KUNNAKKADAN MUSTAPHA (Died) and Others v. GOVERNMENT OF KERALA represented by CHIEF SECRETARY TO GOVERNMENT OF KERALA and THE CUSTODIAN OF VESTED FOREST OLAVAKKODU

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 ``` ## `MFA (FOREST) NO. 80 OF 2014` ``` AGAINST THE ORDER DATED 12.02.2014 IN O.A.NO.31/2013 OF FOREST TRIBUNAL, KOZHIKODE ``` ## `APPELLANTS/PETITIONERS:` - `1 KUNNAKKADAN MUSTAPHA (DIED), S/O. HAMZA, AGED 51 YEARS, PUTHUR AMSOM DESOM, TIRURANGADI TALUK.` - `2 VARGHESE, S/O. OUSEPH, AGED 58 YEARS PULIKADAN HOUSE, NADUVATTAMKARA, MALAYATTOOR VILLAGE.` - `3 KARTHANIKKUNNATH SAIDU, S/O. ASSAN, AGED 51 YEARS PUTHUR AMSOM DESOM, TIRURANGADI TALUK.` - `4 DEVIS, S/O.KOCHUVAREETHU, AGED 54 YEARS NEELEWARAM KARA, KALADY VILLAGE, ALUVA TALUK.` - `5 CHOLAPURATHU BEERAN, S/O. MOIDU, AGED 54 YEARS VILLUR AMSOM INDIANOOR DESOM, TIRUR TALUK.` - `6 ALIYAR, S/O. ANDOTHU, KOCHUPILLARI, MEKKALADYKARA, KALADY VILLAGE, ALUVA TALUK.(REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER SRI. C.P. ALI, S/O. MOIDU, CHOLAPURATH, POST PUTHUR, THIRURANGADI TALUK)` - `*7 ADDL.A7 TO A11 ARE IMPLEADED :-` - `AYSHA.K, AGED 52 YEARS, W/O.KUNNAKKADAN MUSTHAFA, KUNNAKKADAN HOUSE, VALIYAPARAMBA PUTHOOR.P.0., KOTTAKKAL, MALAPPURAM DISTRICT, KERALA- 676 503.` - `8 SHIHABUDHEEN KUNNAKKADAN, AGED 37 YEARS, S/O.KUNNAKKADAN MUSTHAFA, KUNNAKKADAN HOUSE, VALIYAPARAMBA PUTHOOR.P.0., KOTTAKKAL, MALAPPURAM DISTRICT , KERALA- 676 503.` - `9 UMMUSELMA.K., AGED 33 YEARS, W/O.SAMEER.P., PUTHUKUDI HOUSE, PAITHIRIPARAMBU, ERNAD, MELMURI, MALAPPURAM DISTRICT, KERALA - 676 517.` - `10 HAMZA.K., AGED 31 YEARS, S/O.KUNNAKKADAN MUSTHAFA, KUNNAKKADAN HOUSE, VALIYAPARAMBA PUTHOOR.P.0., KOTTAKKAL, MALAPPURAM DISTRICT, KERALA- 676 503.` **MFA (F) No.80/2014** ``` - 2 - ``` ``` 11ADDL.A11.TASLEEMA.K., AGED 28 YEARS, D/O.KUNNAKKADAN MUSTHAFA, KUNNAKKADAN HOUSE, VALIYAPARAMBA PUTHOOR.P.0., KOTTAKKAL, MALAPPURAM DISTRICT , KERALA- 676 503. ``` ``` *THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 7 TO 11 AS PER ORDER DATED 16/02/2023 IN IA 1/2023 IN MFA 80/2014 . ``` - `*12 ADDL.A12 TO A14 ARE IMPLEADED :-` ``` SHALY DAVIS W/O.LATE DAVIS, MOOLAN HOUSE, KALADY, MALAYATTOOR NEELESWARAM, ERNAKULAM. ``` - `13 LINTLE DAVIS` ``` D/O.LATE DAVIS, MOOLAN HOUSE, KALADY, MALAYATTOOR NEELESWARAM, ERNAKULAM. ``` - `14 LISMOL DAVIS D/O. LATE DAVIS MOOLAN HOUSE, KALADY, MALAYATTOOR NEELESWARAM, ERNAKULAM.` ``` *THE LEGAL REPRESENTATIVES OF THE DECEASED 4TH APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 12 TO 14 AS PER ORDER DATED 03/03/2023 IN IA 3/2023 IN MFA 80/2014 . ``` ``` BY ADV P.M.POULOSE ``` ## `RESPONDENTS/RESPONDENTS:` - `1 THE GOVERNMENT OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.` - `2 THE CUSTODIAN OF VESTED FOREST OLAVAKKODU, PALGHAT DISTRICT.` ``` BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ``` ``` THIS MFA (FOREST) HAVING BEEN FINALLY HEADRD ON 03.03.2023, THE COURT ON 06.03.2023 DELIVERED THE FOLLOWING: ``` **MFA (F) No.80/2014** ``` - 3 - ``` K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ----------------------------------------------------------M.F.A.(Forest) No.80 of 2014 --------------------------------------------------------Dated this the 06[th] day of March, 2023 ## JUDGMENT ## K.Vinod Chandran, J. The appeal is by the applicants under Section 8 of the Kerala Private Forests (Vesting & Assignment) Act, 1971 (for short ‘the Vesting Act). The applicants were concerned with 20.200 hectares and 0.500 hectares separately scheduled in the application, lying within Sy.Nos.88/1A3 and 88/1A4 of Periya Village, Manathavadi Taluk, Wayand District. The applicants trace the title of the property to one A.K.Khadharkutty who had lease hold rights over a larger extent of 390.81 acres in Sy.No.88/1A, B and C of Periya Village which he purchased as per a document dated 02.03.1943, marked as Ext.B4. After Re.Sy in 1946, the properties were sub divided into parts under Sy.No.88 and from the larger extent, 100 acres in Sy.No.88/1A1 was said to be sub leased by A.K.Khadharkutty to one Kuttibi and her five children as per registered marupattam deed dated 31.08.1964, marked as Ext.A6. The application scheduled property is part of the property **MFA (F) No.80/2014** ``` - 4 - ``` covered by Exts.B4 and A6. Actually Kuttibi and her children possessed 139 acres though the extent in Ext.A6 is 100 acres. 2. It was also asserted that the property in possession of Kuttibi was planted with cardamom and coffee and there also existed other cultivations. Kuttibi entered into an agreement with Mamukoya and Rasheeda to sell 139 acres of land, which agreement was breached and the intending purchaser approached court for specific performance. The trial court only granted return of advance amounts which was reversed in appeal by the High Court, wherein specific performance was ordered. A sale deed was executed by the Sub Judge, Sulthan Bathery in the name of Kummatti Veettil Rasheeda and the legal representatives of Mamukoya. The assignees continued cultivation in the property and thereafter 59 acres out of the larger extent was assigned in favour of the applicants as per Exts.A1 to A4, on which purchase certificates were obtained, marked as Exts.A11 to A14. The application scheduled land hence is a cultivated land not capable of vesting under the Vesting Act, especially since it existed as a cardamom and coffee plantation as on 10.05.1971, the appointed day under the Vesting Act. The applicants have also challenged Ext.B2 notification by which the scheduled lands were notified, as illegal and inoperative in law, especially when the notification was issued only to frustrate the **MFA (F) No.80/2014** ``` - 5 - ``` removal of trees felled in the property. The earlier notification did not include 59.366 acres of the property and merely notified the vesting of 3.20 hectares by Ext.B1 notification. 3. The respondents filed counter affidavit asserting that the scheduled land is a private forest and disputing the title and possession of the applicants. Even the assignors of the applicants did not have title and there cannot be any claim laid to a larger extent than that in Ext.A6; which reduced extent itself was not proved to be owned by Kuttibi. It was also contended that the proceedings in the suit, the Taluk Land Board and the Land Tribunal do not bind the respondent forest department and the statutory vesting cannot be disturbed by such proceedings where the department was not a party. From the larger extent of 391.07 acres held by A.K.Khadharkutty, 332.37 hectares, governed under the Madras Preservation of Private Forests Act, 1949 (for short the MPPF Act) was admitted to have vested under the Vesting Act. Ext.B1 notification was brought out and in the year 2000 when massive tree felling took place there was a survey conducted and the further extents of 20.20 hectares from Sy.No.88/1A3 and 0.50 hectares from Sy.No.88/1A4 were notified as per Ext.B2, which was an erratum notification including the extent omitted to be notified earlier. In any event, the vesting is statutory and **MFA (F) No.80/2014** ``` - 6 - ``` does not depend upon the notification 4. On the side of the applicant PWs.1 and 2 were examined and Exts.A1 to A61 were marked. RWs1 and 2 were examined for the respondents and Exts.B1 to B6 series were marked. A local inspection is seen to have been conducted by the Tribunal and copies along with sketch given to both parties, as recorded in the order. 5. The Tribunal raised issues on the validity of Ext.B2 notification, title of the applicants and the assignors over the scheduled property, the lie and nature of the property and the entitlement to the declaration for exemption from vesting. The notification Ext.B2 was found to be perfectly legal and valid, especially noticing the decisions of this court in Ranga Shesha Hills Pvt.Ltd v. State of Kerala [1991 (2) KLT 49] and Jojy Jacob v. State of Kerala [2011 (1) KLT 79]. Looking at the various documents regarding title and the discrepancies in the extent as also the absence of a proper identification of the property with reference to the title deeds, it was found that the claim of title was specious. It was found that the sale deed executed by the court does not establish the title of the defendants in the suit. When there is a cloud on the title of the defendants against whom specific performance was ordered; unless the defendants are proved to have an alienable right in the property, there could be no title conferred merely because the deed **MFA (F) No.80/2014** ``` - 7 - ``` was executed by a court of law. It was categorically held that Exts.A1 to A4, executed pursuant to the sale deed executed by the Court, Ext.A5, would not confer title on the applicants. As far as the purchase certificate is concerned, it was issued on the basis of Ext.A15 NOC and the plan prepared by the Survey Authority marked as Ext.A16. A number of decisions of this Court held that the purchase certificate issued under the Kerala Land Reforms Act is not binding on the Forest Tribunal. As far as Ext.A15 is concerned, it was found that the Divisional Forest Officer was not competent to exclude any land from vesting and Ex.A15 was issued at a time when Ext.B2 notification had not come out. Ext.A61 proceeding of the Taluk Land Board, Kozhikode in which 140 acres of land in Sy.No.88/1A1 was exempted from vesting on the ground of it being cardamom plantation in the possession of Kuttibi was found to be not conclusive; relying on Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221]. It was also noticed that Ext.A61 only speaks of Kuttibi having possession of 1 acre situated in Sy.No.88/1A1. Mohamed Basheer v. State of Kerala [2002 1 KLT S.N. 4 [CaseNo.4] was held to be a solitary decision as against a number of earlier decisions which found the purchase certificate issued under the Land Reforms Act to be not conclusive proof of exemption from vesting. **MFA (F) No.80/2014** ``` - 8 - ``` 6. The lands were held to be covered under the MPPF Act not entitled of any of the exclusions under clauses (A) to (D) of Section 2(f) (1)(i) of the Vesting Act. There was complete absence of documentary and oral evidence to prove that the scheduled property was a cardamom plantation and even the Commission Reports Exts.A60 and A58 respectively filed after inspection on 25.11.1984 and 21.10.2000, cannot be relied upon. The local inspection conducted by the Tribunal also showed large number of predominant trees normally found in a forest. Quite surprisingly in paragraph 32 the Tribunal held that the consideration for exemption under Section 3(2) or (3) of the Vesting Act does not arise since the property has been found to be not a private forest capable of vesting under the Vesting Act. This is quite incongruous with the earlier findings in the impugned order; but the Tribunal examined the matter and there is found a total absence of evidence to indicate a cultivation or a plantation or even an intention to cultivate. The Tribunal eventually dismissed the application, despite the above mentioned incongruous finding. 7. The learned Counsel for the appellant Sri.P.M.Paulose at the outset contended that Ext.B2 notification is illegal and invalid. It is pointed out that an assumption that the earlier notification was issued after surveying the lands is quite plausible, and if that be so, the **MFA (F) No.80/2014** ``` - 9 - ``` persons who surveyed the lands noticed the cultivation existing in the 59.366 acres and confined the notification of vesting to 3.2 hectares. Admittedly, there were proceedings initiated against the applicants when they were attempting to remove the trees felled in the scheduled property. The High Court had set aside the notification which however was interfered with by the Honourable Supreme Court, despite which the Tribunal was directed to consider the question of its validity. The erratum notification was definitely a mala fide attempt on the part of the Forest Officials to thwart the attempt of the applicants to remove the trees. Ext.B2 notification hence is invalid and as of now State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260] clinches the issue as far as the claim to exemption which is automatic when a purchase certificate is issued. It is argued that the purchase certificate issued to the owners who acquired the property much after the vesting date, would still survive since the issuance of purchase certificate under the Land Reforms Act is based on the holding as on 01.4.1964. Mohammed Basheer(supra) held that the purchase certificate issued under Section 72K is conclusive proof of title and such lands are exempted under the Vesting Act. The decisions in Kunjanam Antony (supra) and State of Kerala v. Popular Estates [(2004) 12 SCC 434] were under Chapter III of the Land Reforms Act while Mohammed Basheer (supra) specifically **MFA (F) No.80/2014** ``` - 10 - ``` looked at S.72K of the Land Reforms Act coming under Chapter II. The Purchase Certificate issued under S.72K is conclusive proof of the land being not a private forest, and the exemption under S.3(vii) of the Land Reforms Act would not definitely be applicable. It was argued that the definition of private forests under the Land Reforms Act is different and distinct from that under the Vesting Act. The issuance of a Purchase Certificate being statutorily conclusive as per S.72K, there is a presumption that the property is not a private forest. Though the Government is not in an adversary position, they have a right to file an appeal from the order of the Tribunal, as noticed in Mohammed Basheer (supra). The Government has not filed any appeal from the proceedings before the Land Tribunal, which led to the issuance of the purchase certificates. 8. The learned Special Government Pleader [Forests] Sri.Nagaraj Narayanan pointed out that the Tribunal referred to a number of decisions of this Court to hold that a purchase certificate issued under the Land Reforms Act would only be a piece of evidence and not conclusive proof of the cultivation carried on in the subject property. The position has been affirmed by two decisions of the Hon'ble Supreme Court in Kunjanam Antony and Popular Estates (both supra). Mohammed Basheer (supra) was a subsequent decision **MFA (F) No.80/2014** ``` - 11 - ``` of the Hon'ble Supreme Court which, it is argued, is per incurium. It is pointed out that Mohammed Basheer (supra) noticed Kunjanam Antony (supra) but distinguished it on the ground that the earlier decision did not consider the conclusiveness of a purchase certificate issued under S.72K of the Land Reforms Act. In fact in Kunjanam Antony (supra) the applicant raised the contention that the land alleged to have vested under the Vesting Act, had been exempted from the ceiling proceedings under the Land Reforms Act by the Taluk Land Board, on the ground that it was a rubber plantation. That was a better ground since, therein, a statutory authority had found that the property was cultivated, which absolves it from vesting under the Vesting Act. Even then it was held to be only a piece of evidence and not conclusive. Popular Estates (supra) also considered an exemption granted by the Taluk Land Board, on the ground of the land being a plantation and the Supreme Court noticed that the consideration for exemption from ceiling limit under the Land Reforms Act cannot operate as res judicata since both private forests and plantations are exempted under the ceiling limit of the Land Reforms Act, the decision in Mohammed Basheer (supra) is per incurium going by the the Constitution Bench decision in N ational Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] **MFA (F) No.80/2014** ``` - 12 - ``` 9. It was argued that the enquiry of the Land Tribunal under the Land Reforms Act is not comprehensive to verify the nature of the cultivation and its extent. Often claims are accepted, based on the reports made by the Revenue Inspectors, who only look at the aspect of possession and not necessarily cultivation. The learned Special Government Pleader pointed out that S.53 of the Land Reforms Act enables a cultivating tenant entitled to fixity of tenure under S.13 to purchase the right, title and interest of the land owner and intermediaries, in respect of the land held by him. S.13, a non obstante clause, speaks of the rights of tenants to fixity of tenure. S.72K by subsection (1) provides for issuance of Certificate of Purchase to the cultivating tenant, upon which the right, title and interest of the land owner and the intermediaries, in respect of the holding or part thereof, to which the Certificate relates, vests in the cultivating tenant, free of all encumbrances created by the land owner or the intermediaries. Subsection (2) of S.72K also mandates the Certificate of Purchase to be conclusive proof of the assignment to the tenant, of the right, title and interest of the land owner and the intermediaries. According to the learned Special Government Pleader this is only conclusive proof of title and not proof of cultivation. In this context, the learned Special Government Pleader also took us to the definition clause of cultivating **MFA (F) No.80/2014** ``` - 13 - ``` tenant [S.2(8)]; defined as a tenant who is in actual possession of land, entitled to cultivate the land comprised in his holding. The Land Reforms Act does not require actual cultivation for enabling fixity of tenure or issuance of Purchase Certificate; which is required to be proved under the Vesting Act as on the appointed day to absolve the property from vesting under the Vesting Act. 10. Further It is pointed out that S.3(1)(vii) exempts leases of private forests from the operation of Chapter II, in which Chapter is contained the provisions regarding deemed tenants and S.13, which speaks of rights of tenants to fixity of tenure. The definition of private forests under both enactments exclude cultivated lands and waste lands which are not enclaves within wooded areas. S.72, which speaks of vesting of landlord’s rights, in Government, provides that all right, title and interest of the landlord, owners and intermediaries in respect of holdings held by cultivating tenants [including kudiyirippus and kaaraymas] entitled to fixity of tenure under S.13 and in respect of which Certificates of Purchase under sub-section (2) of S.59 have not been issued, shall vest in the Government free from all encumbrances. Hence, the vesting occurs only of lands, where fixity of tenure can be claimed under S.13; which is not applicable to leases of private forests. Hence even if there is a lease as claimed by the applicant herein, if it is **MFA (F) No.80/2014** ``` - 14 - ``` of a private forest without any cultivation specified in clause (ii) to (iv), there could not have been any vesting under the Land Reforms Act for reason of the exemption under S.3(1)(vii). If there is no vesting, then of course the Purchase Certificate issued is questionable. There is no proof offered as to the cardamom cultivation carried on in the scheduled property and the applicants before the Tribunal failed to establish that they possess land below the ceiling area under the Land Reforms Act. It is also pointed out that Section 105 of the Kerala Land Reforms Act provides for an authorised officer, not below the rank of a Revenue Inspector to obtain information from any person relating to the extent of land held by such person and his family members and such other particulars as prescribed for the purpose of implementing the provisions of the Land Reforms Act. The authorised officer merely collects the information to bring into effect the provisions of this Act and it does not necessarily place the Government in an adversary position before the Land Tribunal. It is also urged that the private forests under the Vesting Act includes those under the Land Reforms Act and as on 10.05.1971 there is a vesting under the Vesting Act de hors a notification. The learned Special Government emphasised the aspect of no proper identification of the property having been carried out relying on Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]. **MFA (F) No.80/2014** ``` - 15 - ``` 11. The first issue to be adjudicated is the legality and validity of Ext.B1 notification. As far as Ext.B1 notification is concerned it was only with respect to 3.20 hectares in Sy.No.88/1A3 while by Ext.B2 a further extent of 59.366 acres in 88/1A3 was also notified as having vested under the Vesting Act. As rightly found by the Tribunal based on Ranga Shesha Hills Pvt.Ltd (supra), the vesting occurs statutorily as on 10.05.1971 and it cannot be postponed to the date of notification nor is it dependent upon a notification issued; which notification is only for the purpose of intimating the vesting after the demarcation; relevant for computing the limitation for approaching the Tribunal. We have seen the ground of limitation raised before the Tribunal, by the forest department, oftener than ever being rejected, especially since the department is unable to prove the publication as per the statutory rules. But this does not at all affect the vesting and again, often the owners approach the Tribunal much after the notification since interference to the possession often occurs much later to the notification; which interference occurs on survey and demarcation. We endorse the views of the Tribunal which relied on Jojy Jacob (supra) to find that the delay caused due to the inadvertence or negligence, to properly demarcate the boundaries of the vested area and notify it, cannot invalidate the actual vesting which **MFA (F) No.80/2014** ``` - 16 - ``` occurs as on the appointed day. We have to further observe that there can be no assumption that the extent later notified under Ext.B2 was not included in Ext.B1 for having found cultivation in the property; which could as well be established by the applicants to invalidate the notification or rather to exclude or exempt the property from the rigor of vesting which is only made known to the whole world by the act of publishing a notification. Ext.B2 is perfectly valid and legally issued. 12. In the present case, the specific contention was that only on mass felling of trees, the Forest Officials noticed the mistake and informed the higher authorities. Undisputedly proceedings were taken against the persons who held the property, who were also attempting to remove the trees felled in the property. The issuance of an erratum notification, that too when an attempt to cut and remove forest trees were prohibited, cannot by itself be termed to be a mala fide act. The vesting having occurred under the statute, the notification is just a publication made of the statutory vesting and there cannot be an estoppel against the statute merely for reason of the earlier notification having not included the presently notified extent. RW1 categorically stated that often the notification is first brought out and then the survey conducted for demarcating the boundaries. We hence fully endorse the findings of the Tribunal that there is no illegality or **MFA (F) No.80/2014** ``` - 17 - ``` invalidity in the erratum notification published as Ext.B2. 13. On the question of title we have examined the various documents. Ext.B6 is the document by which Khadarkutty is said to have obtained rights over the property. In the schedule to the said document there are two items of property of which the first one is in Sy.No.88/1ABC, which is shown as an extent of 390.81 hectares. We are not concerned with the second item in a totally different survey number. It is by Ext.A6 that Kuttibi and her five children claim to have obtained marupattam of 100 acres. The schedule in that document indicates the extent as 100 acres and the survey number as 88/1A1 . At the outset it is to be noticed that the said document is not the original of a registered document and it is not clear whether it is a certified copy. The seals available in the document are smudged to the point of not being able to identify the Sub-Registrars Office which issued it and there is no certification from the Sub-Registrars Office available. We have serious doubts about whether the same is a genuine certified copy. The stamp paper of Rs.5/- on which the first page is written shows it having been purchased on 16.05.1984 by one A.P.Ahammed, Periya, who is not indicated to be an interested party from any of the documents produced by the applicants. Further it has to be noticed that Ext.A6 deed, by which lease hold rights were obtained by Kuttibi **MFA (F) No.80/2014** ``` - 18 - ``` and her children, based on which it was asserted that the purchase certificate was issued, is dated 31.08.1964. This clearly establishes that the lease was subsequent to 01.04.1964 which, as on the said date was prohibited under the Kerala Land Reforms Act by Section 74 of that Act; K .Sankaran Nair v. Devaki Amma Malathi Amma [1996 7 SCC 282]. We cannot place any reliance on Ext.A6. As a consequence we cannot apply the dictum in Mohammed Basheer (supra) and grant exemption to the scheduled property merely on the grounds of Ext.A11 to A14 purchase certificates. 14. Further it has to be noticed that out of 390.81 acres in Ext.B6, Kuttibi allegedly obtained lease hold rights only to 100 acres. However, when the sale deed was executed by the Sub Court in a suit for specific performance, as per Ext.A5, 139 acres was assigned. This has to be viewed in the context of Khadharkuty having been permitted exemption only to 60 acres from the ceiling limits as per Ext.A55 proceedings of the Land Board. Definitely the 79 acres assigned as per Ext.A5 did not belong to Kuttibi or her children and there were no alienable rights on the defendants, especially when, even the purchase certificates were issued much later and that too to the assignees of the plaintiffs in the suit for specific performance. There was also no attempt made by the applicants to identify the property which came **MFA (F) No.80/2014** ``` - 19 - ``` into the hands of Mamukoya & Rasheeda, as per Ext.A5, obtained through Court from Kuttibi and others, who obtained it as per Ext.A6; by appointment of a Commissioner. The purchase certificates were also issued to different persons as is seen from Exts.A11 to A14. There is no pleading as to the separate extents held by each of them nor is there any testimony by even the power of attorney holder as to the separate extents held by the different persons who were issued with purchase certificates. All the persons who were issued with purchase certificates have not joined as applicants, nor is there an averment that the applicants approached the Tribunal on their behalf. Admittedly, in Sy.No.88 and the various parts in the very same survey number, there were large extents of property out of which the applicants claim only exemption to 59.366, acres which had to be clearly identified. In the above circumstances, the decision of the Honourable Supreme Court in Mohammed Basheer (supra) does not further apply especially considering the dictum as to the absolute necessity of identification as has been found by the Honourable Supreme Court in Hamsa Haji (supra) which held so: “30. We thus confirm the decision of the High Court and dismiss the appeal with costs. We hope that this judgment will act as an eyeopener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by **MFA (F) No.80/2014** ``` - 20 - ``` ## claimants as also the identities of the lands sought to be claimed, while entertaining applications under Section 8 of the Act. [underlining by us for emphasis] 15. The properties covered by the purchase certificates were not identified with reference to those certificates, with the help of a Commissioner. Two Commission reports were allegedly obtained by the applicants, in the suit and before this Court as testified by PW1. Both were produced as Exts. A58 & A60 before the Tribunal, Ext. A58, the report of the Commissioner deputed from the High Court and Ext.A60 that marked in the Suit. Only the Commissioner who prepared Ext.A58 was examined before the Tribunal. The Commissioner, in the report, identified the property as per Exts.P2 and P4, produced in the original petition, but however, there was nothing stated as to what were the said documents, either by PW1 or by PW2. Hence the identity of the property scheduled still remains elusive. The Commissioner noted an existing building, agricultural cultivation and other structures in the property. The total extent of the property as per the documents was stated to be 46.78 acres in R.Sy.Nos.88/1A3 and 88/1A4 in Periya Village, again the extent differs from that scheduled and the survey number of the property obtained by Kuttibi & others was 88/1A1. As far as the existing building is concerned, it is a small tiled house constructed with mud bricks having six rooms. The building was **MFA (F) No.80/2014** ``` - 21 - ``` assessed by the Commissioner to be around 35 years old. The door numbers seen in the building where that presently assigned by the Thavinjal Panchayath. Another similar building with two rooms and a lean-to was found nearby without any door number; the age assessed to be 30 years. In verifying the plantation the Commissioner took the assistance of the officers of the Coffee Board especially for determining the age of the coffee plants. It was noticed that except for 2 acres the entire area is a coffee plantation, with systematic plantation of 8/8 feet and 10/10 feet. The officers of the Coffee Board assessed the age of the plantation to be 2 years, whereas the Power of Attorney Holder of the applicants, PW1 claimed it to be of 4 years age. The Commissioner opined that it is safe to accept the age as stated by the officers of the Coffee Board. There were also small patches in the property where old coffee plants were seen having an age of 15 years. All the plants were neglected and according to the officers of the Coffeee Board a properly maintained plantation would be in 8/8 mode of cultivation. Seven acres of the land was cultivated with tapioca of which, in 4 acres it was interplanted with coffee. The tapioca cultivation was not ready for taking yield and hence the same is also of recent origin. Pepper vines were seen in approximately 40-50 trees which are yielding and have an approximate age of 10 years. There were also 100 arecanut tree **MFA (F) No.80/2014** ``` - 22 - ``` standing which approximate age of 7 years. A portion of the property was also panted with plantain, numbering around 2000 plants. The Divisional Forest Officer, who was assisting the Commissioner also through a note requested the Commissioner to take note of the number of trees per acre, their girth and average height. However, the Commissioner did not attempt it since there was no direction by the court, so to do, and admittedly to verify the said data at least 15 days would be taken. Ext.A58 dated 23.10.2000 thus do not at all establish a plantation as on the appointed day; ie.10.05.1971. 16. It is very relevant that the inspection was carried out on 04.10.2000, almost 30 years from the appointed day under the Vesting Act. The cultivation seen in the property does not relate to the appointed day under the Vesting Act at all. Even the age of the buildings assessed at 35/30 years was an amateur assessment, which need not be given too much relevance since it only permits exclusion of the land for convenient enjoyment. The cultivation on the other hand was verified and assessed by the persons who were familiar with such aspects. It is also pertinent that even as per the application and the testimony, the admitted case was that the scheduled lands are cardamom plantations as on the appointed day. In fact, the averment in the application contrary to the documents produced of cardamom **MFA (F) No.80/2014** ``` - 23 - ``` plantation, is that the 20.700 hectares was planted with cardamom, coffee and other agricultural crops. The demand notices issued under the Plantation Tax Act, which we will immediately refer to, indicates only cardamom cultivation and not at all coffee which was also one of the items mentioned in the assessment notice. In fact, along with cardamom; coconut, arecanut, rubber, coffee, pepper and tea were also indicated in the notices; the yield in none of which later mentioned crops, were taken for assessment. There is also no remnant of cardamom found in the property. Admittedly, the entire extent was overgrown with trees even as recorded by the Commissioner, the examination of which, for recording the number and girth of trees would take atleast 15 days; clearly indicative of the nature of such land remaining as forest. The cultivation being of the present cannot be reckoned as personal cultivation carried on by the holder as on the appointed day under the Vesting Act. We also looked at Ext. A60 for completeness though the Commissioner was not examined and the same proved. It was a Commission taken out to determine the fallen trees in the property, which is not really relevant for the present adjudication. But a number of such trees were noticed and even in 1984, as noticed by the Commissioner the entire area of the estate is not planted with cardamom and there are small hills, valleys and **MFA (F) No.80/2014** ``` - 24 - ``` marshy lands inside the property. There were also high grown weeds in some portions and it was opined that there was no proper maintenance carried out; despite noticing 6 female workers in the land at the time of inspection. This report also offers no assistance to the applicants. 17. We notice Ext.A17 to A20 notices issued under the Plantation Tax Act for the years 1970-71 to 71-72, 74-75 to 75-76, 81-82 to 83-84, 76, 77 and also A24 to 27 for various years. The assessment made is for the cardamom plantation of about 14.1640 acres, out of a total of 56.6559 acres existing in Sy.No.88 part. All these notices have been issued to Kuttibi and though it speaks of an assessment made under the Plantation Act, again the extent differs and there is no correlation with the purchase certificates, covering the different areas. The cardamom plantation is said to have been assessed under the Plantation Tax Act, but the identity of the property is suspect. Admittedly, the area lies within the Malabar District and was a private forest having contiguous area of more than 100 acres as on 14.12.1999, the day on which the MPPF Act came into force. The description of the property in Ext.B6 is ‘Myladimala, Mangalammala’ known as ‘Elamala’; 'mala' in the vernacular means a mountain and 'elam' means cardamom. In this context, we have to also reckon Exts.A55 and A61 documents, proceedings of the Taluk Land Board. Ext.A55 is the ceiling **MFA (F) No.80/2014** ``` - 25 - ``` proceedings against A.K.Khadarkutty. Claim No.2, for exemption of 60 acres on the ground of cardamom plantation was allowed. There is no further land granted exemption under Sy.No.88 and Kuttibi who is alleged to have taken on lease 139 acres was never before the Land Board claiming exemption on the ground of fixity of tenure; on which is founded the claim of issuance of purchase certificate under the Land Reforms Act. Hence, it has to be understood that the entire land owned by A.K.Khadarkutty in Sy.No.88/ABC were surrendered in the ceiling proceedings except the 60 acres exempted as plantation. Now the question arises as to whether the presently scheduled lands are comprised in this exempted land; which at the outset cannot be, since Kuttibi claims 100 acres was leased out to her, suspicious as we noticed, and claims actual possession on 139 acres makes it further specious. 18. Interestingly Ext.A61 is the Taluk Land Board proceedings dated 26.12.1984 of Kuttibi. Paragraph No.10 is the objection raised by the holder of the land as against 140 acres shown in R.Sy.No.88/1A1 of Varayal Village in north Wayanad existing as a private forest as on 01.04.1964 and converted into a cardamom plantation as on 1965. The area was exempted from the ceiling proceedings since both, private forest and plantation, are exempted. Again there arises the dispute on **MFA (F) No.80/2014** ``` - 26 - ``` the actual extent and here the cardamom plantation is said to be 75 acres which again was not identified or correlated with the title deeds or purchase certificates. Further the purchase certificates produced as Exts.A11 to A14 indicate the respective properties lying in R.Sy.No.88/1A3A (Ext.A11 – 6.1716 hectares in the name of Alassan s/o Kunhikoya and Vavachan s/o Cheriya), R.Sy.No.88/1A3 (Ext.A12 - 6.1919 hectares in the name of Karthan Kunnath Said and Davis, Chooloor House), R.Nos.88/1A3 and 88/1A4 (Ext.A13 – 2.9017 and 0.6475 hectares respectively in the names of Kunnakkadan Mustaffa and Ouseph S/o Varhese) and R.Sy.No.88/1A3 (Ext.A14 - 4.9454 hectares in the name of Beeran and Aliyar). None of these properties are existing in Sy.No.88/1A1; which is the Survey Number shown in Ext.A6 the alleged marupattam deed of Kuttibi and her children as also the ceiling proceedings, Ext.A61. The total of the extents covered by the purchase certificates is 20.851 hectares; equivalent to 51.54 acres. In the schedule to the application the lands are shown as two bits of 20.20 hectares and 0.500 hectares without any demarcation which could have been easily demarcated on the basis of the purchase certificates. 19. We have already noticed that the title of the property and its identity have not been unequivocally established by the applicants. Ext.B6, by which Khadharkutty obtained the property in 1943 showed **MFA (F) No.80/2014** ``` - 27 - ``` the property is to be in Sy.No.88/ABC. The specific contention of the applicants is that re-survey was conducted in the year 1946. By Ext.A6, if at all believed to have been properly executed; therein the schedule shows Sy.No 88/1A1 in which exists 100 acres of property, which is said to be a part of 300.97 acres. As is found from the schedule to the application no property in R.Sy.No.88/1A1 is sought for exemption and hence the title traced to Kuttibi and Khadharkutty, by the applicants cannot be countenanced. The purchase certificates also do not indicate the above survey number. That Kuttibi & her children had cardamom plantation is established, but the same was in the scheduled properties, has not been proved. The title of the applicants arise from the vendors, who are the assignees of Kuttibi and her children, the assignment having been procured through a suit for specific performance of properties again not in R.Sy.No.88/1A1, but in other parts of Sy.No.88 specifically 1A3 and 1A4 as seen from the schedule to the application. Kuttibi had cardamom plantation as seen from the various assessment notices, wherein 56.655 acres were said to be comprised in Sy.Nos.88/1A1, 1A3 and 1A4. The possession of the properties in Sy.No.88/1A1 of Kuttibi and her children being a valid and legal possession has not been established since title or a valid possession does not merely go by the assessments for the plantation tax. The area **MFA (F) No.80/2014** ``` - 28 - ``` under cultivation of cardamom was also found to be about 14 acres, without the survey number specified; as against the larger extent claimed to be possessed by Kuttibi and her children, which could as well be in the land comprised in Sy.No.88/1A1, which is not the subject of the schedule in the application nor is claimed for exemption by the applicants. 20. We conclude, there is absolutely no reason to find the scheduled properties to be one validly possessed and owned by the applicants under Section 8 of the Vesting Act. The definition of ‘owner’ under the Vesting Act, in relation to a private forest, includes a mortgagee, lessee or other person having a right to possession and enjoyment of private forest. The right to possess has to be a legal right, which does not exist in the present case, as we see from the documents produced by the applicants, the specific averments in the application as also the testimony on behalf of the applicants, which was by the Power of Attorney Holder. We find no reason to interfere with the order of the Tribunal which dismissed the application on the ground of the identity, title, possession, cultivation and the land being not in excess of the ceiling limit under the Land Reforms Act having not been established before the Tribunal. In this context, we have to notice that the ceiling proceedings of Kuttibi exempted 140 acres shown in Re.Sy.No.88/1A1 **MFA (F) No.80/2014** ``` - 29 - ``` of Varayal Village which obviously is not the properties now scheduled in 88/1A3 and 1A4. We hence reject the appeal leaving the parties to bear the respective costs. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- ## C.JAYACHANDRAN, JUDGE SMA