduled property was having any land in excess of the ceiling limit. The remand was necessitated for the reason that there was no evidence before the High Court to decide that question, which fact was specifically found in the judgment, as could be seen from the findings extracted above. **5.** Unfortunately, no evidence, whatsoever, has been adduced before the Tribunal, after the remand. **6.** Learned counsel for the appellant, Sri.Venkitesh M.F.A[F].58/2010 7 persuasively submitted that Exts.X1 and X2 constitute adequate evidence to prove that the applicant's predecessor was not in possession of land in excess of the ceiling limit. Ext.X1 is the report of the Tahsildar, which was forwarded to the Forest Tribunal, Kozhikode as per its directions, detailing the landed properties owned and possessed by the assignor/owner of the property, by name T.K.Daniel, as on the appointed date. While Ext.X1 is the letter issued by the Tahsildar, Alathur, Ext.X2 is a similar letter issued by the Tahsildar, Adoor. In answer to the contention that Exts.X1 and X2 are not duly proved by examining the persons who issued it, the argument of the learned counsel for the appellant is two fold. Firstly, it was pointed out that Ext.X1 and X2 are documents produced in terms of Rule 4 of the Kerala Private Forest Exemption from Vesting Rules 1974 ('Exemption Rules', for short) and thus having the mandate of the statute. Secondly, it was pointed out that, both Exts.X1 and X2 were documents, which M.F.A[F].58/2010 8 were called for by the Tribunal and submitted to the Tribunal directly, wherefore, no further proof by examining its author, as in the case of a private document, is required. **7.** We cannot, but reject both submissions of the learned counsel for the appellant for more than one reason. Firstly, Exts.X1 and X2 were very much part of the evidence already adduced before the Tribunal in the first stage, before remand. The Full Bench found in **Parameswara sastrigal** supra that, there is 'no evidence' to adjudicate the question whether the applicant's assignor was having land in excess of the ceiling limits, as per the Kerala Land Reforms Act and it is, 'therefore', the matter was remanded, as clearly and specifically indicated in paragraph no.5 of the judgment. In such state of affairs, we cannot find that Exts.X1 and X2, by itself, are sufficient to prove the fact in issue, without there being any support by way of the oral testimony of its author, M.F.A[F].58/2010 9 as regards the contents - and the truth of the contents - stated in Exts.X1 and X2; or such other material evidence. In this regard, we also refer to Order XLI, Rule 24 of the Code of Civil Procedure, which is extracted here below: “ **Where evidence on record sufficient, Appellate Court may determine case finally –** Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” This provision would only add force to our above finding that the evidence on record was not sufficient to find the issue, which was specifically directed to be considered, while remanding the matter. It is also relevant in this context to note that by remanding the matter, the Full Bench granted M.F.A[F].58/2010 10 liberty to both parties to adduce further evidence on the aspect of land, if any, in excess of the ceiling limit. **8.** Secondly, we find that a certificate in terms of Rule 4 of the Exemption Rules applies to an application made before the Custodian of Forests under Rule 3 of the said Rules. In a Bench decision of this Court in **State v. Madhavan Nair** [1989(1) KLT 579], a contention that, in the absence of a certificate as per Rule 4, the Tribunal cannot rely on other evidence was repelled, holding that Rule 4 is required only for the purpose of an application under Rule 3 and that the former rule does not apply to proceedings before the Forest Tribunal. Therefore, we are well within our limits to hold that a certificate in terms of Rule 4 of the Exemption Rules, by itself, would not vouch the factum of not having land in excess of the ceiling limits. Besides, we also find that, neither Ext.X1 nor Ext.X2 are M.F.A[F].58/2010 11 issued in Form no.2 as enjoined in Rule 4 of the Exemption Rules. **9.** The third point argued was that, since Exts.X1 and X2 were called for by the Tribunal, no further proof of its contents is warranted, yet another contention which we cannot endorse. First of all, we were not shown any provision in the Vesting Act enabling the Tribunal to call for such records as in the nature of Exts.X1 and X2. The law as regards burden of proof in the context of exemption under section 3(2) or 3(3) is settled on the shoulders of the applicant and in the absence of an enabling provision, we cannot find any pressing necessity for the Tribunal to call for such records. At any rate, proof in terms of law cannot be dispensed with, merely for the reason that Exts.X1 and X2 were forwarded to the Tribunal by the Tahsildars concerned in compliance with court's direction. As referred to earlier, the contents of the document as also, the M.F.A[F].58/2010 12 truth of the contents will have to be established by adducing oral evidence, offering an opportunity to the other side to examine in cross. **10.** Finally, we notice from the chief-examnation of PW1 - the applicant - that his predecessor/owner T.K.Daniel purchased pattam rights in respect of 31 acres in the year 1965, which document is marked through PW1 as Ext.A1. The extent spoken of would prima facie indicate land in excess of the ceiling limit under the KLR Act. **11** . Faced with the above situation, Counsel for the appellant fervently requested for one more remand, so as enable them to adduce necessary evidence on the issue. We are not in the least inclined, for, ample opportunity had already been afforded to the appellant. We note in reiteration that the remand was specific for a particular purpose/issue, with liberty galore on both parties to adduce fresh evidence. M.F.A[F].58/2010 13 Failure to avail such an opportunity can only be taken as a callous negligence, willful and deliberate as it is, which according to us is, fatal. There cannot be a remand to fill up the lacuna in the evidence and a second remand for the said purpose is hopelessly beyond contemplation. **12.** Left with no option, we dismiss the appeal for want of steps being taken pursuant to the remand, thereby leaving no legally recognizable evidence, whatsoever, in proof of the question whether the applicant's assignor was in possession of any land in excess of the ceiling limits under the Kerala Land Reforms Act. The parties shall bear their respective costs. ## **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/C.JAYACHANDRAN** Sbna/ **JUDGE**