M.F.A (Forest) No.131/2012; M.F.A (Forest) No.133/2012; M.F.A (Forest) No.141/2012; M.F.A (Forest) No.1/2013 (Consolidated judgment of the High Court of Kerala, Ernakulam)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA,** ## **1944** ## **MFA (FOREST) NO.131 OF 2012** **AGAINST THE ORDER DATED 13.03.2002 IN O.A.NO.43/1990 OF THE** **FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT:** **KATTUMUNDA ABOO, S/O.MAMMUKUTTY, P.O. ERANHIMANGALAM, VIA-NILAMBUR, ERNAD TALUK, MALAPPURAM DISTRICT.** **BY ADVS.** **SRI.T.SETHUMADHAVAN (SR.) SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE CUSTODIAN OF NATIONALISED FORESTS, KOZHIKODE,** **BY ADV.SRI.NAGARAJ NARAYANAN, SPL.G.P. (FOREST)** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 15.12.2022, ALONG WITH MFA (FOREST) NOS.133/2012, 141/2012 & 1/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944** **MFA (FOREST) NO.133 OF 2012** **AGAINST THE ORDER DATED 13.03.2002 IN O.A.NO.41/1990 OF THE** **FOREST TRIBUNAL, KOZHIKODE** **APPELLANT:** **KATTUMUNDA MUHAMMED, S/O.MAMMUKUTTY, P.O. ERANHIMANGALAM, VIA-NILAMBUR, ERNAD TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-01.** - **2 THE CUSTODIAN OF NATIONALISED FOREST TRIVANDRUM - 695 001.** **BY ADV.SRI.NAGARAJ NARAYANAN, SPL.G.P. (FOREST)** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 15.12.2022, ALONG WITH MFA (FOREST) NOS.131/2012, 141/2012 & 1/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 15[TH] DAY OF DECEMBER 2022/24TH AGRAHAYANA, 1944** **MFA (FOREST) NO.141 OF 2012 AGAINST THE ORDER DATED 13.03.2002 IN O.A.NO.40/1990 OF THE FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS:** - **1 NADUVATHKALATHIL MOHAMMED, S/O.KOYAKKUTTY [DIED]** - **2 NALAKATH KADHEEJA, W/O.NALAKATH MUHAMMED @ BAPPU, R/AT NILAMBUR AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. (IMPLEADED AND AMENDED AS PER ORDER IN I.A.NO.48/11 DATED 14.03.2011)** **BY ADVS.** **SRI.T.SETHUMADHAVAN (SR.) SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-01.** - **2 THE CUSTODIAN OF NATIONALISED FORESTS TRIVANDRUM-695 001.** **BY ADV.SRI.NAGARAJ NARAYANAN, SPL.G.P. (FOREST)** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 15.12.2022, ALONG WITH MFA (FOREST) NOS.131/2012, 133/2012 & 1/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013** **4** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA,** **1944** **MFA (FOREST) NO.1 OF 2013** **AGAINST THE ORDER DATED 13.03.2002 IN O.A.NO.42/1990 OF THE FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT:** **ERANHIKKAL MOHAMMED, S/O.KUTTIALI, P.O.ERANHIMANGAD, VIA- NILAMBUR, ERNAD TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SRI.T.SETHUMADHAVAN (SR.) SMT.VANDANA MENON** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE CUSTODIAN OF NATIONALISED FORESTS TRIVANDRUM.** **BY ADV.SRI.NAGARAJ NARAYANAN, SPL.G.P. (FOREST)** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 15.12.2022, ALONG WITH MFA (FOREST) NOS.131/2012, 133/2012 & 1/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 5** K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------------M.F.A (Forest) No.131, 133 & 141 of 2012 & MFA 1 of 2013 --------------------------------------------------Dated this the 15[th] December, 2022 ## JUDGMENT ## K.Vinod Chandran, J. The four appeals arise from a common order of the Forest Tribunal under S.8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971, (for brevity, the Vesting Act) wherein, though the applicants are different, the contentions are very similar and the properties lie contiguous. The extents of property on which exclusion was claimed, on the ground of those existing as rubber plantations, are 5.50 acres in O.A.No.40/1990 (MFA 141/2012), 5.75 acres in O.A.No. 41/1990 (MFA 133/2012), 6.50 acres in O.A.No.42/1990 (MFA 1/2013) and 6.25 acres in O.A.No.43/1990 (MFA 131/2012); totaling 24 acres, which as per Ext.C1 plan, on the field, lie as a single property. The properties are comprised in Sy.No.842/1B Part, of Chunkathara Village coming under the Forest Sub Division, Nilambur. 2. All the applicants contended that they obtained possession of the properties from one Ramakrishna Iyer, under whom they were **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 6** employed in various capacities. Later, one Ayamutti Haji and Nalakath Veeran, purchased the properties in 1963, who partitioned the same and the properties now possessed by the applicants came to the share of Nalakath Veeran. The applicants then atoned to Nalakath Veeran and continued paying rent to him, on which land, later, purchase certificates were obtained under the Kerala Land Reforms Act. It was also asserted that all the applicants have been cultivating rubber in the properties from 1966 onwards, subsequent to which, applications were filed before the Rubber Board; the registration certificates of which were received much later. Rent having been paid to Nalakath Veeran, purchase having been effected under the Land Reforms Act, applications having been made and registration obtained from the Rubber Board existence of plantation is established beyond doubt as on the appointed day and the separate plots are entitled to be excluded under Section 2(f)(1)(i)(C) of the Vesting Act, was the contention. 3. The respondent State however contended that the property was lying as a vested forest under the Vesting Act, which enactment was held to be unconstitutional by the High Court; later reversed by the Hon'ble Supreme Court, upholding it. In the interregnum, Nalakath Veeran obtained permission to remove the trees under the **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013** **7** Timber Transit Rules, paid the amounts due to the Forest Department and cleared the lands to cultivate rubber, subsequent to the appointed day. The rubber plantation existing in the subject land was one which was cultivated for the first time after the appointed day, was the contention. 4. The Tribunal found that the applicants were attempting to play a fraud on the Tribunal. The documents produced as rent receipts were found to be typed documents issued by one Govindan Nair, the Manager of Nalakath Veeran; the veracity of which cannot be assumed. Exts. B1 to B3 and B5 to B7 marked by the respondents before the Tribunal were found to have established that Nalakath Veeran had sought for permission to clear timber from 16 acres of the north eastern corner of Re.Sy.No.842/1 of Chunkathara Village, pursuant to which such clearance was also carried out after the judgment of this Court holding the Vesting Act to be unconstitutional. Ext.C1 report also shows that the properties in the possession of the applicants marked as (A) to (D) are existing in the north eastern side of RS. No.842/1; evidently the very same property from which Nalakath Veeran cleared the timber. It was held that the case set up by the applicants that they had been cultivating rubber from the year 1966, hence is an utter falsehood. **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 8** 5. The title was found to be specious in so far as the applicants having not shown how their employer, one Ramakrishna Iyer, got right over the property nor proved the assignment to Ayamutti and Veeran as also how the possession was conceded to the applicants. The receipts issued were found to be printed receipts of the year 1964, 1965, 1966 & 1968, in the same handwriting as filled up in the same fashion making it very suspicious. The purchase certificates issued were held to be not binding on the Forest Tribunal or the State as held in _Thressiamma v. State of Kerala [2002 (1) KLT 361]._ The application before the Rubber Board though asserted to be of the year 1966, the Tribunal found that the year of plantation clearly written as 1968, was tampered with by scoring off the last figure and correcting it as 1966. The registration was applied for, far later in 1974; making it highly improbable, resulting in an inference that they are cooked up documents. All the applications were attested by Govindan Nair, who had also signed the rent receipts, as the authorized agents of Nalakath Veeran. Looking at the commission report, it was found that there is no clear demarcation of boundaries between the properties on which title is claimed, by each of the applicants. The girth of the rubber trees noticed by the Commissioner in the report was found to be only establishing the age of such trees to be between 3 to 4 years and not **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 9** between 5 to 7 years as claimed by the Commissioner. 6. The facts as disclosed in a memorandum prepared by an earlier incumbent in the Forest Tribunal, as revealed from the order of the High Court was noticed; in which the trees found in the property, were opined to have age of 20 years. The memorandum referred to, in the order of the High Court, was not available in the records of the Tribunal nor was it possible of reconstruction, since the copies were not available with either the applicants or the State. The memorandum was also one prepared in the year 1987, after 16 years of the coming into force of the Vesting Act. The Tribunal refused to place any reliance on the observations of the earlier incumbent in the Forest Tribunal; rightly so according to us. The totality of the circumstances, according to the Tribunal only points to Nalakath Veeran having spear-headed the attempt to absolve the property from vesting, by clearing the same off the forest trees and planting rubber, after the enactment was found to be unconstitutional; the resultant plantation having come up only in the interregnum when the appeal filed by the State was pending before the Hon'ble Supreme Court. The age of the rubber trees as discernible from the girth of the said trees noticed by the Commissioner also supports the above contention of the State. It was hence the declaration sought for, was **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 10** declined by the Forest Tribunal. 7. Learned Sr. Counsel Sri. T.Sethumadhavan, argued that the conclusive title, as arising from a purchase certificate and the exemption available to properties on which such certificates have been issued by the Land Tribunal under the Land Reforms Act cannot at all be disputed by the State. It was a machinery created by the State itself, which, after conducting due enquiry, issued such certificates, the conclusive nature of which , at least to prove title, follows form S.72K of the Land Reforms Act. It is pointed out that the Hon'ble Supreme Court in _State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260]_ has categorically found that the conclusive nature of the purchase certificate issued under S.72K applies squarely to the proceedings under the Vesting Act and the exemption in such circumstances is automatic. It is pointed out that the Tribunal completely erred and misguided itself in finding fraud, when there was no such pleading. Ext.B-series of documents produced by the respondent State further establishes the plantation, as revealed from the recitals; but not at all any fraud played. The receipts of rent payment, issued by Nalakath Veeran and his authorized agent and the applications filed before the Rubber Board were never challenged by the respondent State. The Tribunal's finding regarding the same and **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 11** the doubts raised are unwarranted and revealed the prejudged mind of the Tribunal. The Tribunal had, without any material, doubted the age noticed by the Commissioner and merely from 'own experience' assumed that the girth of the trees would only reveal it to be less than 4 years of age. The Tribunal clearly misdirected itself and the applicants are entitled to exclusion from the purview of private forests governed by the Madras Preservation of Private Forest Act, 1949, (for brevity the MPPF Act) on the ground of the properties being principally cultivated with rubber; thus absolved of vesting under the Vesting Act. 8. Learned Special Government Pleader (Forest), Sri. Nagaraj Narayanan, would at the outset, contest the dictum in _Mohammed Basheer (supra)_ . According to him, the decision of the Hon'ble Supreme Court is _per incurium_ for reason of the same going against the dictum in _State of Kerala v. Popular Estates [(2004) 12 SCC 434]_ and _Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221], b_ oth of which are, of coequal benches. In the said earlier decisions, the Hon'ble Supreme Court has held that the proceedings under Chapter III of the Land Reforms Act, with respect to ceiling limits, would only be a piece of evidence in the proceedings under the Vesting Act. This applies equally to the purchase certificates issued under Chapter II of **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 12** the Land Reforms Act. In fact, if it is found that the property is a private forest, the purchase certificate issued under the Land Reforms Act becomes _non est_ since private forests are exempted under S.3(1) (vii) of the Land Reforms Act. Further it is pointed out that S.72k, if at all, can only be a conclusive proof of title and not of cultivation. Land Reforms Act enables vesting of all properties in which there is a fixity of tenure and permits purchase certificates to be issued to the cultivating tenant. The cultivating tenant as defined under the Land Reforms Act, S.2(8) is a tenant in actual possession and entitled to cultivate the land comprised in his holding . Under the Land Reforms Act, the only requirements are possession and the right to cultivate, while for claiming exclusion or exemption under the Vesting Act, there should be clear proof of cultivation, that too principal cultivation as on the appointed day under the Vesting Act. It is pointed out that the findings of the Tribunal about a concerted attempt to defraud the State has to be upheld looking at the documents produced by the respondent, on which no dispute is raised by the applicants. They have been produced from the custody of the official respondents and it clearly brings out the dubious attempt to absolve the properties from vesting, by planting rubber, after clear felling of trees, subsequent to the enactment being found **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 13** unconstitutional. The Tribunal's finding regarding the rent receipts, the applications before the Rubber Board and the age of the trees as revealed from the girth noticed by the Commissioner, cannot at all be faulted. The order has to be upheld and the appeals dismissed, concludes the learned Special Government Pleader. 9. We will first deal with the question of title, without which there can be no declaration claimed under the Vesting Act, either of exclusion or exemption. The title can very well be one obtained after the appointed day under the Vesting Act, as held in _Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461)_ ; but the cultivation to claim exclusion under S.2(f)(1)(i)(A) to (D) and exemption under S.3(2) or (3) has to be as on the appointed day. In the present case, the applicants have produced the purchase certificates issued, which were marked as Exts.A4, A8, A13 and A15, all dated 19.2.1975. In this context, we also have to observe that the purchase certificates are issued after the appointed day, as can be seen from the Land Reforms Act. But the claim for purchase of the properties, held as a tenant, arise from their possession as on 1.4.1964 under the Land Reforms Act. Hence, there can be no question of title of the properties, which definitely is on the applicants herein, who are persons issued with purchase certificates by the Land Tribunal constituted under the **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 14** Land Reforms Act. S.72K clearly declares the conclusive nature of the title, as arising from the purchase certificate regarding the properties covered under those certificates. 10. Even without reliance on _Mohammed Basheer (supra)_ , we can safely find the ownership as required under the Vesting Act; being a rightful and valid possession, to be on the applicants before the Tribunal in all the four OAs. Ext.A1 is the printed receipt issued by Nalakath Veeran to the applicant in O.A.No. 41/1990 for the rent paid with respect to 5.75 acres in Re.Sy No.842/1. A5, A6 and A7 are similar receipts issued to the applicant in O.A.No. 40/1990, who is now expired and whose wife is the appellant in the appeal. A10 to A12 are also receipts issued in the name of the applicant in O.A.No.42/1990 and A16 to A19 are, from their recitals, issued to the applicant in O.A 43/1990. We find no reason to doubt the said receipts, some of which are issued by Nalakth Veeran itself (A1, A10 to 12 & A16 to 18) and some others issued for and on behalf of Nalakath Veeran (A2, A5 to 7). Above all, Ext.A4, A8, A13 and A15, purchase certificates issued by the Land Tribunal, Nilambur, in favour of the respective applicants was conclusive proof of title. 11. _Mohammed Basheer(supra)_ in addition held that when a purchase certificate is issued under the Land Reforms Act, there is **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013** **15** automatic exemption under the Vesting Act, presumably on the finding that it conclusively establishes not only title but also cultivation, the last of which is the requirement for absolving a land from vesting under the Vesting Act. It has to be observed that both _Kunjanam Antony_ and _Popular Estates (both supra)_ were considering the ceiling proceedings by a Taluk Land Board under Chapter III of the Land Reforms Act. The coequal bench decision in _Mohammed Basheer_ noticed _Kunjanam Antony_ and distinguished it, and the State cannot now take a different stand regarding the exemption, which flows from production of a purchase certificate under the Land Reforms Act. We have to find the properties to be automatically excluded under the Vesting Act. Despite such findings, we also have to notice that in the present case, the cultivation also is attempted to be established unequivocally by the applicants. PWs 1 to 4 were the applicants in the four OAs who were examined before the Tribunal. In addition to the above referred documents, they marked the applications for registration before the Rubber Board dated 1.4.1974 as A3, A9, A14 and A20. All the above applications show a correction; to 1966. Even if it is assumed that the applications made in 1974 spoke of a plantation existing from 1968, then also as on the appointed day under the Vesting Act, it makes probable the existence **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 16** of a plantation, as planted in 1968. 12. Now we come to the commission report marked Ext.C2 which clearly indicates that the petition scheduled properties are on the north eastern extent of Re.Sy.No. 842/1 of Chunkathara Village, the total of which properties lying contiguously comes to 24 acres, marked as A, B, C, and D in Ext.C1 plan. The boundaries are noted as; on the north and east - Chaliyar river, with a wire fencing running along the said boundaries to some extent, on the west - a _thodu_ , separating the properties from the land lying to its west owned by one Achuthan Nair, on the south - a wide bund made of stone and mud. The Tribunal disapproved the statement of the Commissioner that there are boundary lines separating the different plots in the application, the nature of which had not been specified. We find that the boundaries between the separate plots are not of any relevance, especially when no dispute on such boundaries have been raised by any of the applicants and the Tribunal being incompetent to decide such boundary disputes, if at all raised. The Tribunal is only adjudicating the dispute as to whether the four properties scheduled in each of the applications are absolved from vesting under the Vesting Act, on the specific ground of rubber plantation having existed in the property as on 10.5.1971; which enables it to be **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 17** excluded from the definition of private forest under S.2(f)(1)(i), by virtue of the principal cultivation of rubber, as is required under Clause (B). The girth of the rubber trees are said to be ranging between 15 ½ inches to 19 ½ inches. The applicants have informed the Commissioner that the trees were planted between 1967-68 and the smaller ones are those replanted when the originally planted tress got destroyed. The Commissioner also noticed bare rubber plants more or less having the same girth of the trees first planted. There was also a fire which destroyed certain trees, according to the applicants. The Tribunal assessed the age of the trees to be 5 to 7 years. Some other random trees like _maruthu_ , _chuni_ and _ooly_ along with a dozen teak trees aged about 6 to 8 years were seen scattered in the property. There were only very few teak tree stumps in the entire area and it was the assertion of the applicants that there never was a teak plantation in the area. 13. We cannot but observe that the Tribunal disbelieved the Commissioner without any valid reasoning. The statement that _“from experience it can be found that the rubber having a normal growth and normal care and protection may have girth of about 20 inches when it becomes 2 or 3 years (sic)”_ does not indicate on whose experience the above authoritative statement regarding the girth of **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 18** rubber trees is made. If that is accepted, then definitely the trees could not have age between 3 to 4 years, as found by the Tribunal. We have to notice that the inspection in the above case was carried out on 28.3.1976 and the report filed on 10.4.1976, quite proximate to the appointed day. We say proximate since often the applications are filed much later under the Vesting Act and the commissions taken out still farther from the appointed day. The Commissioner had specifically noticed that the trees were having age of 5 to 7 years which would probablise the plantation existing as on 10.5.1971, the appointed day under the Vesting Act. The officials of the respondent State were present at the time of the Commissioner's inspection but there is no objection filed from the commission report regarding the age. We also see from Order 26 Rule 10 (2) of the Code of Civil Procedure, that the report of the Commissioner shall be evidence in a proceeding and shall form part of the record. An examination of the Commissioner is required only if the Court, or any of the parties, with the permission of the Court request for such examination as held in _Misrilal Ramratan & Ors Mansukhlal & Ors v Shaik Fathimal (Dead) by Lrs & Ors 1995 Supp (4) SCC 600_ . We also notice sub-rule (3) of Order 26 Rule 10, wherein, the Court is empowered to direct such further enquiry, if for any reason the Court is dissatisfied with **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 19** the proceedings of the Commissioner. In the present case, the respondent has not objected to the commission report and the court has not recorded any ground for dissatisfaction. The findings of the Tribunal without any reasoning; thus completely rubbishing the statements made by the Commissioner, cannot be accepted. In the totality of the circumstances, also considering the documentary evidence, the testimonies and the approximate age of the rubber trees found in the property, we are convinced that there is a rubber plantation as on the appointed day. 14. Now we come to the findings of the Tribunal regarding the fraud attempted by the applicants, which, according to the Tribunal, was spearheaded by Nalakath Veeran as revealed from Ext.B - series of documents produced by the respondents. Ext.B1 is an application made by Nalakath Veeran to the Special Divisional Forest Officer, Nilambur. The specific recital in that indicates that the applicant sought for transportation of timber lying in his plantation of rubber, arecanut and coconut, under the Timber Transit Rules. He asserts that the property was clear-felled and there are sprouts from the teak stumps existing in the property. Ext.B2 is the submission made by the Special Divisional Forest Officer to the District Collector, Malappuram to take appropriate action. Ext. B2 refers to the **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 20** application for registration of property mark, made by Nalakath Veeran, to remove 200 cubic meters of timber, 1500 teak-poles and 4000 bamboos collected from ' _Kulirmavu Potty'._ He brings to the notice of the Collector, that the properties are covered under the Vesting Act, which was declared unconstitutional by the High Court by a decision on 21.06.1972; after which he felled the trees on 22.06.1972, which timber, he is now attempting to remove. However, the Collector replied with Ext.B3 clearly indicating that the applicant had acquired _kanam_ and possession right of the property as per document No.444/1963 of SRO, Vandoor, for which the sanction dated 31.12.1962 of the District Collector was obtained under the MPPF Act. The area, from which the trees were collected, measures 15 acres at the north-eastern corner of R.S.No.842/1 of Chungathara Village; the sketch of which was also enclosed. The District Collector directed the Special DFO to pass appropriate orders on the application for registration of property marks and grant permission under the Timber Transit Rules. We have to pertinently notice that the request was for collection of timber and its transit and not for felling of trees. We cannot comprehend as to how in Ext.B2, the Special DFO presumed that clear felling was carried out, when the application itself indicates removal of timber from the property and **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013** clear felling having been done earlier. The property also contained rubber, arecanut and coconut trees. Ext.B5 & B6 are documents establishing the crime registered by the Special DFO, Nilambur within the Chungathara Range, as Offence No.9/73-74 against Nalakath Veeran. The further proceedings in the crime or the result of such prosecution has not been placed before us. Ext.B7 is an undertaking given for the removal of trees as per order dated 29.01.1973 in O.P.No.5558/1972. We do not think that Ext.B1 to B3 and B5 to B7 establish any fraud played on the Tribunal or the State. We have to notice that even the Forest Department's written statement does not disclose an allegation of fraud. The findings of the Tribunal based on Ext.B-series of documents produced by the respondents cannot be sustained. 15. On the reasoning above, we hold that the Tribunal has misdirected itself in all the aspects considered by it under S.8 of the Vesting Act. The four applicants had asserted their title based on the rent receipts issued by the owner, who conceded possession to them and also the purchase certificates issued under the Land Reforms Act; which we found to be, conclusive proof of the title of the separate plots, held by the different applicants. The principal cultivation of rubber has been established from the documents produced as also the **M.F.A (Forest) No.131,133 & 141 of 2012 & M.F.A.(Forest) No.1 of 2013 22** commission report. The cultivation carried on in the property is also that of rubber, which is one of the crops specified under Clause (B) of S.2(f)(1)(i), enabling exclusion from the definition of private forests under the Vesting Act. We have to notice that even without reliance on _Mohammed Basheer (supra)_ , the exclusion can be found based on the evidence led before the Tribunal. _Mohammed Basheer (supra)_ further makes the declaration under the Vesting Act automatic on properties in which purchase certificates have been granted under the Land Reforms Act. We find no reason to sustain the judgment of the Tribunal and set it aside, declaring the scheduled lands in the separate O.As to be excluded from the definition of private forest under the Vesting Act. The MFAs are allowed, leaving the parties to suffer their respective costs. ## **Sd/-** K.VINOD CHANDRAN, JUDGE ## **Sd/-** ## C.JAYACHANDRAN, JUDGE uu/sp/16/12/2022