MFA (Forest) No.161 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944** **MFA (FOREST) NO.161 OF 2006** **AGAINST THE ORDER DATED 31.01.2003 IN O.A.NO.31/1998 OF THE** **FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM** - **2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT.** - **BY SHRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST)** ## **RESPONDENTS/APPLICANTS:** - **1 GOVINDAN, S/O.KOMBAN, MUKRINKATTIL, KOTTEKKAD AMSOM,, PALAKKAD TALUK.** - **2 SUNDARAN, S/O.KOMBAN, -DO- (DIED)** - **3 ANANDAN (DIED)** - **4 SREENIVASAN, S/O.KOMBAN, MUKRINKATTIL, -DO-** - **5 DEVADASAN (DIED)** - **6 SIVADASN (DIED)** - **7 INDIRA, W/O.LATE DEVADASN, MUKRINKATTIL, KOTTEKKAD AMSOM, PALAKKAD TALUK.** - **8 SULOCHANA, W/O.LATE SIVADASAN, MUKRINKATTIL, KOTTEKKAD AMSOM, PALAKKAD TALUK.** - **9 RAJAMMAL, W/O.LATE ANANDAN, -DO-** - **10 MEENA, D/O.LATE ANANDAN, -DO-** - **11 CHITHRA, D/O.LATE ANANDAN, -DO-** - **12 KUMIDA, D/O.LATE ANANDAN, -DO-** - **13 DILEEPKUMAR, S/O.LATE ANANDAN, -DO-** **M.F.A.(Forest) No.161 of 2006** ## **- 2 -** - ***ADDL.14 PUSHPA, W/O.LATE SUNDARAN, MUKKORAMKADU HOUSE, KOTTEKKAD.P.O., PIN- 678 737.** - ***ADDL.15 RAVEENDRANATHAN, S/O.LATE SUNDARAN, MUKKORAMKADU HOUSE, KOTTEKKAD.P.O., PIN- 678 737.** - ***ADDL.16 BABY, W/O.KRISHNANKUTTY, KULANGARAKALAM, THENKURUCHI.P.O., PINCODE- 678 671.** - ***ADDL..17 MOHANDAS, S/O.LATE SUNDARAN, MUKKORAMKADU HOUSE, KOTTEKKAD.P.O., PIN- 678 737.** *** THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS R14 TO R17 AS PER ORDER DATED 05/12/2022 IN I.A. NO.1/2022.** **BY ADV.SHRI.GANGADAS A.R.** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.(Forest) No.161 of 2006** **- 3 -** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ----------------------------------------------------------M.F.A.(Forest) No.161 of 2006 --------------------------------------------------------Dated this 10[th] March, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The impugned order in the above appeal is after two remands made by this Court in MFAs. The application under S.8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity ‘the Vesting Act’) claimed exemption for 43 Acres in Sy.No.14B2 in Malampuzha Village, Palakkad Taluk. The original application filed as O.A.No.211/2018 before the Forest Tribunal, Palakkad was allowed by order dated 6.1.1983. In MFA56/84 a Division Bench of this Court remanded the matter for affording an opportunity to the applicants to produce the Certificate envisaged under R.4 of the Private Forest [Exemption from Vesting] Rules. At that point the Tribunal appointed a Commissioner, who filed Ext.C1 report and the first applicant was examined as PW1. The Tribunal found that the property is a private forest and that the applicants have title to the property, who do not hold any land in excess of the ceiling limit under the Land Reforms Act. However, finding the applicants to have not proved the intention to cultivate, the application was dismissed by order dated 09.08.1989. **M.F.A.(Forest) No.161 of 2006** **- 4 -** Again MFA No.78 of 1990 was filed before this Court in which the matter was remanded by order dated 04.02.1998. A Division Bench of this Court found that the Tribunal failed to advert to the oral testimony and the other documentary evidence proffered by the applicant to prove the intention to cultivate the land, for which purpose the matter was remanded back. The Tribunal was directed to consider the evidence on record and permit the applicants to produce further evidence and after giving an opportunity of hearing to decide the matter afresh. 2. On remand, the matter was renumbered in the Forest Tribunal, Kozhikkode and again a commission was issued. PWs 1 & 2 were examined and Exts.C2 to C4 were marked. The respondent examined RW1 and Exts.B1 to B3 were marked. The Tribunal looked at the evidence of PW1, which spoke of the said witness having cultivated the land with ginger, koorkka etc. after the land came into his possession. He also spoke of his intention to continue cultivation in the property if the same is restored. It was noticed that in the application the claim was of cultivation of certain areas with black gram and that there existed a plantation of coconut, mangoes etc. in an area of 1 ½ acres. PW3, the 2[nd] applicant, also deposed that there was cultivation of black gram, koorkka, payar etc. and that the coconut trees planted by his father were 30 years old. He also deposed that the entire property **M.F.A.(Forest) No.161 of 2006** ## **- 5 -** was not cultivated due to financial difficulties. According to him, the cultivation was only in 7 acres of property. The Tribunal, based on the testimonies, allowed the application. 3. The order of remand, at the second instance, specifically directed the Tribunal to look at the oral and documentary evidence available to determine whether there was an intention to cultivate. The Tribunal, however, relied only on the oral testimonies; which we have to observe was of the interested applicants. We have to notice _**State of Kerala v. Alexander (1993 KHC 168)**_ in which, it was categorically held by a Division Bench that the intention to cultivate cannot be based on mere statement by the party; definitely an interested testimony and the same has to be proved from the attendant circumstances. In _**Joseph v State of Kerala 2007 (10) SCC 414**_ the Hon'ble SC held that the attendant circumstances can be those circumstances immediately prior to and subsequent to, the Vesting Act. None of these aspects were considered by the Tribunal and hence we proceed to examine the records. 4. Exts.A1 to A15 are the respective deeds executed by the predecessors-in-interest, rent receipt, puncha chits issued, a statement issued by one of the predecessors-in-interest and extract of Village Register. The Tribunal has noticed that Exts.A1 to A15 were destroyed **M.F.A.(Forest) No.161 of 2006** ## **- 6 -** by white ants and despite direction to produce copies for reconstruction, the same were not produced. It is also to be noticed that insofar as title, the property being a private forest and the applicants having no land in excess of the ceiling limit, has already been found by the Tribunal, against which no appeal was filed by the State and no interference was caused to the said findings in the appeals filed by the applicants. Hence we are called upon to look at only the intention to cultivate as on the appointed day by the owners of the land. 5. The application was filed scheduling 43 acres of property in Re.Sy.No.14A2. The testimony of PW1, after speaking about the original entrustment and the devolution of interest, was of the fugitive cultivation carried on after the land came into his possession. It was specifically stated that there were about 100 trees in the property and by Ext.A3, the aforementioned forest and 7 acres garden land was obtained by him. He also speaks of 30 acres being entrusted to a _'kudiyaan'_ (statutory tenant) and later such entrustment having been made of the 7 acres garden land also. The only intention spoken of was the intention to cultivate the land, if the property is resumed to his possession. Exts.A5 to A12 puncha chits are dated long before the appointed day under the Act, the latest being A12 of 13.10.1941. The statement, Ext.A13, of Komban, the grandfather of the applicants is dated 27.06.1862. These documents are not relevant for consideration **M.F.A.(Forest) No.161 of 2006** ## **- 7 -** as to whether there was an intention to cultivate as on 10.05.1971. PW1 does not say as to when he got possession of the lands or as to who was in possession as on the appointed day, ie.10.05.1971. He admits that even the cultivated portion of 7 acres was entrusted to a lessee and hence it was incumbent that the lessee was examined to disclose the intention, if at all he was in possession as on the appointed day. PW2 was the Village Assistant, who was examined to speak of the various extents lying in the old and new survey numbers. We will examine the said testimony, if required, after looking at the sustainability of the intention claimed. 6. PW1 was again examined on 05.09.2000, which was after the second remand. His deposition is only on the non-appearance, which resulted in the dismissal of the O.A, not relevant for consideration of the actual dispute arising. PW3 is the 2[nd] applicant, the brother of PW1. He spoke of having seen the cultivation in the property carried on by his father and the trees having 30 years age; planted by his father. He specifically spoke of the entire land having not been cultivated due to financial difficulties. He also said that he intends to cultivate the land, if restored to his possession. He specifically spoke of his father having died in the year 1991, long after the appointed day, in cross-examination. Obviously, the land was in the possession of the father of the first and second applicants as on the appointed day. The **M.F.A.(Forest) No.161 of 2006** ## **- 8 -** first applicant, PW1, clearly deposed to the fact that only 7 acres was lying as garden land when he obtained possession of the land. The intention spoken of by both the witnesses, PWs.1 & 3 is only their intention to cultivate land, if they are restored the possession of the properties. 7. Ext.C1 is the commission report filed by the first Commissioner appointed, who inspected the property on 20.4.1989. According to the Commissioner, the disputed property lies sloping from south to north. Various plants are said to be existing, all of which are natural vegetation, which were also stated to be above 5 years in age. It was categorically stated that there is no cultivation as such on the disputed property, apart from a small portion lying in the western side. There were trees noticed in the property, again forest species, which had age of 10 to 35 years. The trees were found more predominantly grown on the eastern side and lesser on the other three sides. The land was lying contiguous to vested forest on the eastern side and there were small rocky areas within the disputed property. Ext.C1 does not come to the aid of the applicants, since neither cultivation as on the appointed day, nor on the date of inspection is evident from the report. In Ext.C2 another Commissioner reported scanty presence of 9 coconut trees, some plantains and some seasonal crops in the property comprised in Sy.No.281/5 and 11 coconut trees in Sy.No.281/4 having approximate **M.F.A.(Forest) No.161 of 2006** ## **- 9 -** age of 18 to 25 years. The Commissioner visited the property on 20.06.1999. In the totality of the evidence as detailed above, we have to find that there was not even a testimony that as on 10.05.1971 there was an intention to cultivate, nurtured by the father of PWs.1 & 3, who was admittedly in possession of the property as on the appointed day. There is also no independent evidence as to the attendant circumstances, which would enable us to discern an intention to cultivate on the person who was holding the property as on the appointed day. We find the Tribunal to have erred in considering the depositions of PW1 & 3 as having spoken of an intention to cultivate. The intention spoken by both the witnesses was only, on restoration of the properties. We hence find no reason to sustain the order of the Tribunal. We allow the appeal, set aside the order of the Tribunal and reject the application filed before the Tribunal. Parties are left to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** sp/10/03/2023