M.F.A.(Forest) No.179 of 2009 & CRP No.246 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 MFA (FOREST) NO. 179 OF 2009** **AGAINST THE ORDER DATED 02.12.2008 IN O.A.NO.85/1998 OF THE** ## **FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF VESTED FORESTS, OLAVAKKODE PALAKKAD DISTRICT.** - **BY SRI.NAGARAJ NARAYANAN, SPL.GOVERNMENT PLEADER** ## **RESPONDENTS/APPLICANTS:** - **1 MANI, S/O.KUNJAYI, KADAMANCHOLA, VAVULLIAPURAM, ALATHUR, PALAKKAD.** - **2 VELAYUDHAN -DO-** - **3 THANKAPPAN -DO-** - **4 KRISHNA BABU -DO-** - **5 PARAMESWARAN -DO-** - **6 KUNJAYI, S/O.NAKAN, KADAMANCHOLA, VAVULLIAPURAM, ALATHUR, PALAKKAD.** **BY ADVS. SRI.P.M.NEELAKANDAN SRI.P.B.KRISHNAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.11.2022, ALONG WITH CRP NO.246/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.(Forest) No.179 of 2009 & CRP No.246 of 2011** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944** **CRP NO. 246 OF 2011** **AGAINST THE ORDER DATED 01.07.2010 IN CC NO.614/1973 OF THE** **TALUK LAND BOARD, ALATHUR** ## **REVISION PETITIONER/RESPONDENT:** **STATE OF KERALA, REPRESENTED BY ADDL.SECRETARY (REVENUE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **BY SRI.NAGARAJ NARAYANAN, SPL.GOVERNMENT PLEADER** ## **RESPONDENTS/PETITIONERS:** - **1 K.MANI, S/O.LATE KUNCHAYI, KADAMANCHOLA, THODUKADU, VAVULLIAPURAM, ALATHUR, PALGHAT DISTRICT. PIN-678 541.** - **2 K.VELAYUDHAN, S/O.LATE KUNCHAYI, KADAMANCHOLA, THODUKADU, VAVULLIAPURAM, ALATHUR, PALGHAT DISTRICT. PIN-678 541.** - **3 K.RAJAN, S/O.LATE KUNCHAYI, KADAMANCHOLA, THODUKADU, VAVULLIAPURAM, ALATHUR, PALGHAT DISTRICT. PIN-678 541.** - **4 K.THANKAPPAN, S/O.LATE KUNCHAYI, KADAMANCHOLA, THODUKADU, VAVULLIAPURAM, ALATHUR, PALGHAT DISTRICT. PIN-678 541.** - **5 K.KRISHNAVASU, S/O.LATE KUNCHAYI, KADAMANCHOLA, THODUKADU, VAVULLIAPURAM, ALATHUR, PALGHAT DISTRICT. PIN-678 541.** - **6 K.PARAMESWARAN, S/O.LATE KUNCHAYI, KADAMANCHOLA, THODUKADU, VAVULLIAPURAM, ALATHUR, PALGHAT DISTRICT. PIN-678 541.** **M.F.A.(Forest) No.179 of 2009 & CRP No.246 of 2011** **3** **7 SOMASUNDARAN, S/O.LATE R.K.SUKUMARAN, SANGEETH, YAKKARA, KINASSERY.P.O., PALAKKAD. PIN-678 707. 8 MOHAN DAS. S/O.LATE R.K.SUKUMARAN, MANAKKULAM ROAD, NOORANI.P.O., PALAKKAD. PIN-678 004.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.O.RAMACHANDRAN NAMBIAR SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.11.2022, ALONG WITH MFA (FOREST) NO..179/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.(Forest) No.179 of 2009 & 4 CRP No.246 of 2011** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(Forest) No.179 of 2009 & CRP No.246 of 2011** **--------------------------------------------Dated this the 21[st] November, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** **The appeal arises from the order of the Forest Tribunal and the revision petition from the order of the Taluk Land Board. The seemingly unconnected cases were posted together since the respondents in the revision petition are the legal heirs of the person, who transferred the property to the 6[th] appellant, which is the subject matter of the proceedings before the Forest Tribunal. We shall dispose of both the cases by this common judgment.** **M.F.A(F) No.179 of 2009** **2.The application under S.8 of the Kerala Private Forests [Vesting and Assignment] Act, 1971 [for brevity, 'the Vesting Act'] was concerned with** **M.F.A.(Forest) No.179 of 2009 & 5 CRP No.246 of 2011** **10 Acres of land in Survey Nos.152/2, 154/1, 154/2, 151/4 and 152/1 of Vavulliapuram Amsom in Alathur Taluk, Palakkad District. The applicants, who were originally the applicants 1 to 5, later joined by their father, the 6[th] supplemental applicant, claimed that the scheduled land is not liable to be vested under S.3(1) of the Vesting Act and alternatively it is entitled to exemption under S.3(2) of that Act. The Forest Department asserted the lands to be covered under the Madras Preservation of Private Forests Act, 1949 [for brevity, 'the MPPF Act'] and the land forming part of Kuthannur-Vavulliapuram malavaram having an extent of 286.3541 hectares of land. The transactions of the land asserted by the applicants were stated to be in violation of the provisions of the MPPF Act. The respondents also argued that the application itself is barred by limitation.** **3. Initially the Forest Tribunal dismissed the application, against which an appeal was filed, in which this Court remanded the matter for** **M.F.A.(Forest) No.179 of 2009 & 6 CRP No.246 of 2011** **consideration as to whether, as on the relevant day the property was liable to be vested or not. The 1[st] applicant examined himself as PW1 and produced Exts.A1 to A5 documents. PW2, the Village Officer, Tarur II Village, marked Exts.X1 & X2 series, corelating the resurvey numbers to the original survey numbers. PW3 was a resident of Vavulliapuram Village, who had knowledge of the status of the property scheduled. Two commission reports were marked as Exts.C1 & C4 and the respective sketches marked were Exts.C2,C3 & C5.** **4. The Tribunal traced the title of the scheduled land to Poomulli Mana, who had** _**jenmam**_ **and from whom one Komu, S/o.Moosakkutty obtained** _**kanam**_ **right, which stood assigned to Krishnan, S/o.Kandu, the last of which was as per Ext.A1 document. After Krishnan's demise, his sons Sukumaran and Narayanan partitioned the property as per Ext.A2, before which the possession of the properties was handed over to the 6[th] applicant on a transfer of the** _**kanam**_ **right. The said transaction in the year 1954** **M.F.A.(Forest) No.179 of 2009 & 7 CRP No.246 of 2011** **is said to have been affirmed and ratified by Ext.A3 document of the year 1972, executed on 11.02.1972. The properties scheduled as per Exts.A1 document was described as '** _**Kadamanchola**_ **' in page No.20 item No.28 and the very same property was described as item No.15 in C schedule to Ext.A1 partition deed. Ext.A3, by which the land was assigned to the 6[th] applicant on lease spoke of a** _**panampattam**_ **[** _**pana**_ **in the vernacular means the palmyra tree, which was the cultivation intended]. According to PW1, there is a rocky area and paddy fields on the south, a paddy field on the west, rubber plantation on the north and on the eastern boundary the undisputed property of the 6[th] applicant and another property of Muhammedkutty.** **5. Both Exts.C1 & C4 reports were submitted by the very same Commissioner. The extent of the property was indicated to be 10.29 Acres in Ext.C4 and the same was shown in red colour in Ext.C5 sketch. The boundaries of the property as evidenced from Ext.C4 is in consonance with the** **M.F.A.(Forest) No.179 of 2009 & 8 CRP No.246 of 2011** **boundaries stated by PW1. The Tribunal found, based on the commission report and the co-relation of the survey numbers made by PW2, the Village Officer, that the title to the property is undisputed. On the aspect of cultivation, the evidence of PW3; who was 70 years old and also a resident of Vavulliapuram Village, regarding the boundaries and also the cultivation was accepted by the Tribunal.** **6. The scheduled property was found to be surrounded by developed lands contrary to the statements of RW1 that there are vested forests on the north, west and south of the said property. RW1's evidence was rejected and again the commission report was referred to. The Commissioner reported palmyra trees in the scheduled property having age between 5 to 30 years as also other trees like** _**elavu, veppu**_ **and cashew. There was no forest species in the scheduled property and the presence of palmyra trees validated the recital in Ext.A3, of the lease being a** _**panampattam**_ **. To find that the property is not one to which the MPPF Act** **M.F.A.(Forest) No.179 of 2009 & 9 CRP No.246 of 2011** **applies, the Tribunal found that there are no proceedings taken against the conveyance asserted by the applicants, which would be a natural consequence of the transfers effected without previous sanction of the District Collector. Immediately we have to notice our dissent, insofar as the finding of the Tribunal that the absence of a sanction would indicate that the property transferred as per Exts.A1 & A2 is not a forest. However, admittedly the applicants did not lead any evidence to the effect that the scheduled lands are not covered by the MPPF Act; which it was their bounden duty. As per** _**State of Kerala v. Kunhiraman [1990 (1) KLT 382]**_ **,** _**State of Kerala v. Chandraleka [1995 (2) KLT 152 (FB)]**_ **and** _**State of Kerala v. Popular Estates [(2004) 12 SCC 434]**_ **the applicant has to prove the fact asserted by them in the application.** **7. Be that as it may, it is the finding of the Tribunal that there is cultivation found in the property, supported by the recitals in the various** **M.F.A.(Forest) No.179 of 2009 & 10 CRP No.246 of 2011** **documents produced. The 6[th] applicant obtained possession of the property long before the Vesting Act and immediately after the appointed day, within about 7 months Ext.A3 document was executed. Further it is also to be noticed that the properties in the possession of the 6[th] applicant was excluded from the ceiling limits of Sukumaran and Narayanan, the predecessors-in-interest, as per the order of the Taluk Land Board challenged in the C.R.P. We cannot but notice that** _**Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221]**_ **and** _**Popular Estates**_ **(** _**supra**_ **) found the proceedings of the Taluk Land Board to be yet another piece of evidence which could substantiate cultivation in the property.** **8. At this juncture learned Special Government Pleader Sri.Nagaraj Narayanan pointed out that with respect to the very same property the 6[th] applicant had filed an earlier application under S.8, which was rejected by Annexure 2 order. It is the contention of the State that the property** **M.F.A.(Forest) No.179 of 2009 & 11 CRP No.246 of 2011** **scheduled in both the cases are the very same properties and, in that circumstance, the present order is vitiated by fraud, for reason of suppression of material facts. It is also pointed** **out that the dubious device employed by the applicants is evident from the fact that the original application was filed by the three children of the 6[th] applicant and later the 6[th] applicant was impleaded as the supplemental 3[rd] respondent, who stood transposed as the 6[th] applicant.** **9. Sri.P.B.Krishnan, learned Counsel for the applicant/respondents pointed out that** _**res judicata**_ **cannot be urged at this stage without the same being urged before the Tribunal as has been held in** _**V.Rajeswari v. T.C.Saravanabhava [(2004) 1 SCC 551]**_ **. The exception carved out by the Hon'ble Supreme Court, in the aforesaid decision, is when the lower court having permitted the issue to be raised, despite absence of pleadings; which also was not available in the present case. It is also** **M.F.A.(Forest) No.179 of 2009 & 12 CRP No.246 of 2011** **pointed out from Exts.A2 & A3 documents that admittedly the 6[th] applicant had possession of more than 25 Acres and while the earlier application was with respect to 9 Acres, the present application is with respect to 10 Acres, which is a totally different property. It is also pointed out that the order of the Land Board challenged in the revision petition also speaks of 15 Acres; 7.5 Acres each being excluded from the account of Sukumaran and Narayanan, the declarants before the Taluk Land Board, Alathur.** **10. Obviously the Forest Department was aware of the earlier order and they ought to have raised an issue of** _**res judicata**_ **before the Tribunal. However, the applicants too were aware of the proceedings and it was only proper that they disclosed the earlier proceedings before the Tribunal. Especially when they have a contention that the properties scheduled in the later proceedings is different from that scheduled in the earlier one by the 6[th] applicant, who was the sole** **M.F.A.(Forest) No.179 of 2009 & 13 CRP No.246 of 2011** **applicant in the earlier proceedings. Even if the question of** _**res judicata**_ **cannot be raised for the first time in appeal, we cannot but observe that there is suppression of material facts which amounts to a fraud played on the Tribunal; if the properties are the same.** **11. In such circumstances we are constrained to set aside the order of the Tribunal only for the consideration of whether the identity of the property is the same or different as now argued by the applicants; ie: if the properties scheduled in the earlier O.A is similar to that scheduled in the instant O.A. Definitely there can be no declaration passed by the Tribunal at this stage if the properties are identical and even if some extent overlaps with the earlier properties scheduled, to the extent of overlap, there can be no declaration. We make it clear that if the Tribunal finds that the properties are two distinct lands, then necessarily the findings of the Tribunal in the present order cannot be overturned.** **M.F.A.(Forest) No.179 of 2009 & 14 CRP No.246 of 2011** **The applicant shall take steps before the Tribunal to establish that the properties are distinct and separate. The appeal is allowed and the matter remanded on the sole question of identity of the property.** **CRP No.246 of 2011** **12. The Taluk Land Board, by the impugned, order has considered two issues; (i) whether the declarant (Sukumaran, the predecessor in interest of the applicant) is entitled to more than 1/3 share of the property and (ii) whether Kunjayi, the 6[th] applicant in the appeal, had been in possession of 15 Acres of land in survey No.152/2, 154/2 & 147/B1 of Tarur II Village. We are not concerned with the first issue which was decided against the declarant. As far as the second issue is concerned, it was found that as per S.84 clause (3) of KLR Act, the transfer in favour of a person, who was a tenant of the holding before 27.07.1960 and continued to be so, till the appointed day under the Kerala Land Reforms Act would be entitled to** **M.F.A.(Forest) No.179 of 2009 & 15 CRP No.246 of 2011** **fixity of tenure. The depositions before the Land Board and the documentary evidence also supports the case of 15 Acres having been held by Kunjayi. The only question left open was with respect to the ceiling limit of the family of Kunjayi, which has to be agitated before the Taluk Land Board by Kunjayi. The Land Board after considering the entire matter, found that 7.5 Acres of land in the possession of Kunjayi will be excluded from the ceiling limit of Sukumaran, we find no infirmity in the said order and hence reject the CRP.** **Ordered accordingly. Parties to suffer their respective costs.** **Sd/-** ## **K.VINOD CHANDRAN, JUDGE** **Sd/-** ## **C.JAYACHANDRAN, JUDGE** **sp/21/11/2022**