Muhammed Vapputty v. State of Kerala and The Custodian, Vested Forests

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944 MFA (FOREST) NO. 92 OF 2012** **AGAINST THE ORDER IN OA 70/2009 OF FOREST TRIBUNAL, KOZHIKODE APPELLANT/APPLICANT:** MUHAMMED VAPPUTTY, AGED 60 YEARS, KARIMBANODAN HOUSE, WORKING PRESIDENT,HADAYATHUL ISLAM SANGAM, POMBRA POST, KARAKURUSSI VIA, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.SREEKUMAR SR. SRI.S.VAIDYANATHAN ## **RESPONDENT/S:** 1 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY (FOREST & WILD LIFE), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 THE CUSTODIAN, VESTED FORESTS, 'ARANYA BHAVAN', FOREST COMPLEX, OLAVAKODE, PALAKKAD. BY ADVS. GOVERNMENT PLEADER ADVOCATE GENERAL OFFICE KERALA ## **OTHER PRESENT:** NAGARAJ NARAYANAN - SPL.G.P THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A(Forest).92/2012 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A(Forest).No.92 of 2012 -------------------------------------Dated this the 13[th] day of October, 2022** ## **J U D G M E N T** ## Jayachandran, J. **1.** The non suited applicant in a proceeding under Section 8 of the Kerala Private Forest Vesting and Assignment Act, 1971 [referred as “Vesting Act” hereinafter] is the appellant herein. As per the order under challenge dated 27.02.2012, the declaration sought for that the petition schedule property is not a private forest under the Vesting Act, and alternatively for the benefit of exemption under Section 3(2) and 3(3) of the Act, was dismissed. **2.** Heard Sri.S.Sreekumar, learned Senior Counsel for the appellant and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests), for the respondents. **3.** Learned Senior Counsel for the appellant submitted that the findings of the Tribunal are quite M.F.A(Forest).92/2012 3 contrary to the weight of evidence adduced by the appellant/applicant, as also, the commissioner's report. The finding that the disputed land was one to which the Madras Preservation of Private Forest Act, 1949 [referred as 'the M.P.P.F. Act' hereinafter] applied is erroneous. The Tribunal ought to have referred to the definition of 'forest' under Section 2(a) of the said Act, to find that the disputed land was not a waste, communal or notified land and hence, not one coming within the purview of the M.P.P.F. Act. Again, the Tribunal ought to have found that the applicant is entitled to the exclusion under Section 2(f)(1)(i)(C), since there exists positive evidence to show that the disputed property was planted with cashew and other fruit bearing trees. At any rate, it should have been found by the Tribunal that the applicant is entitled to the benefit of the exemption under Sections 3(2) and 3(3) of the Vesting Act. The finding of the Tribunal, that the applicant's title deed is not a registered one and hence not valid, is wholly misconceived. The Tribunal should have noticed that a ## M.F.A(Forest).92/2012 4 wakf deed is not required by law to be registered and found that Ext.A1 wakf deed is valid for all purposes, especially when the applicant's title was not disputed by the respondent/department. The Tribunal's finding based on Ext.C1 commission report that the schedule property has vegetation with the characteristic features of forest growth is completely contrary to the contents of Ext.C1 commission report. According to the learned counsel, the order of the Tribunal cannot be sustained in law and is, therefore, liable to be set aside. **4.** Learned Special Government Pleader argued to sustain the impugned judgment as one rendered in accord with the evidence adduced by the parties. It was pointed out that the requirement of Section 3(2) of the Act is a valid registered document of title, wherefore, it was incumbent on the part of the applicant to propound a registered and valid document. At any rate, there is no justification in not producing a certified copy of the decree, under which the applicant's predecessor claimed. According to the learned Special Government Pleader, the M.F.A(Forest).92/2012 5 finding of the Tribunal that property in question is one to which the M.P.P.F. Act applied and that, the applicant is not entitled to any exclusion thereof is perfectly legal. The same is the case with respect to the applicant's claim under Section 3(2) or 3(3) of the Act. In order to canvass the benefit of Section 3(2), the applicant should establish that, he held the schedule property as an “owner” under his personal cultivation. Similarly, to fall under Section 3(3), the applicant should hold the property as an 'owner under a valid registered document' of title, with the intention to cultivate the property. These ingredients having not been established in evidence, no infirmity or irregularity could be attached to the impugned order. On such premise, learned Special Government Pleader would submit that the instant appeal is only to be dismissed. **5.** Having heard learned counsel appearing for both sides, we find little merit in the instant appeal. We first address the correctness of the finding that the M.F.A(Forest).92/2012 6 petition schedule premises is a private forest under the Vesting Act. Going by the definition of a private forest in Section 2(f) of the Vesting Act, all lands to which the M.P.P.F. Act applied immediately before the appointed day, sans the exclusions carved out in sub clauses A to D; and any forest not owned by the Government, to which, the M.P.P.F. Act does not apply, are private forests, in so far as the Malabar District is concerned. So far as the rest of Kerala is concerned, any forest not owned by the Government, including waste lands, which are enclaves within wooded areas are private forests. The M.P.P.F. Act 1949 applied to (1) the private forests within the erstwhile districts of Malabar and South Kanara, having a contiguous area exceeding 100 acres, (2) to forests situated in estates as defined in the Madras Estates Land Act, 1908 and (3) such other private forests situated in other areas in the Malabar District having a contiguous area exceeding 100 Acres and which are declared by the State Government to be forest for the purpose of the said Act. In the instant facts, the respondent/department took M.F.A(Forest).92/2012 7 a stand that the scheduled property forms part of a huge malavaram by name 'Pombra malavaram', which comes within the purview of M.P.P.F. Act. As found by the Tribunal, the disputed property is situated in the erstwhile Malabar District. Ext.B3 is the notification, as per which, the areas covered by Pombra malavaram has been notified as a vested forest. Ext.B2 is the periphery sketch prepared by the forest department of Pombra malavaram, with an extent of more than 100 acres. As against the evidence adduced by the forest department, no evidence has been adduced by the appellant to show that the disputed property is not part of Pombra malavaram, to which the erstwhile M.P.P.F. Act does not apply. Going by the judgment of this Court in **State of Kerala** v. **Kunhiraman** [1990(1) KLT 382], the burden of proof is clearly upon the claimant/appellant to establish that the property in question is not a private forest in terms of Section 2(f) of the Vesting Act. This burden is not seen discharged. **6.** Before concluding the point, this Court will M.F.A(Forest).92/2012 8 specifically address the question whether the disputed property stands excluded by Section 2(f)(1)(i)(C) of the Vesting Act, the requirement under the said section being that the land should be principally cultivated with cashew or other fruit bearing trees or with any other agricultural crops. The expression “principally cultivated with” 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 as follows: “Now comes the question as to what is the meaning of the term 'principally cultivated'. Going by the very terminology, the intention of the Statute appears to be that the cultivation has necessarily to be to a substantial extent so as to M.F.A(Forest).92/2012 9 make the property principally cultivated. In other words, 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. The factual position available in the present case will be dealt with later, and before that, what exactly is the meaning of the term and what extent of cultivation has to be there to ascertain whether it was being principally cultivated or not, are to be considered.” **7.** The Division Bench then referred to the decision of 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 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]. Now, coming to the facts, Ext.C1 is the commissioner's report, the dates of inspection being 11.10.2010, 12.10.2010, 08.01.2011 and 13.02.2011. In paragraph no.5 of Ext.C1 report, the M.F.A(Forest).92/2012 10 Commissioner found that there are several trees in the scheduled property and that the same is lying as a slope from north to south. In paragraph no.7, the Commissioner found that there is one dried cashew tree-aged 65-70 years, 30 cashew trees-aged 50-55 years, 15 cashew trees (medium in size)-aged 30-35 years and 15 cashew trees (small in size)-aged 15-20 years. After the above, mention is made about cashew trees (medium and small) aged 35-20 years, which we discount, since these trees, going by their age, cannot be found to have been existing as on the date of vesting, namely 10.05.1971. In this regard, it is also worthwhile to point out that the age has been determined by the Commissioner as per the version given by the claimant and the representatives of the forest department. Now, coming to 30 cashew trees of the age 50-55 years, we are of the opinion that the same does not answer the requirements of the expression “principally cultivated with cashew” as interpreted in the judgments afore referred. It is noteworthy that the total extent of the schedule properties is 7.06 acres, M.F.A(Forest).92/2012 11 wherefore, the existence of 30 cashew trees would not answer the requirements of at least one half of the property being planted with the crop in question. It is also important to note that the existence of these cashew trees is amidst a lot of other trees, which suggest forest vegetation. As many as 16 items have been cataloged by the Advocate Commissioner in Ext.C1 before referring to the cashew trees, the nature of all of which would suggest spontaneous growth in the forest and not an activity of cultivation. We, therefore, hold that the requirements of Section 2(f)(1)(i)(C) of the Vesting Act to claim exclusion has not been satisfied. **==> picture [451 x 12] intentionally omitted <==** claimants/appellants are entitled to the exemption under Sections 3(2) and 3(3) of the Act. As per Section 3(2), such extent of land comprised in the private forest held by the owner under his personal cultivation is exempted. By virtue of the explanation thereunder, cultivation includes cultivation of trees or plants of any species. M.F.A(Forest).92/2012 12 Under Section 3(3), that extent of private forest held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation is exempted. Both these exemptions operate only if the extent is within the ceiling limit applicable under the Kerala Land Reforms Act. It could thus be seen that, under Section 3(2), the property could have been 'held by an owner', which expression received interpretation by a Division Bench of this Court in ## _**Kunhiraman**_ supra. “Ownership contemplated in the subsection is legal ownership. In other words, if the person cannot trace his right to a valid title, he is disabled at the first instance itself from claiming exemption under Section 3(2) of the Vesting Act. Ext.P1 is a registered assignment deed executed by Ayamootty in the year 1972. The recitals therein show that the land was orally leased by Ayamootty in favour of the claimant in the year 1957. There is no case for the claimant that the aforesaid lease was with the prior permission of the District Collector. Section 3(1) of the M.P.P.F. Act prohibits alienations of any forest land either by way of sale or mortgage or lease or otherwise without the previous M.F.A(Forest).92/2012 13 sanction of the District Collector. The subsection also declares that any alienation made in contravention of the said prohibition shall be null and void. The claimants has, therefore, failed to establish that he has a valid title.” **9.** The Division Bench held that the ownership contemplated in subsection (ii) is legal ownership and therefore, if a person cannot trace his right to a valid title, he is disabled at the first instance itself from claiming exemption under Section 3(2) of the Vesting Act. Similarly, in **State of Kerala** v. **Muhammed Basheer** [2019(1) KLT 386], the Hon'ble Supreme Court held that 'to own' is to have good legal title to hold and possess the property. The Supreme Court referred to **Black's Law Dictionary** (9[th] Edition) wherein “own” is defined as “to rightfully have or possess the property; to have legal title to”. **10.** Before addressing the facts, we will also refer to the requirements of Section 3(3), which speaks about a 'valid registered document of title' executed before the appointed day, over and in addition to the requirements ## M.F.A(Forest).92/2012 14 of holding the property as an owner, with intent to cultivate. **11.** Ext.A1 has been propounded as the tile of the appellant/claimant. Ext.A1 is an unregistered wakf document executed by one Moosa Khan in favour of 'Kanniyarkunnu Namaskara Palli' and 'Manba Ul Hyrath Madrassa'. The scheduled property, having an extent of 7 acres, is the subject matter of Ext.A1 document. Primarily, we notice that the applicant in the O.A is not any of the two entities referred to in Ext.A1. Instead, the applicant is one Muhammed Vapputty, styling himself as the working President of 'Hadayathul Islam Sangham'. The relationship, if any, by and between the two entities specifically referred in Ext.A1 and the said 'Hadayathul Islam Sangham' is neither pleaded or proved. Instead, the pleading is to the effect that the property has been transferred to the 'Hayathul Islam Committee' [again, different from the Hadayathul Islam Sangham stated as against the name and address of the applicant in the O.A] by virtue of Ext.A1 document of 1969. The M.F.A(Forest).92/2012 15 inevitable conclusion is that the title of the applicant over the schedule property is not established by Ext.A1 document. **12** . Secondly, we notice that, Ext.A1 is not a registered document of title, as required by Section 3(3) of the Vesting Act. Learned counsel for the appellant contended that, a wakf deed, transferring the property for the purposes of a wakf, need not be registered. No provision was brought to our notice in support of the above assertion. Even if the said legal position is assumed, still, the appellant/claimant failed to produce a certified copy of the decree, under which, the executant of Ext.A1 document claims title to the schedule property, especially when Ext.A1, the document of title propounded, is not a registered document. We therefore uphold the finding of the Tribunal that the requirement of Section 3(3) of the Vesting Act is not satisfied. The same logic would hold good with respect to the requirements of Section 3(2) as well, where the property in question should be held by an 'owner' under his M.F.A(Forest).92/2012 16 personal cultivation, as held in _**Kunhiraman** supra._ The applicant herein could not trace his right to a valid title. Nor could the applicant establish by satisfactory evidence that the property in question was under his personal cultivation as on the date of vesting. There is no proof of any cultivation forthcoming, except in the form of the oral evidence. As it is trite, an exception has to be interpreted strictly, wherefore, cogent and strict proof is necessary to favour the exemption. As regards the oral evidence of PWs.1 to 3, we find that the same is far from satisfactory, as found by the Tribunal in the impugned judgment, to prove the cultivation. Coming to the commission report, we note that the same does not depict the state of affairs prevailing as on the date of vesting, namely 10.05.1971. Besides, the commission report does not support any cultivation as such in the schedule property, except the existence of certain trees, including the cashew trees. No proof with respect to the income being generated from the cultivation, if any, carried out in the schedule property M.F.A(Forest).92/2012 17 has been adduced by the applicant, especially when Ext.A1 document speaks about appropriation of such income from the property for the purposes of the wakf. No proof has been adduced to show that, any tax in connection with the agriculture produce has been paid in respect of the schedule property. In such state of affairs, we cannot find any illegality or infirmity in the impugned judgment. In the result, this appeal fails and the same is, therefore, dismissed. ## **Sd/-** **K.VINOD CHANDRAN JUDGE Sd/C.JAYACHANDRAN JUDGE** ``` Sbna/ ```