Kunhan (Died) S/o Mayan and Satheesan K S/o Kunhan 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 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 MFA (FOREST) NO. 11 OF 2009 AGAINST THE JUDGMENT IN OA 30/2006 OF FOREST TRIBUNAL, KOZHIKODE ## **PETITIONERS:** - 1 KUNHAN( DIED) S/O.MAYAN, KAPPAD, KANJIKULAM, PALAKKAD. - 2 ADDL.A2. SATHEESAN.K S/O. KUNHAN, AGED 48, KAPPUKADU VEEDU, KANHIKULAM POST, PALAKKAD - 678 596. (APPELLANT NO.2 IS IMPLEADED AS THE LRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 21/12/22 IN IA 1/22. BY ADVS. K.JAYAKUMAR (SR.) P.B.KRISHNAN SABU GEORGE MANU VYASAN PETER ABRAHAM BABU KALLIVAYALIL ## **RESPONDENTS:** - 1 THE STATE OF KERALA PRINCIPAL SECRETARY,FOREST & WILD LIFE DEPARTMENT,, SECRETARIAT, THIRUVANANTHAPURAM. - 2 THE CUSTODIAN OF VESTED FORESTSARANYA BHAVAN, FOREST COMPLEX,OLAVAKKODE,PALAKKAD. - 3 ADDL.R3.MANOHARAN.K . S/O. KUNHAN, AGED 50, KAPPUKADU VEEDU, KANHIKULAM POST, PALAKKAD - 678 596. - 4 ADDL.R4.MOHANAN.K. S/O. KUNHAN, AGED 44, KAPPUKADU VEEDU, KANHIKULAM POST, PALAKKAD - 678 596. ADDL. R3 AND R4 ARE IMPLEADED AS THE LRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 21/12/22 IN IA 1/22. BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST P.B.SUBRAMANYAN THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A (Forest) No.11 of 2009** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------M.F.A (Forest) No.11 of 2009** **------------------------------------------Dated this 13[th] February, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The appellant is the applicant before the Forest Tribunal under S. 8 of the Kerala Private Forest (Vesting & Assignment) Act, 1971, (for short 'the Vesting Act'). The appellant claimed that as per ' _patta cheet'_ of 10[th] Kumbham, 1134 M.E executed by the applicant in favour of Gopalan and Kuttikrishnan, sons of Sankaran; taken back from them and produced with the petition, the applicant came into possession of the scheduled property. It was asserted that the entire area is planted with rubber and then replanted. The property is lying contiguous with another property owned by the applicant lying to the east which are being enjoyed as a single unit. Earlier there was vesting alleged on the property lying to the east which was exempted by order of the Forest Tribunal produced as Ext.A2. The said land has not been restored till now and the obstruction in the application scheduled property was attempted **M.F.A (Forest) No.11 of 2009** **3** on 21.12.2006. It was alleged that the property is not covered by the Madras Preservation of Private Forests Act, 1949 (for short 'the MPPF Act') and are garden lands with private holdings on all its boundaries. There is absolutely no tree growth in the property and as on 10.05.1971 there was fugitive cultivation in the property and many portions were planted with cashew trees, jack fruit trees and other fruit bearing trees. The applicant or his family did not possess lands in excess of the ceiling limit under the Kerala Land Reforms Act. The applicant claimed exemption under S. 3(2) and also asserted that the scheduled property was lying as a single unit with the property owned by the applicant on the eastern side clearly bounded by a stone _kayyala_ (bund). 2. The Divisional Forest Officer, Palakkad denied every averment in the application and alleged that the scheduled land is a part of _Kottakunnu_ vested forest Bit No.2 governed by the MPPF Act and having a total extent of 93.5 hectares. The area was surveyed and demarcated and notifications produced as Exts. B1 and B2. The respondent denied the title claimed by the applicant, the possession of the lands, cultivation on it and further alleged limitation as a ground to reject the application _in limine_ . **M.F.A (Forest) No.11 of 2009** **4** 3. The Tribunal raised three issues being the maintainability of the application on the ground of limitation, the nature and lie of the property and the entitlement to declaration under S.3(2) of the Vesting Act. Limitation was found in favour of the applicant but the other two grounds went against the applicant. The applicant was found to have not proved the title on the property. Ext.A1 was not a registered document and the witnesses to the said document were not examined. Exts.A3 and A4 were not related to the scheduled property. Exts.A5 and A6 series, tax receipts and communications from the Rubber Board, did not contain the survey number and the same was not proved to have been issued with respect to the scheduled property. The Commission report only found one cashew tree and 3 mango trees and the rubber planted was only aged 2 to 3 years. The applicant did not prove that the land was not covered under the MPPF Act, which was the bounden duty of the applicant as held by the Full Bench in _**State of Kerala v. Chandraleka [1995 (2) KLT 152 (FB)]**_ . The claim of exemption under S.3(2) was also not proved as on 10.05.1971. The applicant failed in proving the ownership, possession, cultivation and the scheduled land being below the ceiling limit applicable under the Land Reforms Act. **M.F.A (Forest) No.11 of 2009** **5** 4. We find no reason to interfere with the ground of limitation especially since the notification was not published in accordance with the statutory rules. The applicant does not have a consistent case with regard to the title. In the application, though Ext.A1 was described as a _pattacheet_ executed by the applicant in favour of two others; it is a self-serving document of a lease having been accepted by the applicant. Ext.A1 was claimed to be the document by which the applicant obtained lease of 1 acre 50 cents lying in Sy.No.113/4 of Kongad Amsam Desam. Ext.A1 is a document executed in 1134M.E, which could be either 1958 or 1959. It indicates that the land described therein was taken possession of under a Kanam lease from two persons, the _janmavakasam_ of which property admittedly was with _Kongad Swaroopam._ It is not clear as to how the two persons, Gopalan and Kuttikrishnan sons of Sankaran obtained title to the property and even they have not signed the said document. Ext.A3 &A4 are again purchases made from Gopalan and Kuttikrishnan, sons of Sankaran of the _kanam_ rights existing in the properties which are situated in Sy.No.105/4. Both the schedules of Exts. A3 and A5 shows Sy.No.105/4 and the extent as 8 acre 27 cents, quite different from that seen in Ext.A1. Obviously these **M.F.A (Forest) No.11 of 2009** **6** are not the documents relating to the scheduled property. Hence the applicant has not proved either title or valid possession of the scheduled property. 5. Ext.A2 is an order of the Forest Tribunal with respect to the property lying to the east of the scheduled property to the present OA. A reading of the same would indicate that the applicant had obtained Ext.A1 purchase certificate from the Land Tribunal. Exts.A2 and A3 tax receipts and Ext.A4 possession certificate were also produced. It was found that there was no tree growth in the land and there was evidence to the effect that the land was cultivated with seasonal crops like tapioca etc. The exemption granted to the said land cannot in any event be applied to the scheduled land. It is also to be noticed that in the present application the claim is of fruit bearing trees and fugitive cultivation. 6. The Commission report was filed in the year 2007 after physical inspection on 21.08.2007. It is stated that the adjacent property on the east and the scheduled property are enjoyed by the applicant as one unit bounded on all the four sides with 4 ft. height stone wall. The Commissioner after noticing that _' the said wall is seen to be some 4 to 5 years old'_ scored of _'some 4 to 5 years'_ and by an interpolation altered **M.F.A (Forest) No.11 of 2009** **7** _'seen' to seem'_ . The sentence now reads as _'the said wall is seem to be old'_ . We can place no credence on the said statement and we are inclined to infer that the stone wall was built in the recent past, long after the appointed day under the Vesting Act. The rubber plants in the land were only 2 to 3 years and it was also reported that some root portion of old rubber trees were seen. As far as fruit bearing trees, only a cashew tree and 3 mango trees were seen in the property. As we noticed, the application spoke of recently planted rubber trees and the cultivation asserted as on the appointed day were fruit bearing trees and fugitive cultivation, none of which were proved. 7. Even if the case of the applicant is believed the applicant obtained the property on a lease as per Ext.A1. The applicant could have applied for a purchase certificate under the Kerala Land Reforms Act, which he obtained for the adjacent property lying to the east. There is no cultivation proved in the property as on 10.05.1971 either of fruit bearing trees, fugitive cultivation or of rubber plantation. At best the applicant has proved possession by reason of the Commissioner's finding that the property lying to the east, owned by the applicant and on which exemption was granted lies as a single unit with the scheduled property, **M.F.A (Forest) No.11 of 2009** **8** both bounded by a stone wall. As we indicated there is no clarity as to the age of the stone wall and the inference is of the same having been built in the recent past. There is also nothing to indicate that there was a stone wall and the property was lying as a single unit as on 10.05.1971. There is no such claim made in the earlier application and obviously the stone wall built was later to10.05.1971. Exts.A5 and A6 series of documents are all subsequent to the appointed day. We agree with the Tribunal that the appellant has failed to prove the title, possession and cultivation in the property as on 10.05.1971. We find no reason to interfere with the order passed by the Tribunal and we dismiss the appeal leaving the parties to bear their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** **jma**