MFA.No.389/2002 (C)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **&** **THE HONOURABLE MRS. JUSTICE K.HEMA** **TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929** **MFA.No. 389 of 2002()** **--------------------OA.204/1990 of FOREST TRIBUNAL, KOZHIKODE** **....................** ## **APPELLANT: (APPLICANTS Nos.2 TO 5 AND OTHER LEGAL RERESENTATIVES OF DECEASED APPLICANT No.1 WHO DIED AFTER THE DISPOSAL OF THE O.A):** **---------------------------------** **1. P.T.SREENARAYANAN UNNI,S/O.P.N.MENON, "INDEEVARAM", P.O.PUTHIYARA, CALICUT-4.** **2. P.T.SREEKUMARI, D/O. P.N.MENON, DEVI SADAN, PANNIYANKARA, CALICUT-3.** **3. P.T.SREEVALSAN UNNI, S/O.P.N.MENON, SREE SADAN, PANNIYANKARA, CALICUT-3.** **4. P.T.SREEDEVAN UNNI, S/O. P.N.MENON, "ROOP SAGAR", PANNIYANKARA, CALICUT-3(NAME WRONGLY SHOWN AS SREEDHARAN UNNI IN THE ORDER).** **5. P.T.SREEKUMARAN UNNI,S/O.P.N.MENON, NAIR HOUSE, MANNARKKAD, PALAKKAD DISTRICT.** **6. P.T.SREEDEVI, D/O. P.N.MENON, SREE SADAN, PANNIYANKARA, CALICUT-3.** **7. P.T.SREE BALA, D/O. P.N.MENON, SREE SADAN, PANNIYANKARA, CALICUT-3.** **BY ADV. SRI.N.N.SUGUNAPALAN (SR.) SMT.PREETHY KARUNAKARAN SRI.RAJESH R. KORMATH SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE** ## **M.F.A.No.389/2002 2** **RESPONDENTS:** - **------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.** **2. CUSTODIAN OF VESTED FORESTS,** - **EX-OFFICIO SPECIAL SECRETARY, AGRICULTURE FOREST DEPARTMENT, KOZHIKODE.** **BY SPL.GOVT.PLEADER SRI.M.P.PRAKASH** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/01/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **J.B.KOSHY & K.HEMA, JJ. ------------------------------M.F.A.NO.389 OF 2002 (C) ----------------------------------Dated this the 1[st] day of January, 2008 J U D G M E N T** ## **KOSHY,J.** Appellant is a partnership firm consisting of seven partners. They filed an application under Section 8 of the Kerala Private Forest (Vesting and Assignment) Act (in short 'Vesting Act'), for a declaration that 79 acres 68.5 cents of land in Survey No.186/1A1 of Kunnathidavaka Village described in the schedule is not a private forest and is not vested in the Government. The partnership firm purchased 100 acres of land from one Phathumma as seen from Ext.A47 document. In the document, it is stated that the estate was sold for cultivation of cardomom, rubber, coffee etc. It is also stated that earlier it was cultivated with such plantations. But that was destroyed. It was convinced that they can re-cultivate the same. Ext.A47 document is dated 15.5.1967 much prior to the enactment of Vesting Act. The fact that scheduled property is held by the MFA.389/2002 2 appellant, by registered title deed of the property is not seriously disputed. Kerala Private Forest (Vesting and Assignment) Act 1971 came into force with effect from 10.5.1971, the appointed day under the Act. The petitioner firm obtained the title of the property before the relevant date. All private forests are vested with the State under Section 3(1) of the Vesting Act. Whether the land was demarcated and notified or not, if the land is a private forest, unless it is exempted, is vested with the Government under Section 3(1). Section 3(2) provides exemption if the land is under personal cultivation of the owner. Section 3(3) gives further exemption that if the land is owned by a valid registered document executed before the appointed day and intended for cultivation and if the extent of land is below ceiling area under Section 82 of the Land Reforms Act. The tribunal found that there was no evidence of cultivation of the land on the appointed day and burden is on the appellants to prove that land is under personal cultivation to claim exemption under Section 3(2). Various Commissioners reports (Exts.C1, C2 and C4) produced show that there was no evidence of cultivation. Ext.C1 report was MFA.389/2002 3 dated 27.11.1993. Ext.C2 report was in 1998 and Ext.C4 was in 1999. It is the contention of the appellant that after the Act came into force they were not allowed to cultivate the land and the forest department destroyed cultivation and that is why the Commissioners were not able to find out any evidence of cultivation. Reminiscence of cultivation was also not seen by the Commissioners. But Ext.C4 report shows that part of the land was ready for cultivation and part of the land had no plants at all. There is also no evidence of wild trees or forest trees in the area other than planted accasia on part of the land. One boundary of the land was vested forest and others are private lands. Since there was no evidence of personal cultivation on the appointed day the appellants are not entitled to the benefit under Section 3(2). We agree with the above findings of the tribunal. Then the question is whether appellants are entitled to exemption under section 3(3) as they had intention to cultivate the land on the appointed day and they were holding the land by a registered deed. Appellants produced registration from the Rubber Board for cultivating 10 acres of land. The date of issue was 29.12.1967. The planting MFA.389/2002 4 licence was given to plant the land on 31.12.1967 much prior to appointed day (10.5.1971). Ext.A44 is the new rubber planting licence. Petitioner also relied on Ext.A45 which is an application for planting coffee. But there is no evidence to show that such application was filed before the Coffee Board. It is only a copy of application. After considering Ext.A44 tribunal found as follows: “To say that license was given to plant 10 acres of land with rubber is one thing and to say that 10 acres of land was cultivated with rubber is a different thing. The applicants have no case that they have cut and removed those rubber trees. Had 10 acres of land was cultivated with rubber in pursuance of Ext.A44 there ought to have been some rubber trees on the ground to evidence that planting. There is no case for the applicants there exists some rubber plants which were planted in pursuance of Ext.A44. In my opinion Ext.A44 shows the intention of the applicants to cultivate 10 acres of land with rubber.” Therefore the tribunal found that there was intention to plant 10 acres of land with rubber that, on the appointed day land was not cultivated. The claimants also produced various exhibits, Exts.A1 to A37 to show that they spent large amount MFA.389/2002 5 for planting the same through their Supervisor. It was found by the tribunal that their intention is to cultivate 10 acres of land. There is no case for the appellant in holding land in excess of the land ceiling area under the Land Reforms Act. They were holding the land by a registered deed executed prior to the enactment of the Vesting Act. Hence, we are of the opinion that in the normal course, they would have been allowed 10 acres of land as exempted land which the appellants had intention to cultivate before the appointed day under the Act. In this connection we also refer to the decision in _**Joseph v. State of Kerala (2007 (3) KLT 144 (SC)).**_ Apex Court held as follows: “Such intention on the part of the purchaser can be gathered from his conduct in regard to the development of land for making it fit for cultivation preceding to and subsequent to the date of vesting.” Here intention can be gathered by development of property and obtaining the planting licence, specially made for planting etc. MFA.389/2002 6 3. Now we will again come to the Commissioners report. Commissioners report and plan shows that the petitioner is in possession of the land which is marked as 'B'. According to PW1, they were in possession of 20 and additional acres of land and the Commissioner's marked it as 'B' portion in yellow colour which is only 8.2250 hectors, that means, 20 acres and 31[1] /2 cents. It has come out in evidence that out of the above land, 12.5 cents of land was already surrendered as excess land. According to the Commissioners, 20 acres and 31[1] /2 cents marked as 'B' (coloured yellow) in Ext.C5 Plan which is in possession of the appellants is inclusive of the above excess land surrendered. Therefore, excluding the land surrendered as excess land, they are in active possession of 7.85 acres. So the petitioners had intention to cultivate 10 acres of the land at the time of appointed day. But after excluding the surrendered land as the excess land, balance is 81.5 acres of land in the plot marked as 'B' in Ext.C5 Plan. Hence against a claim for 79 acres and 68.5 cents of land, claimants are entitled to get exemption of 7 acres and 81.5 cents only and it cannot be MFA.389/2002 7 disputed that they had intention to cultivate the above land and they had registered document in their favour even before the Act came into force. Hence they are entitled for a declaration that 7 acres and 85 cents of land in the portion marked as 'B' (out of 20 acres and 31[1] /2 cents coloured portion after deducting surrendered land of 12.5 acres) are exempted under Section 3(3) of the Vesting Act. Appeal is accordingly partly allowed. **J.B.KOSHY, JUDGE** **K.HEMA, JUDGE** prp ## **J.B.KOSHY & K.HEMA, JJ.** **--------------------------------------------------------** **M.F.A.NO.389 OF 2002 ()** **--------------------------------------------------------J U D G M E N T ---------------------------------------------------------** **1[st] January, 2008**