MFA Nos.139 & 140 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 02ND DAY OF JULY 2018 / 11TH ASHADHA, 1940 ## MFA.No. 139 of 2008 AGAINST THE ORDER IN OA 20/2006 of FOREST TRIBUNAL, KOZHIKODE DATED 11-07-2008 ## APPELLANT/S: NAFEESA, AGED 48 YEARS, W/O.MOOSAKUTTY HAJI, CHAVADIYOOR, PUDUR VILLAGE,, MANNARKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.P.BALAGOPAL ## RESPONDENT/S: - 1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY (FOREST & WILD LIFE), THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX,, OLAVAKKODE, PALAKKAD. ## BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2018, ALONG WITH MFA.140/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA Nos.139 & 140 of 2008 -2- ## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & ## THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 02ND DAY OF JULY 2018 / 11TH ASHADHA, 1940 ## MFA.No. 140 of 2008 AGAINST THE ORDER IN OA 19/2006 of FOREST TRIBUNAL, KOZHIKODE DATED 1107-2008 ## APPELLANT/S: ## MOOSAKUTTY HAJI, S/O. P MOIDU HAJI, CHAVADIYOOR, PUDUR VILLAGE,, MANNARKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.P.BALAGOPAL ## RESPONDENT/S: - 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY (FOREST & WILD LIFE), THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. ## BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. GOVERNMENT PLEADER FOR FOREST THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2018, ALONG WITH MFA.139/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA Nos.139 & 140 of 2008 -3- ## **JUDGMENT** ## K. Harilal,J. The appellants herein are the applicants in O.A. Nos. 19/2006 and 20/2006 of the Forest Tribunal, Kozhikode. They are husband and wife. They filed the aforesaid applications under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter called as 'Vesting Act'). In both the applications, they prayed for a declaration that the Application Schedule Properties are not private forests as defined under Section 2(f)(1) of the Vesting Act, and if finds otherwise, they are liable to be exempted under Sections 3(2) and 3(3) of the Vesting Act. 2. The respondents resisted the said applications contending that the schedule properties in both the applications are private forests vested in Government under Section 3 of the Vesting Act and they are not liable to be exempted either under Sections 3(2) or 3(3) of the Vesting Act. Both the applications were tried together and the Forest Tribunal dismissed both the applications on a finding that the applicants could not prove their ownership over the properties as on the appointed day, and it is not clear from the evidence that the respective owners under whom the applicants claimed interest were MFA Nos.139 & 140 of 2008 -4- cultivating the properties personally as on 10.05.1971. Thus, they failed to prove that the OA schedule properties are not private forests vested in Government as on 10.05.1971 and they are entitled to get exemption under Section 3(2) or under Section 3(3) of the Vesting Act. The legality and correctness of the aforesaid findings, whereby the Forest Tribunal dismissed the applications, are assailed in these appeals. ## M.F.A. (Forest) No. 139 of 2008 3. The brief facts of the case can be summarised as follows: The parties are referred to as in the Original Application. According to the appellant, the OA Schedule Property having an extent of 50 cents comprised in Survey No. 1007 of Pudur Village originally belonged in jenm to Pudur N. Kanthaswami Kounder. While so, one Sundaran took the said property on oral lease for an annual rent of Rs.2/- per acre. After the death of the said Sundaran, the property devolved upon his wife Sarojini and their minor children, who are the only legal heirs of the deceased Sundaran. Thereafter, the applicant purchased the said property from Sarojini and others by virtue of Assignment Deed No. 1209/2005 of SRO, Agali. The properties were put under regular cultivation during the life time of the aforesaid Sundaran, who planted coconut trees and cultivated other various MFA Nos.139 & 140 of 2008 -5- crops in the property. The applicant also carried out regular cultivation in the property. This property was used for cultivation only. On 16.08.2006, some forest officials trespassed into the property and obstructed the peaceful enjoyment of the property holding that the property is a vested forest. But, there was no notification under Rule 2A of the Private Forests (Vesting and Assignment) Rules and therefore, the application is not barred by limitation. The property was not governed by the provisions of the Madras Preservation of Private Forests Act, 1949 ('MPPF Act' for short) at any time and there was no natural growth of trees. In the above circumstances, the applicants have no way other than approaching the Forest Tribunal, seeking a declaration that the application schedule property is not a private forest vested in the Government and if finds otherwise, he is entitled to get the benefit under Sections 3(2) and 3(3) of the Vesting Act. 4. The respondents resisted the said application contending that the application schedule property is a private forest vested in the Government under Section 3 of the Vesting Act. They denied all the averments in the Original Application. According to them, the application is not maintainable and the same is barred by limitation. An extent of 8034 hectares of private forest, under different survey numbers of Agali Village in Mannarkkad Taluk, was vested in the MFA Nos.139 & 140 of 2008 -6- Government as per Section 3(1) of the Act. The said vested property was locally known as 'Aralikonam' and 'Kinnakara Malavaram', which was earlier governed by the provisions of the MPPF Act. As per Section 3(1) of the Vesting Act, after vesting the right, the title and interest of the applicant or other persons or any other person in such private forest shall stand extinguished. Thus, the Government has become the absolute owner of the said private forest having an extent of 8034 hectares with effect from the appointed day i.e., 10.07.1971. The application schedule property forms a part of the aforesaid 8034 hectares of land vested in the Government on 10.05.1971. After notification, necessary publications have been effected under the Vesting Rules. The schedule property in the said OA is in Survey No. 1007 and the same is vested as per VFC item Nos. 27 and 28 in Aralikonam and Kinnakara Malavaram. The said land was never in the possession of the applicant. No prior document has been produced in evidence. There is no evidence to prove that the schedule property was taken on oral lease by the predecessors-in-interest of the applicant. The tax receipt and the possession certificate issued in respect of the vested forest after the appointed day is null and void as per Section 22 of the Kerala Forest Act, 1961. The applicant has not produced any document to prove interest and possession of his MFA Nos.139 & 140 of 2008 -7- predecessor. The description of the boundaries in the schedule to the application is not correct. The boundaries and the survey number shown in the application schedule are not in conformity with the survey number and the boundaries shown in Ext.A1 title deed, Ext.A2 tax receipt and Ext.A3 possession certificate etc. With the aforesaid averments, the respondents prayed for dismissal of the application. MFA No. 140 of 2008 5. The applicant in the O.A is the wife of the applicant in O.A. No. 19 of 2006. According to the appellant, the applicant obtained right over the schedule properties by way of jenmam assignment deed No.1593/96 of SRO, Agali executed in her favour by one Somappa Gounder. Somappa Gounder was having verumpattam tenancy right over the properties. While so, he obtained jenmam right over the properties as per purchase certificate Nos.251/1971 and 1218/1972 issued in his favour by the Land Tribunal in O.A. No. 730/1970 and S.M.144/1972, respectively. The said Somappa Gounder planted coconut trees and cultivated with various seasonal crops like thuvara, groundnut, ragi etc. He also constructed a tank in the schedule item No.1 property for the purpose of irrigation in the entire schedule properties. The schedule properties are slopping towards south and therefore, bunds were constructed to prevent soil erosion. The MFA Nos.139 & 140 of 2008 -8- applicant also carried out regular cultivations in the properties. The schedule properties were held by the applicant for the sole purpose of cultivation. On 16.08.2006, some forest officials trespassed into the schedule property and obstructed the peaceful enjoyment of the property alleging that it is vested forest. The forest officials have no manner of right to enter into the schedule property and to obstruct the applicant's enjoyment, since the schedule property was not a private forest at any time. The schedule properties have no visible feature or characteristics of a forest land. There is no notification as contemplated under Rule 2A of the Kerala Private Forest (Vesting & Assignment) Rules, 1974 and therefore, the application is not barred by limitation. The schedule property was never governed by the M.P.P.F Act. There is no natural growth in the schedule property at any point of time. Private lands are situated in the neighbouring areas of schedule property. The applicant or her predecessor-in-interest do not have land in excess of the ceiling limit. Hence, the applicant prayed for a declaration that the schedule property is not a vested forest and also that the applicant is entitled for the benefit of Sec.3(2) and 3(3) of the Act. 6. The Divisional Forest Officer, Mannarkkad Division, filed a counter affidavit on behalf of the respondents resisting the application MFA Nos.139 & 140 of 2008 -9- and denying the allegations in the application. The contentions are similar to the contentions in counter affidavit filed in O.A.19/2006. The respondents prayed for dismissal of the application. 7. On the aforesaid rival pleadings, both the parties went to joint trial and the evidence was let in common. 8. Heard the learned counsel for the appellants and the learned Special Government Pleader appearing for the respondents. 9. In both OA Nos. 19 and 20 of 2006, the evidence consists of the oral testimony of PWs 1 and 2 and RW1, the documentary evidence of Exts.A1 to A8 and B1 to B3 and the Court Exhibits, Exts.C1 to C4. The sum and substance of the arguments advanced by the learned counsel for the appellants is that the courts below miserably failed to appreciate the evidence on record in its correct perspective. According to the learned counsel, the applicants have succeeded in proving their claim that the application schedule property was not a private forest vested in the Government on 10.05.1971. 10. _Per contra,_ the learned Special Government Pleader advanced his arguments to justify the findings of the Forest Tribunal, whereby the applications are dismissed. According to him, the Tribunal has appreciated the evidence on record in its correct perspective and there is no scope for any interference in this appeal. MFA Nos.139 & 140 of 2008 -10- 11. In the light of the arguments, the points to be considered in these appeals are as follows: 1. Whether the Tribunal is justified in finding that the applicants have failed to prove that the application schedule properties in both cases are not 'private forest' as defined under Section 2(f) (1)(i) of the Act? 2. Whether the Forest Tribunal is justified in finding that the applicants failed to prove that the ownership of the application schedule properties in both cases were vested with their respective prior owners as on the appointed day and that the respective prior owners, under whom the applicants are claiming title and interest, were cultivating the application schedule properties personally, as on 10.05.1971? 3. Whether the Tribunal is justified in finding that the application schedule properties in both cases are not liable to be exempted under Sections 3(2) or 3(1) of the Vesting Act. 12. The application schedule property in O.A. No. 19 of 2006 is 50 cents comprised in Survey No. 1007/pt of Agali Village. The applicant purchased the said property by virtue of Ext.A1 assignment deed dated 08.07.2005. According to the applicant, he purchased the said property from Sarojini and his children and the property devolved MFA Nos.139 & 140 of 2008 -11- upon them as the legal heirs of the deceased Sundaran. Sundaran was in possession of the property as a lessee under Kanthaswami Kounder, who had jenmam right over the said property. As rightly observed by the Forest Tribunal, there is no specific pleadings claiming that the predecessor-in-interest of the applicant have personally cultivated the property before 10.05.1971, i.e., the appointed day and they were in possession of the property as cultivating tenants. 13. It is settled by the Full Bench decision of this Court reported in _**State of Kerala v. Chandralekha**_ (1995(2) KLT 152) that the person, who prefers a claim before a Tribunal that the property is not a private forest or that it is not vested under the Vesting and Assignment Act, has the burden to establish his case. As he alone can produce necessary evidence in support of his case, it can never be held that the onus of proof is on the State to prove that the land in question is a private forest. As the owner of the land, he has to prefer his claim before the Tribunal, that the land is not a private forest or that the private forest is not vested in Government and necessarily, he has to establish that claim as he alone is in possession of the data and materials to prove his case. Thus, the burden is squarely upon the applicant, to substantiate his claim. 14. Here it is the case of the applicants that the predecessors- MFA Nos.139 & 140 of 2008 -12- in-interest of the applicants were holding the property as cultivating tenants as on the appointed day i.e., 10.05.1971 and therefore, the application schedule property would not fall under the definition of the private forest as defined under Section 2(f)(1) of the Vesting Act. It is also contented that the MPPF Act was not applicable to the application schedule property, before the appointed day. Therefore, the first question to be considered is whether the applicant has succeeded in proving that the application schedule property is not a private forest as defined under Section 2(f)(1) of the Vesting Act. Section 2(f) of the Act reads as follows: (f) "private forest" means- (1) In relation to the Malabar district referred to in sub-section (2) of Section 5 of the state Reorganisation Act, 1956 (Central Act 37 of 1956)- (i) any land to which the Mardras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding- (A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964); (B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. Explanation.-Lands used for the construction of office building, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops: (C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;" MFA Nos.139 & 140 of 2008 -13- 15. In this enquiry, the first point is whether the applicants have succeeded in proving that the application schedule property is a land to which Madras Preservation of private forest Act, 1949 was not applicable, immediately before the appointed day. In State of _**Kerala v. Kunhiraman**_ (1990(1) KLT 382), it is held that the burden is on the applicant to prove that the application schedule property is a land to which the MPF Act was not applied immediately before the commencement of the Vesting Act. 16. It is true that in the application, it is averred that the MPPF Act was not made applicable to the application schedule property. No evidence has been adduced during the course of trial to substantiate the said contention and therefore, it can safely be concluded that the applicant has failed to prove that the application schedule property was a land to which MPPF Act was not made applicable before the appointed day. The next point to be considered is whether the application schedule properties would fall under clauses (A) or (B) of Section 2(f)(1)(i). The applicants have no case that the application schedule property was a garden or nilam as defined under the Kerala Land Reforms Act, 1963 or that it was used principally for cultivation of tea, coffee, coco, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the MFA Nos.139 & 140 of 2008 -14- preparation of the same for market. Similarly, the applicants have no case that the application schedule property was a land which was principally cultivated with cashew or other fruit bearing trees or principally cultivated with any other agricultural crops or it is a site of a building and lands appurtenant to and necessary for the convenient enjoyment and use of the such building. 17. The case put forward by the applicants in the applications is that their predecessors-in-interest have cultivated land with coconut and other seasonal crops. The point to be considered is whether there is any evidence to prove that the predecessors-in-interest of the applicant have cultivated coconut trees or any other agricultural crop or other fruit bearing trees as on the appointed day, i.e., 10.05.1971. The only available evidence is Ext.C3 report and the oral testimony of PW2 in this respect. Can they be relied on to establish the nature of property as on the appointed day. Ext.C3 report would show that there are 10 coconut trees aged 7 years, 5 coconut trees aged 12 years and one guava plant aged 3 years in the said property. But, it is pertinent to note that the Commissioner has visited the property on 17.01.2007 and he has not noticed any other type of cultivation in the property. Thus, the Commission report would show that the maximum age of coconut trees noted by him in the year 2007 is 10 years. MFA Nos.139 & 140 of 2008 -15- According to PW2, there are coconut trees having age about 25 years in the property. The oral testimony of PW2 can never be relied on in view of the age of the coconut trees reported by the Commission in Ext.C1 report. The Commissioner was also not examined in evidence. No objection was filed against the Commission report. There are two coconut trees aged about 10 years and two others, about 3 years. Thus, we find that even if Ext.C1 commission report has been taken at its face value and accepted as such, it cannot be held that the predecessors-in-interest of the applicant had personally cultivated the application schedule property as on 10.05.1971 with coconut trees. If they had cultivated the property with coconut trees as on 10.05.1971, the coconut trees would have been aged more than 35 years. Though the applicant in O.A. No. 19 of 2006 have claimed that originally the property belongs to Kanthaswamy, no document had been produced to prove the jenm right of the said Kanthaswamy. Similarly, no document was produced to prove that Kanthaswamy has leased out the property to one Sundaran and the said Sundaram was in possession of the property before 10.05.1971. The applicant has purchased the property from the wife and children of Sundaran in the year 2005 only. Admittedly, Sundaran had no title over the application schedule properties. So no title can be transferred by the legal heirs MFA Nos.139 & 140 of 2008 -16- of Sundaran to the applicant, after the death of Sundaran. In the above analysis, it can be concluded that there was absolutely no evidence to prove the ownership of the predecessors-in-interest of the applicant over the Application Schedule Properties or the nature of cultivation in the application schedule property as on the appointed day, 10.05.1971. No evidence was also adduced to prove as to who was in possession of the application schedule property as on the appointed day, 10.05.1971. Absolutely there is no evidence to prove that the predecessors-in-interest of the applicants have cultivated the properties with cashew or other fruit bearing trees. If the predecessors in interest of the applicant have not cultivated the property with cashew or other fruit bearing trees or any other agricultural crop as on the appointed day, it will not fall under the exceptions under clause (c) of Section 2(f)(1)(i) of the Act. In the above view, the Forest Tribunal is justified in finding that the applicant has miserably failed to prove their case that the application schedule property was not a 'private forest' as defined under Section 2(f)(i) of the Vesting Act. 18. If the application Schedule Property is a 'private forest' as defined under Section 2(f)(1)(i) of the Vesting Act, the question that arises for consideration is whether they are entitled to get the MFA Nos.139 & 140 of 2008 -17- protection either under Sections 3(2) or 3(3) of the Vesting Act. Here also the point is whether the applicant has succeeded to prove that his predecessor-in-interest was an owner in possession of the application schedule property and whether the property was under his personal cultivation as is within the sealing limits applicable to him under Kerala Land Reforms Act, 1963. We have already found that there is absolutely no evidence to prove that the predecessors-ininterest of the applicant was the owner in possession of the application schedule property as on the appointed day or the property was under their personal cultivation. The proof of personal cultivation is indispensable to grant an exemption under Section 3(2) of the Act. In the absence of any evidence to prove their claim that the properties were under their personal cultivation, the application schedule properties are not liable to be exempted under Section 3(2) of the Vesting Act. In this context, it is pertinent to note that the applicant has no case that the application schedule property is within the sealing limits applicable to him under the Kerala Land Conservation Act, 1963. 19. As regards the claim under Section 3(3), no valid registered document of title executed before 10.07.1971 has been produced to prove the claim under Section 3(3) of the Vesting Act. Therefore, the application schedule property is not liable to be exempted under MFA Nos.139 & 140 of 2008 -18- Section 3(3) or Vesting Act. That apart, going by the impugned judgment, we find that the Forest Tribunal considered the point whether the application schedule properties are the properties scheduled in the title deed and the tax receipt produced by the applicant in support of his claim. After comparing the description of the application schedule properties with the description of the properties shown in Exts.A1 and A2 tax receipt and A3 possession certificate, the Tribunal found that the properties scheduled in the applications are not the properties shown in Exts.A1 to A3 as the survey numbers and the boundaries are entirely different and distinct. In the above analysis, we find that the Forest Tribunal has rightly appreciated the entire evidence on record in its correct perspective, arrived at a just and proper finding and dismissed the application. We do not find any reason to interfere with the findings of the Forest Tribunal. Hence the appeals are devoid of merits and are dismissed accordingly. **K. HARILAL, JUDGE.** **ANNIE JOHN, JUDGE.** kav/rv MFA Nos.139 & 140 of 2008 -19- MFA Nos.139 & 140 of 2008 -20-