MFA No. 13 of 2013 (Appellants: Sobha R. Unni, Vidhu R. Unni, Vidhya R. Unni, legal heirs of deceased K. Ramanunni) v State of Kerala and Custodian of Vested Forest, Aranya Bhavan, Forest Complex, Olavakkode, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** ## **MFA.No. 13 of 2013** **AGAINST THE ORDER/JUDGMENT IN OA 58/2009 of FOREST TRIBUNAL, KOZHIKODE DATED 29-09-2012** ## **APPELLANTS/LEGAL HEIRS OF DECEASED K.RAMANUNNI THE APPLICANT IN THE O.A:** - **1 SOBHA R.UNNI W/O. LATE RAMANUNNI, AGED 57 YEARS,RESIDING AT KUZHINJODATH HOUSE, MANNAPRA, ALATHUR TALUK, PALAKKAD DISTRICT.** - **2 VIDHU R.UNNI S/O. LATE RAMANUNNI,AGED 29 YEARS, RESIDING AT KUZHINJODATH HOUSE, MANNAPRA, ALATHUR TALUK, PALAKKAD DISTRICT.** - **3 VIDHYA R.UNNI D/O. LATE RAMANUNNI, RESIDING AT KUZHINJODATH HOUSE, MANNAPRA, ALATHUR TALUK, PALAKKAD DISTRICT. (THE APPELLANS ARE REP.BY THE POWER OF ATTORNEY HOLDER, S.A.JOSEPH, S/O. SEBASTIAN, MADATHUVILAYIL HOUSE, VADAPURAM P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT). (THE APPLICANTS ARE REPRESENTED BY THE POWER OF ATTORNEY HOLDER, S.A.JOSEPH, S/O,SEBSTIAN, MADATHUVILAYIL HOUSE, VADAPURAM.P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT.)** ## **BY ADV. SRI.M.P.MADHAVANKUTTY** M.F.A.No. 13/2013 2 ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REP.BY THE PRINCIPAL SECRETARY, (FOREST & WILD LIFE), THIRUVANANTHAPURAM-695 001.** - **2 CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD-678 002. BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST GOVERNMENT PLEADER** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.No. 13/2013 3 ## **A.HARIPRASAD & T.V.ANILKUMAR, JJ.** **-------------------------------M.F.A.No.13 of 2013 ---------------------------------Dated this the 6[th ] day of June, 2019** ## **JUDGMENT** ## **A.HARIPRASAD, J.** This appeal, at the instance of the legal heirs of deceased applicant in O.A. No. 58 of 2009 before the Forest Tribunal, Kozhikode, is against an order passed by the Tribunal in an application seeking a declaration under Section 8 of the Kerala Private Forests(Vesting and Assignment) Act, 1971 (in short “The Vesting Act” hereinafter) that the scheduled property is not a private forest vested in the Government. 2. Short facts, relevant for the disposal of this case, are as follows: 3. The property described in the schedule to the application belonged in Jenmam to Palyam family. It is contended that the property was outstanding in the possession of Valiyaveettil Parukkutty Amma's Thavazhy on kanam right. From them, the predecessor-in- M.F.A.No. 13/2013 4 interest of the original applicant by name Parakkadan took the property along with other properties on lease for a yearly rent of 5 'paras' of black gram and was possessing the same and cultivating the property. Parakkadan assigned his rights in favour of the original applicant as per Exts. A2 and A3. Ever since then the original applicant came into possession of the properties. He developed the property as a full fledged rubber estate. It is the case in the application that the Forest officials attempted to disturb his possession on 20.10.2009. When such an attempt was made earlier, the original applicant had filed O.A. No. 44/1993 before the Forest Tribunal which was dismissed for want of jurisdiction in the absence of a proper notification. According to the original applicant, the properties are not vested forest. It is devoid of any tree growth. The properties are not part of any M.P.P.F Act area. The properties are parambas and there was no forest in existence prior to 10.5.1971, the appointed date under the Vesting Act. After disposal of the case by the Tribunal, the original applicant died and his legal heirs had preferred this appeal. 4. The respondent State and its officers filed a counter affidavit contending that the application scheduled properties form part of a huge “malavaram” known as Vellapparakkunnu Malavaram having an extent of 80 Hectres. The entire land falling under Survey No. 428/K was not notified as vested forest vide Ext.B1 notification. 5. It is the case of the respondents that a proper notification was M.F.A.No. 13/2013 5 published as per the Vesting Act. The disputed property lies well within the demarcated boundary of Vellaparakunnu Malavaram and the land was protected as vested forests from the appointed day. The land scheduled in the application was never been in the possession of the appellant as claimed. There was no cultivation in the application scheduled properties as on 10.5.1971 and the properties are forest land. It is also contended that the appellants are not entitled to any declaration in respect of the property and Sections 3(2) and 3(3) of the Vesting Act are not applicable to this case. A plea of limitation was also taken by the respondents. 6. It is seen from the records that the Tribunal after considering the testimony of PWs.1 and 2 on the side of the appellants and RW1 on the side of the respondents and also Exts.A1 to A3 and Exts.B1 to B3 along with Ext.C1 series of Commissioner's report entered a finding that the property scheduled to the application is a forest coming under the purview of Vesting Act and therefore the appellants are not entitled to get a declaration sought for under Section 8 of the Vesting Act. 7. Heard the learned counsel appearing for the appellants and the Special Government Pleader for the State. 8. It is the submission by the learned counsel for the appellants that the Tribunal erred in appreciating the evidence correctly which resulted in wrong findings. Whereas, the learned Special Government M.F.A.No. 13/2013 6 Pleader supported the findings by contending that evidence adduced by the appellants are highly insufficient to establish the case pleaded in the Original Application. Reliance is also placed by the learned Special Government Pleader on a Division Bench decision reported in _**State of Kerala v. Kunhiraman [(1990) (1) KLT 382**_ ] and a Full Bench decision in _**State of Kerala Vs. Chandralekha [(1995) (2) KLT 152]**_ to contend a proposition that the burden is on the claimant to prove that the land in question was not a private forest on the appointed day. This proposition is indubitable. 9. The Tribunal after considering the various precedents cited before it correctly laid down the proposition that the appellants have to establish that the scheduled property is not a private forest coming under the provisions of the Vesting Act and that it was cultivated on or before 10.5.1971 to get it exempted from operation of the Act. 10. After examining the contentions raised by the appellants, the Tribunal entered a definite finding that the benefits under Sections 3(2) and 3(3) of the Vesting Act are not available to them since no material evidence was brought in to establish the case. 11. Learned Special Government Pleader drew our attention to the testimony of PWs1 and 2 to contend that they utterly failed to establish the case pleaded in the O.A. We are in agreement with the above contention that PWs1 and 2 failed to prove the fact that prior to 10.5.1971 application scheduled property was not a private forest. M.F.A.No. 13/2013 7 PW1 was having no direct knowledge about the condition of the land prior to 10.5.1971. PW2 though testified about black gram cultivation in the property prior to 10.5.1971, it was found to be not credible by the Tribunal for valid reasons. 12. Regarding the documents produced in the case, the Tribunal had taken note of the fact that Exts.A2 and A3, the title deeds relied on by the appellants, are of the year 1991 and the recitals therein would not show that the property scheduled to the application was not a private forest on the appointed day. The State has produced Exts. B1 to B3 to show that the land in question was notified under the Vesting Act after complying with all the formalities. Copy of the periphery sketch as per Ext. B2 also shows the fact that it was properly notified under the provisions of the Act. Our attention has been drawn to the Commissioner's report dated 19.11.2011. The Commissioner has reported that at present the property is a rubber plantation. What is the state of affairs as on the date of application is not relevant for the purpose of deciding the case and what was the condition of the land as on 10.5.19971 is a crucial question to be decided for which there is no material, contended by the Special Government Pleader. 13. To surmount the difficulty, learned counsel for the appellants produced additional documents before this Court in this appeal. Along with in I.A.2/2019, three documents are produced. The first document produced is a certified copy of a partition deed bearing registration No. M.F.A.No. 13/2013 8 239 of 1929 before the SRO, Alathur. This document is produced by the appellants to show that original application scheduled properties along with other items was set apart to the share of Valiyaveettil Parukutty Amma who is described as executant No.32 in the document. Our attention has been drawn to G-schedule item No.18 to show that the property lying in Survey No.336/14 had been set apart to the family of Parukkutty Amma and the application schedule property is a part of that item. 14. Another document produced is a 'pattachit' executed by Parakkadan, S/o.Chundai, dated 10.8.1969. It is an unregistered document. The recitals in this document would show that certain properties described in the document had been taken on lease by Parakkadan from Parukutty Amma for the purpose of black gram cultivation. The schedule takes in a property in Survey No. 336/14 along with other items. 15. Yet another document produced is a copy of a 'pattachit' executed by Parakkadan on 5.7.1963, which is apparently prior to the 'pattachit' of 10.8.1969. In the 1963 'pattachit' also, property in resurvey No. 336/14 having an extent of 2 Acres 93 cents has been mentioned. 16. The appellants produced another document along with I.A. No. 3/2019 which is a document executed by Parukkutty Amma and her son Rajan in favour of the original applicant. This document is dated M.F.A.No. 13/2013 9 ## 28.6.1991. 17. From the tenor of this document it can be seen that certain items belonging to Parukutty Amma and her son Rajan were outstanding in the possession of Parakkadan for black gram cultivation. 18. The property outstanding in the possession of Parakkadan is said to be in re-survey No.336/14 and other survey numbers. This particular document, though of the year 1991, would show that Parukutty Amma and her son Rajan had only an intermediary right since the Jenm right vested with the Government as the property was outstanding in the possession of a tenant Parakkadan, as per the provisions of the Kerala Land Reforms Act, 1963. 19. Learned counsel for the appellants submitted that by virtue of these documents, the appellants are hopeful of proving that the property much prior to 10.5.1971 was outstanding in the possession of Parakkadan as a cultivating tenant and he was growing black gram in the property prior to the appointed day. It is also urged that if these documents are allowed to be proved, the appellants have a fair chance of success. The learned Special Government Pleader strongly opposed these contentions by raising the following arguments. According to him, the case spoken to by PWs.1 and 2 and the correct findings entered by the Tribunal with respect to the documents shall not be allowed to be disturbed by adducing fresh evidence. M.F.A.No. 13/2013 10 20. We are fully aware of the principles relating to Order 41 Rule 27 of the CPC and the scope of a remand under Order 41 Rule 23 of the CPC. It is well settled proposition in law that reception of additional evidence cannot be done as a matter of course. If only the conditions stipulated in Order 41 Rule 27 (a) or (aa) of the CPC are satisfied, this Court can receive additional evidence. The appellants have no case that the Tribunal refused to adduce evidence which ought to have been admitted. The learned counsel for the appellants would rely on Clause (aa) in Order 41 Rule 27 CPC to contend that despite the best efforts and due diligence the documents now produced could not be traced out and so they were not able to be produced before the Tribunal. It is also pointed out that these documents came into the possession of the original applicant and after his death to his legal heirs and they produced it from a lawful custody. 21. Similarly, the legal position regarding remand of a case is also well settled. We are not oblivious of the proposition that unnecessary remand will only cause prolongation of the litigation. But, if this Court decides to receive additional evidence in this case, it becomes imperative for this Court to afford an opportunity to the appellants to establish their case. 22. Learned counsel for the appellants contended that the scribe to Exts.A2 and A3 is one Poothamkurissi veetil Kumaran. He is a witness to the document dated 28.6.1991 produced along with I.A. 3/2019. He M.F.A.No. 13/2013 11 is the scribe of 'pattachit' executed by Parakkadan in the name of Parukutty Amma on 5.7.1963. It is the contention raised by the learned counsel for the appellants that Kumara Kurup and P.Kumaran is one and the same person. If a chance is given to the appellants, it would enable them to prove the signature of Parakkadan seen on the 'pattachit' . 23. Learned Special Government Pleader opposed the contention by stating that no valid reason is stated by the appellants for not producing these documents before Court. As pointed out, the learned counsel for the appellants contended that the appellants were not aware of the significance of these documents and only on dismissal of the application and on perusal of the impugned order, they thought of producing it for establishing their case. 24. As stated above, the testimony of PWs.1 and 2 coupled with Exts. A2 and A3, will not prove the case of the appellants to any extent. Since the appellant has a consistent case right from the application till today that the property scheduled in the application is not a vested forest and prior to 10.5.1971, and it is a land used for cultivation, this Court is of the view that in the light of the new documents produced an opportunity should be given to the appellants to prove their contentions. However, it is made clear that the appellants shall not be allowed to reopen the whole case by recalling or in any other manner disturbing the evidence already adduced M.F.A.No. 13/2013 12 before the Tribunal. For the limited extent of proving the documents produced along with I.A. No. 2/2019, the matter is remanded to the Tribunal with the following directions. In the result, the appeal is allowed. The impugned judgment passed by the Tribunal is set aside. The documents produced along with I.A Nos.2 & 3 of 2019 are hereby marked as Exts. A4, to A7. It is made clear that marking of documents will not absolve the responsibility of a party to prove them. The records along with the application shall be sent to the Tribunal for affording the appellants to adduce evidence only in respect of Exts. A4 to A7 documents. The parties shall appear before the Tribunal on 8[th] July 2019 **.** The Tribunal shall dispose of the case as expeditiously as possible, at any rate on or before 30[th] September 2019. **A.HARIPRASAD JUDGE** **T.V.ANILKUMAR JUDGE** al/-