M.F.A.(Forest) No. 61 of 2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 4TH DAY OF JANUARY 2018 / 14TH POUSHA, 1939 **M.F.A.(Forest) No. 61 of 2015** AGAINST THE JUDGMENT IN O.A 6/2009 of FOREST TRIBUNAL, KOZHIKODE DATED 16.6.2015 ## **APPELLANTS** /APPLICANTS 2,3,5,6,7,8 & 9: 1 YOOSUF, S/O.KUNHAMMED, ALIKKAL HOUSE, ALANALLOOR VILLAGE, MANNARKAD TALUK, PALAKKAD DISTRICT. - 2 ABDUL AZEEZ, S/O.KUNHAMMED, ALIKKAL HOUSE, ALANALLOOR VILLAGE, MANNARKAD TALUK, PALAKKAD DISTRICT. - 3 KADEEJA, W/O.KUNHIMOHAMMED, ALIKKAL HOUSE, KOTTOPADAM VILLAGE, THIRUVIZHAMKUNNU, MANNARKKAD, PALAKKAD. 4 FAIZAL ALI, S/O.KUNHIMOHAMMED, ALIKKAL HOUSE, KOTTOPADAM VILLAGE, THIRUVIZHAMKUNNU, MANNARKKAD, PALAKKAD. 5 MANSOOR, S/O.KUNHIMOHAMMED, ALIKKAL HOUSE, KOTTOPADAM VILLAGE, THIRUVIZHAMKUNNU, MANNARKKAD, PALAKKAD. 6 BANEEZA, D/O.KUNHIMOHAMMED, ALIKKAL HOUSE, KOTTOPADAM VILLAGE, THIRUVIZHAMKUNNU, MANNARKKAD, PALAKKAD. 7 VAHEEDA, D/O.KUNHIMOHAMMED, ALIKKAL HOUSE, KOTTOPADAM VILLAGE, THIRUVIZHAMKUNNU, MANNARKKAD, PALAKKAD. (APPLICANT NO.4 DIED, APPELLANTS 1 AND 2 ARE HER LEGAL HEIRS ALREADY PARTIES). BY ADV.SRI.M.C.JOHN ## **RESPONDENTS** /RESPONDENTS 1 AND 2: 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY (FOREST & WILD LIFE) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 MFA.(Forest) No. 61 of 2015 2. THE CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD-678 002. R1,R2 BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** --------------------------------M.F.A.(Forest) No.61 of 2015 ---------------------------------Dated 4[th] January, 2018 ## **JUDGMENT** ## **Ravikumar, J.** This appeal filed under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short `the Act') is directed against the order in O.A.No.6 of 2009 passed by the Forest Tribunal, Kozhikode. The petitioners therein are the appellants. They filed the said original application under Section 8 of the Act seeking a declaration that the application schedule property is not a private forest and therefore, not liable to be vested under the Act. The Tribunal after evaluating the evidence on record and appreciating the rival contentions dismissed the original application. 2. We have heard Sri.M.C.John, the learned counsel appearing for the appellants and also the learned Government Pleader. 3. The facts in succinct necessary for the disposal of the appeal are as follows:- According to the appellants, the application schedule property belonged to their father and on his death it devolved upon them and since then they have been in exclusive possession of the said M.F.A. (Forest)No.61 of 2015 2 property. According to them, it is a cultivated land comprised in Survey No.235 of Kottopadam II Village in Mannarkkad Taluk and it is not a forest. The total extent of the application schedule property is 4.86 hectares (12 acres). It is their contention that their father obtained the said property as per Exts.A1 to A3. It is their further case that on 10.1.2009 the Forest Officials obstructed them from effecting cultivation. They alleged that there is no valid or a proper notification in respect of the said property under the Act. They also sought for the protection of Sections 3(2) and 3(3) of the Act. 4. The application was resisted by the respondents. It is the case of the respondents that the application schedule property forms part of a huge malavaram known as Kelalloor Malavaram having an extent of 560 hectares and that the property in question falls within the provisions of the erstwhile M.P.P.F. Act and the entire malavaram was notified as vested forest vide notification No.1383/77 dated 10.10.1977. They also disputed the contention of the appellants that the property in question was a cultivated land prior to 10.5.1971. It is their precise case that the application schedule property was a typical forest area on the appointed day and that it is a private forest under the provisions of the Act. The main contention of the respondents is that the original application is barred by the principles of _res judicata_ enshrined under Section 11 of the Civil Procedure Code in view of the M.F.A. (Forest)No.61 of 2015 3 final orders passed by the Forest Tribunal, Palakkad in I.A.Nos.341 of 1987, 342 of 1987 and 343 of 1987 in O.A.Nos.317, 318 and 319 of 1976 which were confirmed in the judgments of this Court in M.F.A.Nos.609 of 1988, 555 of 1988 and 589 of 1988 and S.L.P.Nos.3334, 3335 and 3336 of 2000 by the Hon'ble Apex Court. 5. Before the Tribunal, on the side of the appellants Messrs. Mansoor, Moideen, Veerappa and Haridas, the then village officer Mannarkkad were examined respectively as PWs1 to 4 and Exts.A1 to A4 were got marked. Exts.C1 and C2 are the commission report and plan respectively. Ext.X1 is the true copy of the Adangal extract of Koottoppadam I Village. On the side of the respondents, Assistant Wild Life Warden, Silent Valley National Park was examined as RW1 and Exts.B1 to B3 were got marked. Ext.B1 is the true copy of the notification No.1383/77 dated 10.10.1979, Ext.B2 is the true copy of periphery sketch of the area in question and Ext.B3 is the certified copy of the orders in I.A.Nos.341, 342 & 343 of 1987 in O.A.Nos.317, 318 & 319 of 1976. After perusing Exts.A1 to A3 which are the title deeds of the application schedule properties the Tribunal found that the properties covered by those documents were obtained by the father of applicants 1 to 4 namely Kunhammed and his brothers namely Mammootty, Rayin and Kunhayammu and their father Moidutty. In short, the Tribunal further found that the evidence would undoubtedly M.F.A. (Forest)No.61 of 2015 4 reveal that father of applicants 1 to 4 and his siblings and their father were the co-owners of the property and except the father of applicants 1 to 4 namely Kunhammed the other co-owners filed three original applications before the Forest Tribunal, Manjeri as O.A.Nos.317, 318 and 319 of 1976 under Section 8 of the Act seeking a declaration that the three items of properties described as application schedule properties in the said original applications are not private forest. Essentially, the contention of the respondents was that the properties involved in the said three original applications and O.A.No.6 of 2009 are one and the same. Initially an order was passed in favour of the applicants in the said original applications as per order dated 9.5.1977. Government had filed I.A.Nos.341, 342 and 343 of 1987 under Section 8B of the Act seeking review of the order dated 9.5.1977. Subsequently, those review applications were allowed as per Ext.B3 order dated 30.3.1988 holding that the application schedule properties therein except one acre in O.A.No.318 of 1976, are private forest. They also contended before the Tribunal that Ext.B3 order was unsuccessfully challenged by the applicants therein in appeal and thereafter before the Hon'ble Apex Court in S.L.P. Shortly stated, according to them, Ext.B3 order has become final and therefore, it would operate as _res judicata_ going by the principles under Section 11 of the Code of Civil Procedure (CPC). The Tribunal relied on the M.F.A. (Forest)No.61 of 2015 5 decision of a Division Bench of this Court in **Ayichutty** v. **State of Kerala (2002 (2) KLT 125)** wherein it was held that the principles of _res judicata_ embodied under Section 11 of C.P.C are applicable to the Forest Tribunal and after appreciating the evidence on record held that in the light of Ext.B3 order O.A.No.6 of 2009 is barred by the principles of _res judicata_ embodied in Section 11 of C.P.C. Consequently, the application was dismissed. 6. The Tribunal, elaborately considered the principles of _res judicata_ embodied under Section 11 of C.P.C. and held that in the light of Ext.B3 O.A.No.6 of 2009 from which these appeals arose, is barred by the principles of _res judicata_ under Section 11 of C.P.C. Challenge is mounted by the appellants against the said findings, only by raising the following contention as ground `F':- “The earlier proceedings stated to have been initiated by the brothers of the father of the Ist petitioner will not operate as resjudicata because, the father of the petitioner was not a party to that proceedings. Moreover the schedule property nearly 12 acres (4.8600 Ha) was not the subject matter in those proceedings.” Obviously, a perusal of Exts.A1 to A3 would reveal that the property in question was owned not only by the father of the appellants but jointly by their father, his siblings and their father. This fact is not at all disputed by the appellants. As noticed hereinbefore, it is in the light of Exts.A1 to A3 that the appellants attempted to establish their title over M.F.A. (Forest)No.61 of 2015 6 the properties. The tenor of ground `F', as extracted above, would reveal that the appellants are feigning ignorance about the institution of the original applications by the siblings of their father. That apart, a perusal of ground `F' would reveal that they have raised a totally untenable contention to canvass the position that Ext.B3 order would not operate as _res judicata_ . The contention raised by the appellants is that their father was not a party to the proceedings which culminated in Ext.B3 order. Though they have also raised a contention that the application schedule property was not a subject matter in those proceedings the said contention is absolutely bereft of any merit. It is evident from the impugned order itself that the appellants had not disputed the relationship between their father Kunhammed and Messrs. Mammootty, Rayin and Kunhayammu. So also, the fact that their grandfather Moidutty is the father of the aforesaid 4 persons namely, Kunhammed, Mammootty, Rayin and Kunhayammu, is also not in dispute. Ext.B3 itself would reveal that the said original applications were filed under Section 8 of the Act by Mammootty, Rayin and Kunhayammu. In the original applications they had categorically stated that in respect of the properties they are co-owners along with the father of the appellants namely Kunhammed. As noticed hereinbefore, the said O.As were filed by them under Section 8 of the Act seeking a declaration that the properties involved in those O.As are not forest M.F.A. (Forest)No.61 of 2015 7 land. Evidently, they had produced the very same title deeds viz., Exts.A1 to A3, relating the said properties, in the said proceedings. The Tribunal, very rightly found that though in the said original applications the extent of the properties were separately shown, in O.A.No. 6 of 2009 from which the present appeal arose, instead of showing the extent of properties covered by each of the document separately the appellants had shown the total extent of the properties covered by those documents namely, 4.86 acres as the application schedule properties. As noticed hereinbefore, a bare perusal of Ext.A1 to Ext.A3 would reveal that the very basis of the contention of the appellants that by virtue of Exts.A1 to A3 their father obtained the said properties is not fully correct as, as per those documents, their father obtained the properties along with his siblings and father. In other words, the father of the appellants, his siblings Messrs. Mammootty, Rayin and Kunhayammu and their father Moidutty were the co-owners of the said properties. The fact that the said persons filed O.A.Nos.317, 318 & 319 of 1976 under Section 8 of the Act and as per Ext.B3 order the Tribunal found that the application schedule properties except one acre in O.A.No.318 of 1976 are private forest is not in dispute. In fact, the said fact cannot be disputed. It is also an indisputable fact that Ext.B3 order was unsuccessfully challenged by the applicants in the said O.As before this Court in M.F.A.Nos.609, 555 and 589 of 1988. Aggrieved by M.F.A. (Forest)No.61 of 2015 8 the judgments passed in the said appeals they had unsuccessfully approached the Hon'ble Apex Court by filing S.L.P.Nos.3334, 3335 & 3336 of 2000. It is taking note of all such aspects that the Tribunal virtually upheld the contention of the respondents that Ext.B3 order pertaining to the properties involved in this case had become final. Despite such clear finding by the Tribunal, the appellants did not dispute the said facts in this appeal. As noticed hereinbefore, in the light of the evidence on record, the said fact cannot be disputed at all. Thus, what is emerged from the evidence on record and the discussion is that in respect of the application schedule properties having an extent of 4.86 hectares comprised in Survey No.235 of Kottopadam II Village, Mannarkkad Taluk, in O.A.Nos.317, 318 & 319 of 1976, the competent forum viz., the Forest Tribunal as per Ext.B3 order made a declaration that except one acre involved in O.A.No.318 of 1976 the balance properties are private forest. Such a declaration was made in the O.As moved by none other than the brothers of the father of the appellants who are the co-owners of the said properties. A perusal of O.A.No.6 of 2009 would reveal that even after producing Exts.A1 to A3 as the title deeds in respect of the application schedule properties the appellants took up a contention that those properties were obtained by their father and on his demise the properties devolved upon them. In troth, what was devolved upon them is only the share of their father in the said M.F.A. (Forest)No.61 of 2015 9 properties. It was during the life time of their father namely, Kunhammed that the other co-owners filed O.A.Nos.317, 318 & 319 of 1976 under Section 8 of the Act seeking a declaration that the three items of properties described in the application schedule properties in the schedule of the said O.As are not private forest. It is that issue which was decided by the Tribunal as per Ext.B3 which got confirmance by the dismissal of M.F.A.Nos.609, 555 & 589 of 1988 as also dismissal of S.L.P.Nos.3334, 3335 & 3336 of 2000. In such circumstances, it is to be noted that O.A.No.6 of 2009 is also barred by issue estoppel. The very issue which was earlier decided in O.A.Nos.317, 318 & 319 of 1976 was whether the items of properties described in the schedule of the said O.As are private forest or not. When it is evident that the properties so described in the schedule of the said Original Applications and the properties involved in this case are one and the same Ext.B3 order should bar a further examination of the issue based on the principles of issue estoppel, as well. As per Ext.B3 order, the Tribunal found that items of properties prescribed in the schedule of O.A.Nos.317, 318 and 219 of 1976 also the properties involved in this case is a private forest. When the said declaration passed by the Tribunal got confirmance with the verdicts of this Court and then by the Hon'ble Apex Court it should bar a re-adjudication of the said question on the principles of issue estoppel. M.F.A. (Forest)No.61 of 2015 10 7. Now, we will proceed to consider the question whether the Tribunal was right in holding that in the light of Ext.B3 order O.A.No.6 of 2009 is barred by the principles of _res judicata_ embodied in Section 11 of C.P.C. In the decision in **Satyadhyan Ghosal and Ors.** ## v. **Smt. Deorjin Debi and Anr. (AIR 1960 SC 941)** the Hon'ble Apex Court held as follows:- “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a respondent is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter- whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S.11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original courts as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.” ## In **Sulochana Amma** v. **Narayanan Nair (AIR 1994 SC 152)** , the Hon'ble Apex Court held that Section 11 of C.P.C. will apply to all judicial proceedings whether civil or otherwise and it would equally apply to quasi judicial proceedings of the Tribunals. In the light of the decision in **Satyadhyan Ghosal's** case (supra) it has to be held that the principles of _res judicata_ embodied in Section 11 of C.P.C. are also M.F.A. (Forest)No.61 of 2015 11 applicable to a quasi judicial proceedings of the Tribunal. The question whether principles of quasi judicial proceedings are applicable to Forest Tribunals is no more _res integra_ . A Division Bench of this Court in **Ayichutty's** case (supra) held that the principles of _res judicata_ embodied in Section 11 of C.P.C. would be applicable to the proceedings before the Forest Tribunals. In the light of the aforesaid decisions, the finding of the Tribunal that the principles of _res judicata_ embedied under Section 11 of the C.P.C is applicable to proceedings before the Forest Tribunal, cannot be said to be an erroneous finding or an illegal conclusion of law. In fact, it is the rightful and lawful conclusion arrived at by the Tribunal based on the enunciation of law by this Court as also by the Hon'ble Apex Court. Therefore, the sole question to be considered is whether the facts of this case would justify the finding of the Tribunal that O.A.No.6 of 2009 is barred by _res judicata_ in the light of Ext.B3. 8. A factual scrutiny would undoubtedly show that the properties involved in O.A.Nos.317, 318 7 319 of 1976 , covered by Ext.B3, and O.A.No.6 of 2009 are one and the same. The earlier set of O.As were moved by the co-owners of the properties. The appellants' father was one among the co-owners of the said property. In such circumstances, merely because their father namely Kunhammed was not a party to those O.As which culminated in Ext.B3 order cannot be M.F.A. (Forest)No.61 of 2015 12 raised as a ground to canvass the position that Ext.B3 could not operate as _res judicata_ . The said position would be revealed by a bare perusal of Section 11 of C.P.C. Needless to say that before the plea of _res judicata_ could be given effect the following conditions should be proved:- - (i) That the litigating parties must be the same; - (ii) that the subject matter of the suit also must be identical; - (iii) that the matter must be finally decided between the parties; and - (iv) that the suit must be decided by the court of competent jurisdiction.” A perusal of the provisions under Section 11 of C.P.C. would reveal that it cannot be said that the parties in the former suit and parties in the subsequent suit should be the same in order to operate the earlier judgment as _res judicata_ . If the litigating parties in the subsequent suit litigate under the same title Section 11 of C.P.C. should apply. The discussions made hereinbefore would reveal that the parties herein who are the sons of one of the co-owners of the properties, namely, Kunhammed, cannot be heard to contend that merely because their father was also a co-owner of the properties along with Mammootty, Rayin and Kunhayammu, they are not bound by Ext.B3 order. In other words, they cannot be heard to contend that Ext.B3 order could not operate as _res judicata_ in O.A.No.6 of 2009. The Tribunal has elaborately considered the question whether the properties involved in M.F.A. (Forest)No.61 of 2015 13 O.A.Nos.317, 318 & 319 of 1976 and the properties involved in O.A.No.6 of 2009 are one and the same. We do not find any reason to interfere with the factual finding made by the Tribunal in the light of the evidence on record. The upshot of the discussion is that this appeal is liable to fail. In the result, this appeal is dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS