M.F.A (Forest) No.167 of 2006

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN** **TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022/17TH KARTHIKA, 1944** **MFA (FOREST) NO. 167 OF 2006** **OA 49/2000 OF FOREST TRIBUNAL, KOZHIKODE DTD.31.5.2003** ## **APPELLANTS:** 1 ELIAMMA *** (DIED)** W/O JOSEPH, AGED 66 YEARS, RESIDING AT PARIKKAPPALLI HOUSE, POST IDIVANNA IN NILAMBUR TALUK, MALAPPURAM DIST. ****** SUPPL. ANNAMMA APPELLANT D/O ELIYAMMA, 2 AGED 50 YEARS, RESIDING AT KOCHUPARAMBIL HOUSE, POST MODAPPOKA, EDAKKARA VIA, EDAKKARA. SUPPL. SOOSANNA JAMES APPELLANT W/O JAMES, AGED 47 YEARS, RESIDING AT 3 EDATHOTTIL HOUSE, POST CHEMBUKADAVU, KODANCHERRY. SUPPL. SIBI JOSEPH APPELLANT S/O JOSEPH P.M., AGED 43 YEARS, RESIDING AT 4 PARIKKAPPALLI HOUSE, POST IDIVANNA IN NILAMBUR AMSOM AND DESOM AND TALUK, MALAPPURAM DIST. SUPPL. MERCY JOHN APPELLANT W/O JOHN, 5 AGED 42 YEARS, RESIDING AT ENEKKATT HOUSE, POST AAYOOR, KOTTARAKKARA VIA, KOLLAM DIST. SUPPL. SAJU JOSEPH APPELLANT S/O JOSEPH, AGED 39 YEARS, RESIDING AT 6 PARIKKAPPALLI HOUSE, POST IDIVANNA IN NILAMBUR AMSOM, DESOM, MALAPPURAM. SUPPL. SHEENAMMA APPELLANT W/O THANKACHAN, AGED 37 YEARS, RESIDING AT 7 KUNNEL HOUSE, DHARMAGIRI, POST GOODALUR,NILGIRI. **** (SUPPL. APPELLANTS 2 TO 7 TRANSPOSED)** BY ADV SRI.V.V.SURENDRAN ## M.F.A (Forest) No.167 of 2006 ..2.. ## **RESPONDENTS/RESPONDENTS & APPLICANTS 2 TO 7:** - 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. - 2 THE CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. - ******* 3 ANNAMMA D/O. ELIYAMMA AGED 44 YEARS, RESIDING AT KOCHUPARAMBIL HOUSE, POST MODAPPOKA, EDAKKARA VIA, EDAKKARA. [TRANSPOSED] - 4 SOOSANNA JAMES W/O. JAMES AGED 41 YEARS, RESIDING AT EDATHOTTIL HOUSE, POST CHEMBUKADAVU, KODANCHERRY. [TRANSPOSED] - 5 SIBI JOSEPH, S/O. JOSEPH P.M. AGED 37 YEARS, RESIDING AT PARIKKAPPALLI HOUSE, POST IDIVANNA IN NILAMBUR AMSOM AND DESOM AND TALUK, MALAPPURAM DIST. [TRANSPOSED] - 6 MERCY JOHN W/O. JOHN AGED 35 YEARS, RESIDING AT ENEKKATT HOUSE, POST AAYOOR, KOTTARAKKARA VIA., KOLLAM DIST. [TRANSPOSED] - 7 SAJU JOSEPH, S/O. JOSEPH AGED 33 YEARS, RESIDING AT PARIKKAPPALLI HOUSE, POST IDIVANNA IN NILAMBUR AMSOM, DESOM,MALAPPURAM. [TRANSPOSED] - 8 SHEENAMMA W/O. THANKACHAN AGED 31 YEARS, RESIDING AT KUNNEL HOUSE, DHARMAGIRI, POST GOODALUR, NILGIRI.[TRANSPOSED] ***** [Respondents 3 to 8, the LR's of the appellant are recorded and transposed as supplemental appellants 2 to 7 as per order dtd.24.10.2011 in I.A.No.2475/11]** BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A (Forest) No.167 of 2006 ..3.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------- M.F.A (Forest) No.167 of 2006 ------------------------------------------------------------Dated this the 8[th] day of November, 2022 ## **JUDGMENT** ## C.Jayachandran, J. The non-suited applicants in O.A.No.49/2000 of the Forest Tribunal, Kozhikode are the appellants. The order under challenge is one dated 31.5.2003, as per which, the Original Application was dismissed, holding that the applicants failed to prove their title over the scheduled property, besides failing to prove that they are not having lands in excess of the ceiling limit under the Kerala Land Reforms Act. The exemption sought for under Sections 3(2) and 3(3) of the Kerala Private Forest (Vesting and Assignment) Act (hereinafter referred to as 'the Vesting Act', for short) were also found against. 2. Facts in brief:- The scheduled property has an extent of 2.41 acres in Re.Sy.no.2 of Akambadam Village of Nilambur Taluk. The applicants would trace their title to the scheduled property on M.F.A (Forest) No.167 of 2006 ..4.. ## the strength of the following pleadings: “The property scheduled in the 0.A. originally belonged to Manjeri Kovilakam from where the property along with other properties was assigned to Edwerd Makkam as per a Patta Karar registered as document No.3464 of 1912 of Thekke Malayalam District Registery. From Edwerd Makkam the property was purchased by Edamanna Rubber Tea Company Limited as per document No.2644/1913 of Thekke Malayalam District Registry. Edamanna Rubber Tea company assigned the property to Cochin Malabar Estate as per document No.1260 of 1930 of Madras Sub Registry. From Cochin Malabar Estate, the property was purchased by Manalur Rubber company Limited as per document No.758 of 1958 of Kozhikode District Registry. From Manalur Rubber company Limited, the property scheduled in the O.A. was purchased by the husband of the 1[st] petitioner and father of petitioners 2 to 7 namely Joseph as per document No.62 of 1971 of Nilambur Sub Registry dated 12.1.1971.” 3. According to the applicants, the scheduled property was a rubber nursery maintained by the predecessors of Joseph and that the same was subsequently planted with cashew and bamboo. The applicants and their predecessors were M.F.A (Forest) No.167 of 2006 ..5.. cultivating the property with seasonal crops, like ginger, yam, tapioca, plantain, etc. as on 10.5.1971, prior to it and later as well. The predecessor of the applicants availed a loan from the South Malabar Gramin Bank for cultivation of the land. The applicants effected improvements in the property by cultivating the same. The scheduled property was not a private forest and the same was in the exclusive ownership, possession and enjoyment of Sri.Joseph, the husband of the first applicant, who died on 31.8.1998. Thereafter, the applicants being the legal heirs, are the owners in possession and enjoyment of the property. It was held under their personal cultivation. On such premise, the applicants sought for a declaration that the scheduled property was not a private forest and claimed exemption under Sections 3(2) and 3(3) of the Act, alternatively. 4. The Divisional Forest Officer filed counter affidavit contending that the scheduled property is part of the vested forest within the limits of Akambadam forest station. It forms part of V.F.C. item Nos.5 and 14, covered by notification M.F.A (Forest) No.167 of 2006 ..6.. No.82055/FS-2-1/77 dated 10.1.1977. The property described in the title deed bearing no.62/1971 relates to some other property and not the scheduled property. There was no cultivation before or after 10.5.1971 in the scheduled property. The scheduled property is a pucca forest, full of bamboo clusters, a portion of which is rocky as well. On such premise, the official respondents sought for dismissal of the O.A. 5. The evidence in this case consists of Exts.A1 to A4, supported by the oral evidence of PW1 (6[th] applicant), on the part of the applicants. Exts.B1 and B2 were marked on the part of official respondents, besides examining the Forest Range Officer as RW1. The Commissioner's report and plan were marked as Exts.C1 and C2 respectively. 6. On an analysis of the facts, evidence and probabilities of the case, the Tribunal found that the identity of the scheduled property has not been established by the evidence adduced and that the applicants failed to produce the documents prior to their title deed. It was further found that the applicants failed to establish that they are not holding lands beyond the ## M.F.A (Forest) No.167 of 2006 ..7.. ceiling limits under the Kerala Land Reforms Act. In the result, the O.A. was dismissed. 7. Heard Sri.V.V.Surendran, learned counsel for the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forest) on behalf of the respondents. Perused the records. 8. Having heard the respective counsel and perused the records, this Court cannot, but endorse the findings of the Tribunal in the impugned order. The Tribunal rightly found that the applicants failed to establish the identity of the scheduled property. The specific case pleaded is that the scheduled property has an extent of 2.41 acres comprised in Sy.no.2 of Akambadam Village. However, in Ext.C1 report, the Advocate Commissioner, with the assistance of the Village Officer and the Surveyor, found that the scheduled property, as shown by the applicants, is an un-surveyed land. The property comprised in Sy.no.2 lies on the southern side of the scheduled property. All other boundaries of the scheduled property are comprised of un-surveyed land. M.F.A (Forest) No.167 of 2006 ..8.. 9. In this regard it is profitable to refer to Ext.C1 report in the context of the cultivation claimed by the applicants. In paragraph no.8 of Ext.C1 report, the commissioner specifically found that no other 'kuzhikoors', except bamboo clusters and some scattered cashew trees, are available in the scheduled property. There was no sign of any cultivation of seasonal crops. The entire area is full of wild bamboo clusters and trees in the nature of forest species. As regards topography of the land, the commissioner reported that it is slanting upwards from south to north. In paragraph no.3 of the report, the commissioner found that the northern and eastern boundary of the scheduled property is also full of bamboo clusters, some parts of which are rocky also. On the southern and western side of the disputed property, the commissioner found a well maintained rubber estate owned by one Tomy Mathew. 10. It is true that the commission report was of the year 2002, which cannot vouch the state of affairs as on the appointed day under the Vesting Act. It remains a fact that there exists no evidence, whatsoever, to prove the state of M.F.A (Forest) No.167 of 2006 ..9.. affairs in respect of the scheduled property as prevailing as on the appointed day. Ext.A1 is the certified copy of the assignment deed no.62/1971 executed in favour of Joseph, the wife of the first applicant and the father of other applicants. However, the said document speaks about the property comprised in Re.Sy.no.2. The Tribunal found that the sale consideration was a meagre sum of Rs.500/-, which casts some suspicion on the genuineness of Ext.A1. Exts.A2(a) to A2(c) are land tax receipts of the years 2000, 2002 and 2001 respectively, which are of no avail in respect of the fact in issue under enquiry. Ext.A3 is the death certificate of the above referred Joseph. Ext.A4 is the passbook of South Malabar Gramin Bank in the name of the said Joseph, which, however, is also of no avail to prove the contention that he had availed a loan from the said bank for the purpose of cultivation. Ext.A4 passbook contains only two entries, of which the second entry pertains to the date 1.3.1990, much after the relevant date. M.F.A (Forest) No.167 of 2006 ..10.. 11. Now, coming to the oral evidence of PW1, it is relevant to note that he was aged 29 years, as on the date of testimony, i.e., on 30.10.2002. We may straightaway observe that PW1 is not a competent witness to speak about the state of affairs as on the appointed date, 10.5.1971. His information, if any, can only be hearsay. True that he spoke about the title to the scheduled property and the cultivation being done there prior to and after Ext.A1 sale deed. He also deposed that the cashew trees were 35 years old. However, the age of the trees as reported by the commissioner is only 10 to 15 years, that too scattered here and there. For the reasons aforesaid, we are of the opinion that the oral evidence tendered by PW1 is of no moment to prove the essential particulars for grant of reliefs sought for. 12. As held by the Full Bench of this Court in **State of Kerala v. Chandralekha** [1995 (2) KLT 152 (F.B.)] the burden to establish that the scheduled property was not a private forest as on the appointed day is squarely upon the applicants. The same is the position with respect to the M.F.A (Forest) No.167 of 2006 ..11.. exclusions under sub-clauses (A) to (D) of Section 2(f)1(i), or for that matter, the exemptions under Sections 3(2) and 3(3) of the Vesting Act. The burden in respect of all of the above referred aspects is not seen discharged by the applicants. There is complete dearth of evidence in respect of the material particulars. We find no infirmity or illegality in the order impugned dismissing the O.A. We confirm the order impugned and dismiss the appeal, however, relegating the parties to bear their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** skj