M.F.A(Forest).172/2004

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 3[RD] DAY OF JANUARY 2023 / 13TH POUSHA, 1944 MFA (FOREST) NO. 172 OF 2004** **AGAINST THE ORDER IN OA 53/2000 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. - BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **RESPONDENTS/APPLICANTS:** - 1 RAMAN(DIED), S/O.KUNDUKAVIL CHAMU, MANNUR AMSOM, DESOM, P.O. MANNUR, PALAKKAD. [ADDL.R9 TO R11 IMPLEADED) - 2 BALAKRISHNAN SO. KUNDUKAVIL CHAMU., (DIED) ADDL R12 TO R16 IMPLEADED. - 3 RAMAKRISHNAN DIED. - 4 GIRIJA. - 5 RAMDAS. - 6 NARAYANAN. - 7 GEETHA. - 8 BINDU W/O. SURESH. - 9 **ADDL.R9** .SMT.PARVATHY, (DIED), D/O.RAMAN, RESIDING AT KUNDUKAVIL, MANNUR AMSOM DESOM, P.O.MANNUR, PALAKKAD. - 10 **ADDL.R10** .DEVAKY, D/O.RAMAN, -DO- -DO- - 11 **ADDL.R11** . RAMAKRISHNAN, S/O.RAMAN, -DO- -DO- [THE CAUSE TITLE IS AMENDED BY ADDING THE NAMES OF ADDL.RESPONDENTS 9 TO 11 AS PER ORDER DTD 12.01.2007 ON I.A.3560/05] M.F.A(Forest).172/2004 2 - 12 **ADD.R12** . SATHEEDEVI, W/O.LATE BALAKRISHNAN, M.M.NIVAS, KADUMTHURUTHY, YAKKARA, PALAKKAD. - 13 **ADDL.R13** .MOHAN DAS.K.B., S/O.LATE BALAKRISHNAN, M.M.NIVAS, KADUMTHURUTHY, YAKKARA, PALAKKAD. - 14 **ADDL.R14.** GEETHA, D/O.LATE BALAKRISHNAN, M.M.NIVAS, KADUMTHURUTHY, YAKKARA, PALAKKAD. - 15 **ADDL.R15** .USHA, W/O.LATE MURALIDAS.K.B., M.M.NIVAS, KADUMTHURUTHY, KANNADI, YAKKARA, PALAKKAD. - 16 **ADDL.R16** .VAISHNAV, S/O.LATE MURALIDAS.K.B., M.M.NIVAS, KADUMTHURUTHY, YAKKARA, PALAKKAD. THE LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL R12 TO R16 AS PER ORDER DATED 31/10/2022 IN IA 1790/13. - 17 **ADDL.R17.** SREEDHARAN.K.R., AGED 65 YEARS, SREERAM COFFEE HOUSE, CLUB ROAD, KOTHAGIRI, TMILNADU 643217. - 18 **ADDL.R18** . KOMALAM, AGED 60 YEARS, SURYA NIVAS, PLOT NO.228/112, STREET NO.8, VIRAT NAGAR, BORSI, DURG, CHATTUSGARAH - 491 001. - 19 **ADDL.R19.** SATHYABHAMA, AGED 56, W/O.NARAYANAN, KOVILANGAL HOUSE, GS SADAN POST, PATHIRI PALA, PALAKKAD- 673902 - 20 **ADDL.R20** .SIVADASAN.K.R., AGED 54, KUNDURKONAPURAM HOUSE, THENUR.P.O., PARALI, PALAKKAD-678 612. - 21 **ADDL.R21.** AMBUJAN, AGED 50, MUTHANKKADU HOUSE, KANAMPARIYARAM, MANKARA, PALAKKAD- 678 613. - 22 **ADDL.R22.** SREEJA DEEPU, AGED 47, MIG2, 109, OLD BORIS, DURG, CHATTISGARH - 491 001. THE LEGAL HERIS OF THE DECEASED 9TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 17 TO 22 AS PER ORDER DATED 23.12.2022 IN IA 1/2022. - BY ADVS. PRABHA R.MENON - M.KRISHNAKUMAR THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 03.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A(Forest).172/2004 3 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A(Forest).No.172 of 2004 -------------------------------------Dated this the 3[rd] day of January, 2023** **J U D G M E N T** ## Jayachandran, J. **1.** An original application preferred under Section 8 of Act 26 of 1971 in the year 1974 has not reached a judicial conclusion yet. O.A. No.753 of 1974 preferred by the respondents herein was allowed originally as per order dated 18.08.1976. The State preferred a review vide I.A. No.223 of 1987, which was allowed and the original application was dismissed. Respondents/applicants preferred M.F.A.No.983 of 1988 before this Court, which was allowed vide a common judgment and the case was remanded to the Tribunal for consideration afresh. The matter was taken on files and renumbered as O.A.No.53 of 2000. As per the impugned order dated 16.10.2003, the Tribunal allowed the M.F.A(Forest).172/2004 4 original application holding that the applicants are entitled to exemption under Sections 3(2) and 3(3) of Act 26 of 1971. **2.** Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) and Smt.Prabha R. Menon, learned counsel for the respondents. Perused the records. **3.** Learned Special Government Pleader submitted that, in so far as the exemption under Section 3(2) of the Act is concerned, the applicants failed to prove that they held the property in question as owners under their personal cultivation, as on the date of vesting, i.e. 10.05.1971. As regards the exemption under Section 3(3) of the Act, it was contended that the registered document of title, Ext.A1, propounded by the applicants was one executed after the appointed day, thus, failing to answer the requirements of Section 3(3) of the Act. The contention that the schedule properties are not private forest could not be driven home by the applicants. As regards the claim under Section 3(2) or M.F.A(Forest).172/2004 5 Section 3(3) of the Act, learned Special Government Pleader pointed out that the use of the scheduled property for a purpose ancillary to cultivation, as has been pleaded in the original application, cannot be recognized. User for ancillary purpose is recognized only for the purpose of exclusion under Section 2(f)(1) (i)(C). The Tribunal misread Ext.C1 commission report. It was also pointed out that the entitlement for exemption found under both Sections 3(2) and 3(3) cannot co-exist together. Besides, the finding of the Tribunal that only a certain extent of land was found to be under cultivation cannot be a reason to hold that the entire extent is liable to be exempted, either under Section 3(2) or under Section 3(3) of the Act. Under Section 3(2), the language employed is “so much extent” of land comprised in private forests held for personal cultivation; and in S.3(3), the language is “so much extent” of private forests held with intent to cultivate. Therefore, it was incumbent upon the applicants to measure out, demarcate and identify such M.F.A(Forest).172/2004 6 extent of land under cultivation, so as to claim the benefit of Section 3(2) or Section 3(3) of the Act. It should have been found by the Tribunal that the reference in the prior deed to Ext.A1 that there was oral lease in favour of the predecessor of the first applicant was of no avail when the requirements of Section 3(2) or Section 3(3) of the Act is concerned. The version of PWs.1, 3 and 4 does not inspire confidence and the Tribunal grievously erred in believing the same. In fact, the very description of the property in Exts.A1 and A2 would belie the applicants version as regards cultivation. On such premise, learned Special Government Pleader seeks to set aside the impugned order. **4.** Per contra, learned counsel for the respondents/applicants argued to sustain the impugned order. It was submitted that Ext.A1 registered document is of the year 1973 and Ext.A2 partition deed was of the year 1975. The factum of the jenmi obtaining the schedule properties, along with other large extents, in M.F.A(Forest).172/2004 7 an auction conducted in execution of the decree in the suit O.S.26/1934 of the Sub Court, Palakkad and that it was partitioned by and between the family members of the jenmi in the year 1959 by virtue of a registered partition deed, are made mention of in Ext.A1 document. The applicants' case that the scheduled properties were outstanding on lease is also specifically recited in Ext.A1, wherefore, the requirements of the Section is adequately satisfied is the contention of the learned counsel. The applicants were deprived of the possession of the property since the year 1974, which answers the absence of adequate cultivation in the schedule properties at a time when the Commissioner visited the property in the year 1987. Learned counsel fervently submitted that the long and settled possession of the applicants, as could be seen from the recitals in Ext.A1, should not be unsettled on technical and specious grounds. Learned counsel specifically relied upon Ext.A4, a _puncha_ chit, which would demonstrate cultivation in the scheduled property by the original M.F.A(Forest).172/2004 8 applicant. As against the contention that Ext.X1 is the photostat copy of the partition deed, learned counsel pointed out that the original was produced along with the photostat copy at the time of adducing evidence, where after, the original was got returned by virtue of a separate application and an order passed in the same. Ext.X1 is, therefore, not liable to be eschewed on that ground. On such premise, learned counsel would seek to sustain the impugned order. **5.** Having heard the learned counsel appearing on both sides, we will first address the issue as to whether the scheduled property stands excluded by virtue of any of the provisions of Section 2(f)(1) of the Act. Although, the original applicant [now no more] canvassed a contention in the original application that the scheduled property is not a private forest, no evidence is produced in support thereof. In this context, it is necessary to refer to the specific plea of the applicant, as espoused in the original application. According to the applicant, the scheduled properties M.F.A(Forest).172/2004 9 were taken on lease by him for rent of Rs.15/- and that, he had been cultivating chama, gingelly, black gram etc seasonally. Other portions of the scheduled properties were used for seed beds for raising seedlings. The petitioner had raised miscellaneous types of trees such as Oduku, Marutha, Pullani and other similar trees intended for the purpose of green manure. The application is silent as to the date from which the petitioner took the scheduled properties on lease. However, in column no.(G), the ownership to the land is traced pursuant to the death of their father. Apart from the exclusion claimed under Section 2(f)(1)(B), (C) or (D) as the case may be, the applicant also claimed exemption specifically under Section 3(2) of the Act. **6.** The Tribunal found that the scheduled properties are lands to which M.P.P.F. Act applied before the appointed date. No serious contention was raised before us by the learned counsel for the appellants in so far as that aspect is concerned. We therefore confirm the said finding of the Tribunal. M.F.A(Forest).172/2004 10 **7.** With this prelude, let us examine whether the applicants are entitled to the exclusion under Section 2(f)(1)(B), (C) or (D). We straight away find that sub-clause (B) is not applicable, in as much as, the original applicant has no claim with regard to any cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon. We also rule out the possibility of a claim under sub-clause (D), in as much as, there is no sign of a building or lands appurtenant, which are necessary for to the convenient enjoyment or use of such building. Now, the issue boils down to the applicability of sub-clause (C), where the requirement is that the land should be principally cultivated with cashew or other fruit bearing trees or with any other agricultural crop. Even going by the very showing in the original application, there is nothing to indicate the principal cultivation of any agricultural crop, the claim being 'seasonal' cultivation of chama, gingelly, black gram etc. The expression “principally cultivated with” M.F.A(Forest).172/2004 11 received interpretation from a Division Bench of this Court in **State of Kerala** v. **Susheeladevi Amma** [1987(1) KLT SN 58], wherein it was held that a land cannot be said to be used principally for growing any category of trees, if the number of such trees when compared to the extent is small. It was further held that, it is the principal user of the plot, as a whole, that is to be regarded as a test. Again in **Ammukunhi Amma and Others v. State of Kerala and Others** [2016(3) KHC 52], another Division Bench held that the cultivation has necessarily to be to a substantial extent, so as to make the property principally cultivated and that occurrence of the cultivation here and there in a large extent of the property is not sufficient to hold that it was principally being cultivated. **8.** The Division Bench also referred to the decision made by an earlier Division Bench of this Court in M.F.A. No.78 of 1983, where it was held that, unless there were at least half the usual number of trees per acre of the respective species, the area could not be M.F.A(Forest).172/2004 12 considered as “principally planted” with those crops. These decisions were again quoted with approval by yet another Division Bench of this Court in **State of Kerala and Others** v. **N.Rajagopal** [2018 (5) KHC 128]. **9.** Another relevant aspect is that the lands which are used for ancillary purposes or for the convenient enjoyment of the land which is being principally cultivated are not exempted under sub-clause (C), unlike sub-clause (B) and sub-clause (D). Therefore, the claim that the portions of the scheduled property were used as seedbeds for raising seedlings or for that matter, the claim of raising miscellaneous trees like Oduku, Marutha, Pullani etc. for the purpose of green manure cannot be countenanced or contemplated within the scope of sub-clause (C). Principal cultivation with respect to any agricultural crop has to be pleaded and established. In the circumstances, this Court finds that the claim for exclusion under Section 2(f)(1) is not maintainable. **10.** With this, we will address the claim for exemption under Section 3(2) of the Act 26 of 1971. M.F.A(Forest).172/2004 13 Three important requirements emanating from Section 3(2) of the Act are: (i) The applicant should hold the private forest as an owner. (ii) Such property should be under his personal cultivation. (iii) The extent of the property should be within the ceiling limit under the Kerala Land Reforms Act. **==> picture [439 x 13] intentionally omitted <==** original applicant held the property as an owner. Owner is defined in Section 2(c) of the Kerala Private Forest (Vesting and Assignment) Act as follows: “owner”, in relation to a private forest, includes a mortgagee, lessee or other person having right to possession and enjoyment of the private forest.” The specific case put forward in the original application is that the scheduled properties were outstanding in their favour pursuant to an oral lease and the kanam rights over the said properties were conveyed through the original applicant as per Ext.A1 M.F.A(Forest).172/2004 14 kanam sale deed. The factum of oral lease is very much recited in Ext.A1. The lease deed was executed by one Bhaskaranunni Mannadiyar. Going by the recitals in Ext.A1, the scheduled properties were obtained in an auction conducted in execution of the decree in the suit O.S.No.26/1934 of the Sub Court, Palakkad and that, it was partitioned by and between the family members in the year 1959 by virtue of a registered deed, where under, the scheduled properties were separately allotted to the share of above said Bhaskaranunni. The said Bhasakaranunni was examined as PW2, who vouched the above facts. There is no serious cross examination on this aspect. The fact that the original applicant was a lessee of the scheduled properties has been fairly established by the evidence adduced. In as much as the lessee of the scheduled properties comes within the ambit of 'owner' as defined in Section 2(c) of the Vesting Act, we find that the primary requirement under Section 3(2) of holding the property as an owner is satisfied. M.F.A(Forest).172/2004 15 **12.** In the given facts, although Ext.A1 document transferring the kanam rights in favour of the original applicant were executed after the cut off date, the specific claim propounded in the original application is that the applicant was in cultivation of the scheduled properties as on the date of vesting. **13.** Primarily, we find that, Ext.A1 document does not lend any support to prove the cultivation, if any, in the scheduled properties as on the date of vesting. It merely signifies that the kanam rights over the properties have been conveyed to the original applicant. Section 2(22) of the Kerala Land Reforms Act defines 'kanam' thus; (a) the transfer for consideration, in money or in kind or in both, by a person of an interest in specific immovable property to another person, and described in the document evidencing the transaction as kanam or kanapattam, the incidents of which transfer include - (i) a right in the transferee to hold the said property liable for the consideration paid by him or due to him; M.F.A(Forest).172/2004 16 (ii) the liability of the transferor to pay to the transferee interest on such consideration unless otherwise agreed to by the parties; and (iii) payment of michavaram or customary dues, or renewal on the expiry of any specified period; or (b) the transfer for consideration in money or in kind or in both by a person of an interest in specific immovable property to another person for the latter's enjoyment, whether described in the document evidencing the transaction as otti, karipanayam, panayam, pattapanayam, nerpanayam or by any other name and which has the incidents specified in sub-clauses (a)(i) and (a)(ii) and also one or more of the following incidents:- (A) renewal on the expiry of any specified period; - (B) payment of michavaram; - (C) payment of customary dues; xxxxxx Explanation.- For the purposes of this clause, where there has been no stipulation in the document evidencing the transaction for renewal on the expiry of any specified period, but there has been a renewal or payment of renewal fees, it shall be deemed that there has been a provision for such renewal in the document;]”. M.F.A(Forest).172/2004 17 It could be seen from the above that kanam only means the transfer of interest in specific immovable property by one person to another for consideration. User of the property is specifically for cultivation is not indicated in Section 2(22) of the Kerala Land Reforms Act. **14.** Ext.A1 is a partition deed of the year 1975 executed by the original applicant Raman and his brothers as per which the scheduled properties were allotted to the exclusive share of Raman. We find that the said document is of no avail in the context of proof of cultivation. Exts.A3 to A7 are ' _puncha chits_ ', either in the name of original applicant, Raman or in the name of his father Chamu. These set of documents were heavily relied upon by the respondents to prove cultivation in the property. However, the Tribunal found that but, for Ext.A4, all other _puncha chits_ pertains to properties comprised in survey numbers other than those of the scheduled properties. Now coming to Ext.A4, we are of the opinion that the same cannot vouch M.F.A(Forest).172/2004 18 cultivation in the scheduled property as on the date of vesting, for the reason that, Ext.A4 is of the year 1952. Ext.A4 is not a document proximate in time with respect to the cut off date. What is required to be established in terms of section 3(2) of the Act is that, property was in the personal cultivation of the applicant as on the date of vesting. Ext.A4 by itself is not sufficient to drive home such factual premises. **15.** What remains is the oral evidence adduced by the applicants. PWs.1 and 3 are the children of Raman namely Ramakrishnan and Balakrishnan and PW4 is the brother of Raman. PW1 only makes a passive reference about the cultivation in the property. PWs.3 and 4 spoke of the cultivation made in the property. As already indicated in this judgment, the versions of PW3 and PW4 cannot be taken stock of for the reason that, their testimonies are interested. There, the applicants themselves got impleaded pursuant to the death of original applicant, Raman. No independent credible evidence has been adduced by the applicant in proof of M.F.A(Forest).172/2004 19 cultivation. Labourers, if any, who had done some work in the property was not examined. No document in proof of agricultural activity, if any, conducted in the scheduled properties has been produced. **16.** One another circumstance from which we draw an adverse inference in the context of cultivation in the scheduled properties is the fact that, no commission was taken immediately after filing original application. In respect of an original application filed in the year 1974, the commission is seen taken only in the year 1987. The omission cannot be taken as a casual one. The applicant represented by a lawyer was quite aware of the legal requirement to prove the concomitant ingredients of the exclusion under Section 2(f)(1) and that of an exemption under section 3(2), both of which demands proof of cultivation. The only reasonable inference is that the facts which would have been disclosed, if an immediate commission was taken, may not favour the applicant. ## M.F.A(Forest).172/2004 20 **17.** That apart, a reference to Ext.C1 commission report would only vouch against the applicants' case. The Commissioner found in paragraph no.3 that, about 75 cents of land is rocky, completely unsuitable for cultivation. In respect of 50 cents, the Commissioner found some indications of 'varambas' (mud partition) for the purpose of cultivation. The vegetation which exists in the remaining property are 'teak wood', 'oduku', 'marutha', 'palmyrahs', 'venga', 'irul' etc,. The following fact reported by the Commissioner in paragraph no.3 (end) is relevant and extracted below. “ **Sn `mK¯p Irjn sNbvXncp¶Xmbn FXnÀI£nIÄ Ft¶mSv ]dsª¦nepw, Irjn sNbvXncp¶Xnsâ bmsXmcp ASbmf§fpw F\n¡v ImWm³ IgnªnÃ.** ” We, therefore, conclude that, Ext.C1 commission report is of no avail to prove the cultivation in the property. **18.** We therefore find that, the applicant failed to prove that the scheduled properties were in their personal cultivation as on the relevant date, which finding lead to the conclusion that the exemption under ## M.F.A(Forest).172/2004 21 Section 3(2) of the Act is not proved. We, therefore, allow this appeal and set aside the judgment impugned of the learned Tribunal. The O.A. will stand dismissed. ## **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** Sbna/