MFA (Forest) No.144 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944** ## **MFA (FOREST) NO. 144 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OA 38/1995 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **PETITIONER/S:** - 1 P.J.KURUVILLA (DIED)(Legal Heir) PUTHANKADUPPIL, KANHIRAPPALLI P.O, ANCHILUPPA, KOTTAYAM DISTRICT. - 2 ADDL.A2.ANNIE KURUVILA, AGED 83, W/O.LATE P.J.KURUVILA, CHOTHIRA KUNNEVAL HOUSE, PUTHANANGADI, KOTTAYAM POST, KOTTAYAM DISTRICT - 686 001. - 3 ADDL. A3.JOSEPH KURUVILLA, AGED 61, S/O.LATE P.J.KURUVILA, CHOTHIRA KUNNEVAL HOUSE, PUTHANANGADI, KOTTAYAM POST, KOTTAYAM DISTRICT - 686 001. - 4 ADDL.A4.SHINY KURUVILLA, AGED 59, D/O.LATE P.J.KURUVILA, CHOTHIRA KUNNEVAL HOUSE, PUTHANANGADI, KOTTAYAM POST, KOTTAYAM DISTRICT - 686 001. - 5 ADDL.SABU KURUVILLA, AGED 55, S/O.LATE P.J.KURUVILA, CHOTHIRA KUNNEVAL HOUSE, PUTHANANGADI, KOTTAYAM POST, KOTTAYAM DISTRICT - 686 001. - 6 ADDL.A6.SHERI KURUVILLA, AGED 54, D/O.LATE P.J.KURUVILA, CHOTHIRA KUNNEVAL HOUSE, PUTHANANGADI, KOTTAYAM POST, KOTTAYAM DISTRICT - 686 001. - 7 ADDL.A7. ABRAHAM KURUVILLA, AGED 542 S/O.LATE P.J.KURUVILA, CHOTHIRA KUNNEVAL HOUSE, PUTHANANGADI, KOTTAYAM POST, KOTTAYAM DISTRICT - 686 001. - 8 ADDL.A8.SHEELA KURUVILLA, AGED 48, D/O.LATE P.J.KURUVILA, CHOTHIRA KUNNEVAL HOUSE, PUTHANANGADI, KOTTAYAM POST, KOTTAYAM DISTRICT - 686 001. - 9 ADDL.A9.JOB KURUVILLA, AGED 50, S/O.LATE P.J.KURUVILA, CHOTHIRA KUNNEVAL HOUSE, PUTHANANGADI, KOTTAYAM POST, KOTTAYAM DISTRICT - 686 001. ADDITIONAL APPELLANTS 2 TO 9 ARE IMPLEADED AS THE LEGAL **MFA(Forest) No.144/2012** **2** HEIRS OF DECEASED APPELLANT VIDE ORDER DATED 11/7/2018 IN IA 457/2018. BY ADV M.P.SREEKRISHNAN ## **RESPONDENTS:** - 1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. - 2 THE CUSTODIAN OF VESTED FOREST CUSTODIANS OFFICE OLAVAKKODE, PALAKKAD DISTRICT. BY SPECIAL GOVT.PLEADER(FOREST)SRI.NAGARAJ NARAYANAN THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MFA(Forest) No.144/2012** **3** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------MFA(Forest) No.144 of 2012** **------------------------------------------Dated this 05[th] January, 2023** ## **JUDGMENT** ## **Vinod Chandran, J** The applicant before the Tribunal is aggrieved with the rejection of the declaration sought with respect to 8 acres, out of the total 11 acres in Re. Survey No. 1186 of Vellarimala Village of Vythiri Taluk of Wayanad District. The applicant claimed that the scheduled land is not a private forest and if found otherwise he is entitled to exemption under S.3(2)&(3) of the Kerala Private Forest(Vesting and Assignment) Act, 1971 (for brevity, “the Vesting Act”). One Malayalam Plantations owned a large extent of land, a portion of which was agreed to be assigned to one Dominic. Two brothers Cheriyan Thomas and Jacob Thomas, on being nominated by Dominic, purchased, respectively 26.72 and 26 acres of lands from Malayalam Plantations. The said land was purchased with the intention of cultivating it with cardamom and other plants, which was carried out by the end of January 1971. The applicant herein purchased 9 acres from Cheriyan Thomas in 1993 and another 2 acres from the assignee of Jacob Thomas. The applicant was in possession of 11 acres of **MFA(Forest) No.144/2012** **4** property which was asserted to be exempted under the Vesting Act. It is also contended that in the year 1995 the forest officials destroyed the cardamom plants in the scheduled property and that there was no survey or demarcation of the same as vested forest. 2. The respondent State asserted that the disputed land is a private forest comprised in Re.Survey No. 1186 of Vellarimala village (Old Muppainad Village ) which is included as VFC item No.22 in notification dated 21.03.1990. The applicant along with others were in possession of 12.720 hectares in the very same survey number which was a developed land and hence excluded from vesting. The present land on which exemption from vesting is claimed has been encroached illegally by the applicant; was the defence. 3. The Tribunal considered the issue on a remand made in MFA No. 69/2001. The limited remand was to consider the claim of exemption under S.3(3) of the Act. The Tribunal found after appreciation of the evidence led, that there was no intention to cultivate discernible from the circumstances and the requirement of proof of the owner not holding lands in excess of the ceiling limit under the Kerala Land Reforms Act was not proved. 4. We heard Sri. M.P Sreekrishnan, learned Counsel appearing for the appellant (applicant) and learned Special Government **MFA(Forest) No.144/2012** **5** Pleader (Forest) for the State. 5. Earlier on, the Tribunal rejected the application with respect to 8 acres confining the declaration to 3 acres, when the applicant approached this Court. By judgment dated 8.2.2008 in MFA No. 69/2001 a Division Bench of this Court referring to _**State of Kerala v. Pullangod Rubber and Produce Co.Ltd. 1999 (3) KLT 334 (SC)**_ and _**Joseph v. State of Kerala 2007 (3) KLT 144 (SC)**_ directed the Tribunal to consider the question whether the land is entitled to be exempted under S.3(3). 6. _**Pullangod Rubber and Produced Co. Ltd**_ (supra) held that if, except a small portion, the balance lands held by an owner was cultivated, there is a presumption that there was intention to cultivate. _**Joseph**_ (supra) held that the intention to cultivate can be gathered from the attendant circumstances, both previous and subsequent to the appointed day. The Division Bench ordering remand, found that cultivation of part of the land manifested the intention to cultivate the entire land purchased and also observed that it was completely cultivated by 1974. However on going through the evidence led, Exts.A1 to A32 there is nothing indicating a cultivation of entire lands by 1974. In fact, the documents based on which such a contention was taken, by the applicant, were Ext.s A12 to A15. Ext.A12 is a registration of cardamom **MFA(Forest) No.144/2012** **6** estate obtained by the applicant, obviously after the purchase in 1993 and 1994 evidenced by Exts.A1 and A2. Ext A13 is a certificate issued by the Village Officer, Vellarimala which is for the purpose of producing before the Federal Bank Kalpetta. Though there is a statement therein, that the above land will not come under the category of vested forest, the Tahsildar is not competent to certify the same. The said document is also dated 14.11.1994. Ext.A14 again is the provisional assessment of plantation tax under S.8 of the Plantation Tax Act with respect to 11 acres in Sy.No.1186 of Vellarimala in which cardamom is cultivated. Ext.A15 is also the final assessment for the year 1994-95. 7. In fact the documents only prove the cultivation in the year 1994, not of the whole lands. In any event, this cannot be taken as the subsequent circumstance, for finding an intention as on the appointed day; which is as far back as on 10.05.1971. True if it were in 1974, especially when the predecessor in interest took into possession the lands purchased by him in 1970; there is a valid inference possible of an intention as on the appointed day in the year 1971, if the entire 11 acres is planted with cardamom or at least a major portion, within 1974. The evidence however is to the effect that there was a plantation as on 1994 after purchase by the present applicant. In this context we have to observe that there was nothing stated by the owner in possession as on **MFA(Forest) No.144/2012** **7** the appointed day, who was examined as PW3, on remand, of his obtaining a cardamom registration when he was in possession of the said land. 8. To enable exemption under S.3(3) of the Vesting Act there are three requirements; the property having been held under a registered document, there being an intention to cultivate on the owner and the owner not holding lands in excess of the ceiling limit under the Kerala Land Reforms Act. PW3 was the vendor of the applicant who held the property as on the appointed day under the Vesting Act. He deposed to the effect that he purchased the property in 1970 for the purpose of cultivating cardamom and commenced the cultivation in 1970 and the entire land was cultivated within two months. He also deposed that there was a cardamom plantation in the adjacent property belonging to his brother Jacob Thomas. 9. Admittedly the adjacent property, belonging to the daughter-in -law of the applicant was exempted in the earlier round of litigation. We looked at the common order of the Tribunal, available in the records, dated 06.09.2000. OA 38/95 was with respect to the application from which the instant appeal arise and OA 40/95 was with respect to the daughter-in-law of the applicant in the other case. The daughter-in-law of the present applicant purchased 8 acres held by her, **MFA(Forest) No.144/2012** **8** from Jacob Tomas the brother of Cheriyan Thomas. The exemption granted to the said property cannot enure to the benefit of the applicant herein since his purchase was from the other brother, Cheriyan Thomas. The purchase of the property by the brothers were two distinct purchases and not a joint one. Merely because Jacob Thomas cultivated his property with cardamom, it cannot be assumed that Cheriyan Thomas also cultivated the property with cardamom. 10. The commission report, as noticed by the Division Bench which ordered remand, separated the 11 acres scheduled in the application as two portions: one in blue shade having an extent of 8 acres and the other in yellow shade having an extent of 2.50 acres. The 2.50 acres in yellow shade was found to be not a vested forest, however with respect to the 8 acres, declaration was declined. But for the interested testimony of PW3 there is nothing substantive to indicate the property having been cultivated as on the appointed day. In fact the specific assertion by PW3 before the Tribunal was that the entire property was cultivated within 2 months from December, 1970. There was no evidence to substantiate the oral testimony, by way of proof of actual cultivation, a registration obtained of cardamom plantation, tax paid on the plantation produce or so on and so forth. 11. The commission report filed in the year 1998 indicates **MFA(Forest) No.144/2012** **9** that the exempted area having an extent of 2.50 acres (demarcation in light yellow in Ext.C4 plan ) was a well maintained cardamom plantation. But in the disputed area there are only some cardamom plants here and there. The cardamom plants in the disputed area were also found to have only young shoots with age of 2 to 3 years. It was also reported there are several large trees located throughout the entire property including the disputed one, which were identified as forest species trees. Though it was contended that they were shade trees maintained for the cardamom plants, the Commissioner reported them to be innumerable in number. It is difficult from the commission report to find any intention to cultivate. An extent of 2.50 acres can be said to have been cultivated prior to the appointed day, but that does not comprise a major portion of the 11 acres held by the applicant. Of course, as on the appointed day under the Vesting Act, the land as held by Cherian Thomas, 26.72 acres of which 9 acres were purchased by the applicant herein and the other two acres was purchased from the other brother, Jacob Thomas, whose properties were cultivated and were entitled to exemption in the application filed by the daughter-in-law of the applicant. There is hence no substantive evidence to indicate cultivation or intention so to do, by Cherian Thomas, in his holding. 12. If we accept the commission report the plants found in the **MFA(Forest) No.144/2012** **10** undisputed portion were of 25 to 30 years of age. The 2.5 acres out of 11 acres cannot raise an inference of intention to cultivate, especially when the balance lands were left barren and remained as such at the time of inspection of the Commissioner. Pertinent also is the fact that though the remand was for the purpose of considering the exemption under S.3(3); PW3 the owner as on the appointed day examined after remand spoke of the entire land being cultivated with cardamom as on February 1971. We are unable to find any infirmity with the order of the Tribunal 13. The Tribunal also found that the applicant failed to establish that the owner of the land, held lands within the ceiling limit under the Kerala Land Reforms Act. In cross-examination, PW3 admitted that he was habitually purchasing and selling lands and that in the instant locality he owns only 26.72 acres purchased from Malayalam Plantations. The applicant also said that he ordinarily resides in Ernakulam where he has a residential property. It was the burden of the applicant to prove that the owner as on the appointed day held lands within the ceiling limits; including that on which exemption is claimed under the Vesting Act. There is absolutely no proof offered for the same. 14. On the above reasoning we find that though the applicant is a _bonafide_ purchaser holding land under a registered deed, with respect to 8 acres on which a declaration under s.3(2)& (3) was declined, **MFA(Forest) No.144/2012** **11** for reason of it neither being cultivated nor an intention to cultivate discernible, as on the appointed day under the Vesting Act. The applicant also failed to prove the requirement of the owner having held lands within the ceiling limit under the Kerala Land Reforms Act. The appeal would stand dismissed, leaving the parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** jma