## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**MONDAY, THE 17TH DAY OF SEPTEMBER 2012/26TH BHADRA 1934**
## **SA.No. 898 of 2002 (F)**
**---------------------AS.280/1999 of DISTRICT COURT,KOZHIKODE OS.106/1996 of I ADDL.SUB COURT, KOZHIKODE**
**......**
## **APPELLANT(S)/RESPONDENT/PLAINTIFF:**
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**MARYKUTTY JOSEPH, W/O. JOSEPH, MYLLALAMPARA, KAITHAPOYIL P.O., PUDUPPADI AMSOM, DESOM OF KOZHIKODE TALUK.**
**BY ADV. SRI. P.RAVINDRAN SRI.ANIL SIVARAMAN**
## **RESPONDENT(S)/APPELLANTS/DEFENDANTS:**
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**1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOZHIKODE, NEDUNGOTTOR AMSOM, VENGERI VILLAGE OF KOZHIKODE TALUK.**
**2. DISTRICT FOREST OFFICER, "VANASREE"**
- **MATHOTTAM,BEYPORE VILLAGE, KOZHIKODE TALUK.**
**3. THE FOREST RANGE OFFICER, THAMARASSERY.**
**BY SPL.GOVERNMENT PLEADER(FOREST)SRI.M.P.MADHAVANKUTTY**
**THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Kss**
## **K. VINOD CHANDRAN, J**
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**Dated this the 17[th] day of September, 2012**
## **J U D G M E N T**
Appellant claimed to have acquired 4.40 acres of land in a court sale, pursuant to a decree obtained by one Vijaya Bank against Indian Timber Plywood Corporation Limited. In the plaint, it was contended that, the Judgment Debtor was in possession of 502 acres, out of which 4.40 acres were purchased in court sale by the appellant herein. The issue allegedly arose in the year 1996 when Forest Officials tresspassed into the property; which according to the appellant was in the absolute possession, ownership and enjoyment of the appellant. The appellant was the plaintiff, who filed a suit for a perpetual injunction against the State and its officials to restrain them from tresspassing into 'B' schedule property, the extent of which has not been clearly specified in the claim, but, which is said to be comprised in 4.40 acres described as plaint 'A' schedule.
2. Trial court granted the relief claimed by the plaintiff on the ground that the plaintiff had proved possession, though
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not the title, and also on the premise that the written statement of the forest department conceded that 4.40 acres acquired by the plaintiff was outside the vested forest notified as per VFC item No. 109 in Re survey No. 1/1. On appeal, however, the first appellate court reversed the said findings for the reason of the plaintiff having not proved neither extent of property purchased by her nor the identity. In any event, it was held by the appellate court that if the contention of the plaintiff was that any property possessed by her was not covered by a notification issued under the Kerala Private Forest(Vesting and Assignment) Act (hereinafter referred to as 'Act 26 of 1971') or not liable to be vested under Section 3(1) of the Act; the proper procedure would have been to approach the Forest Tribunal under Section 8; considering the specific bar provided under Section 13 of the Act.
3. The plaintiff is in appeal before this Court raising substantial questions of law with respect to ouster of jurisdiction found by the first appellate court being bad in the facts and circumstances of the case and assailing such findings on jurisdiction in the context of there being no dispute to title. The learned counsel appearing for the
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appellant herein would contend that the injunction granted by the trial court would not have prejudiced the State at all, in so far as, they could have taken steps, if, in fact, there was any vesting of property possessed by the plaintiff and then the plaintiff would have the cause of action to approach the Forest Tribunal.
4. The learned Government Pleader would contend that Section3(1) postulates vesting in the Government without any steps being taken by the Government. The only relief that was available to the appellant was to approach the Tribunal. It is the State's submission that the contention stands fortified by two Full Bench decisions of this Court in **State of Kerala v. Chandralekha(1995(2)KLT 152) and Bhargavi Amma v. State of Kerala (1997(2)KLT 513)** . It is also contended that there was no concession in the written statement that 4.40 acres stood outside the vested forest, as notified in VFC 109, and in any event, no officer is competent to make such a concession against the statute.
5. The trial court, as noticed above, went on the purported admission of the defendants that the plaintiff is in possession of 4.40 acres of land and also relying on the
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Commissioner having noticed an extent of 4.40 acres of land in possession of the plaintiff. The specific contention in the written statement filed by the 3[rd] defendant, being the Forest Range Officer, is that the area referred to by the plaintiff as shown in the plaint lies in VFC Item No. 109 in sy. No.1/1 notified by custodian of vested forests. The plaintiff contended in paragraph 5 and 6 of the plaint that an adjacent property was sold in court auction negativing the claim of the forest department. The plaintiff also had applied for and obtained registration from the Rubber Board for the plaint schedule property having an extent of 4.40 acres as also paid basic tax for the property. Countering the said plea, it was contended by the State that if at all the claim of the plaintiff could be sustained, then the property should be outside the vested forest notified as VFC Item No.109.
6. None of the materials placed before the court below would substantiate the pleadings. The Commissioner's finding was also based only on the land being pointed out by the plaintiff. The first appellate Court in fact had found that the only document produced by the plaintiff was Ext.A 1 which is a copy of the plaint attached to the delivery account by which
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the properties were allegedly taken delivery in execution of the decree. The delivery account and the sale certificate was not produced. The possession of the plaintiff also has not been proved by any material. Ext.A2 series were receipts obtained for payments of land revenue in 1994 and 1996. The first appellate Court also took note of the fact that it was the case of the defendants that the plaintiff had attempted to tresspass into the property notified under VFC item No.109. It was in this context that the first appellate court reversed the judgment and decree passed by the trial court, on the finding that the remedy of the plaintiff was to approach the Forest Tribunal under Section 8 of the Act 26 of 1971.
7. Looking at the provisions of the Act 26 of 1971, it is evident that sub section (1) of Section 3 contemplates vesting as on the appointed day; which is notified as 10.5.1971. Exemptions are provided under Subsections(2) and (3), which are not claimed by the plaintiff. Section 8 provides for settlement of disputes as to
a. any land is a private forest or not; or
b. any private forest or portion thereof has vested in the Government or not,
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on the Forest Tribunal constituted under the State enactment. 8. **Chandralekha** 's case considered the question as to on whom the burden is placed to establish that any property is not a forest liable to be vested in the Government under the Act. A Full Bench of this Court categorically found that the person who claims title over the property which is claimed to be a private forest or that it has not vested under the vesting Act, has the burden to establish the case. **Bhargavi Amma** 's case considered the question as to when a person is entitled to approach the Tribunal under the Act. It was held that the existence of a dispute is not to be found from whether there was or was not a notification, but from the allegations in the petition, that reveal the existence of a dispute. It also found that the Tribunal's jurisdiction, as has been conferred under the Act, is comprehensive and admits of no restriction in regard to disputes coming under Subsection(2) and (3) of section 3 which are comprehended by clauses 'a' and 'b' of Section 8; whether it pertained to notified or non notified properties. In fact, the notification was one issued in the year 1977. The plaintiff also appears to have come into the possession of the land some time during that period. The
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vesting being automatic under Act 26 of 1971, the remedy of the plaintiff was to approach the Forest Tribunal under Section 8, especially in view of the bar of jurisdiction of Civil Court provided under Section 13. The attempt of the plaintiff , in filing a suit for injunction against the officials of the State, was only to circumvent the provisions of the Act. The questions of law raised by the appellant has to be necessarily answered against her. In the facts and circumstances of the case, the ouster of the jurisdiction of civil court found by the first appellate court is unassailable. The other questions of law on the assumption that there is no dispute in title; cannot at all be pressed by the appellant in view of the clear finding by the first appellate court as also the lower court that the plaintiff has not established her title.
The second appeal is hence dismissed with costs throughout.
Sd/
## **(K. VINOD CHANDRAN, JUDGE)**
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