Nechikkadan Hameed v. State of Kerala and Custodian of Vested Forests

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 6TH DAY OF DECEMBER 2013/15TH AGRAHAYANA, 1935** **MFA.No. 20 of 2006 (E )** **--------------------------------** **AGAINST THE ORDER/JUDGMENT IN OA 9/2004 of FOREST TRIBUNAL, KOZHIKODE DATED 29-06-2005** ## **APPELLANT(S):** **------------------------** **NECHIKKADAN HAMEED, S/O.ABDU HAJI, NECHIKKADAN HOUSE, P.O.KALKUNDU KERALA STATE VILLAGE, KURUVARAKKUNDU AMSOM CHEMBARA DESOM, NILAMBUR TALUK, MALAPPURAM.** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM.** ## **2. THE CUNSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT.** ## **R2 BY SPL. GOVERNMENT PLEADER SRI.M.P. MADHAVANKUTTY** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 1-82013, THE COURT ON 06-12-2013, DELIVERED THE FOLLOWING:** ## **K.M.JOSEPH & B.KEMAL PASHA, JJ.** **---------------------------------------------------M.F.A. (Forest) No.20 OF 2006 -E ---------------------------------------------------Dated this the 6[th] day of December, 2013.** ## **JUDGMENT** ## _**Kemal Pasha, J.**_ The applicant, whose O.A.9 of 2004, filed under Section 8 of the Kerala Private Forests(Vesting and Assignment) Act, 1971, (hereinafter referred to as the 'Vesting Act'), stands dismissed by the Forest Tribunal, Kozhikode vide order dated 29.06.2005, has come up in appeal. 2. The O.A. was originally filed in respect of 2.71 acres (1.09 hectares) of property in unsurveyed land in Kerala Estate Village, Nilambur Taluk. Later, the survey number was M.F.A. No.20 of 2006 -:2:- amended and incorporated as Survey No.36/Part in block 157. 3. The case of the appellant is that, the scheduled property, which originally belonged to Kalladi K.P. Muhammed Sahib, was taken on oral lease prior to 1963 by one Antony, S/o Urumbel Devasya. The said property was cultivated with arecanut trees, jack trees, mango trees and seasonal crops like tapioca, ginger, plantain etc. by the said Antony, prior to the appointed day. The said cultivations were there as on the appointed day, and even later to it. The appellant purchased the said property from the said Antony in the year 1998 through Sale Deed No.2941/1998 of the Melattur Sub Registry. The appellant continued with the said cultivations in the scheduled property. In the year 1999, the appellant obtained purchase certificate in respect of the scheduled property from the Land Tribunal, Manjeri, thereby, he obtained 'jenmam' right over it. The appellant as well as his predecessors in interest were remitting basic tax at the Village Office and were also paying the subscriptions to the Kerala Karshaka Thozhilali Kshemanidhi M.F.A. No.20 of 2006 -:3:- Board. The appellant availed agricultural loan from the South Malabar Gramin Bank, Punnakkad Branch for developing the scheduled property, by furnishing the said property as security, by way of equitable mortgage. The original title deeds of the property were produced before the Bank. The scheduled property is in the area over which the Madras Preservation of Private Forests Act(hereinafter referred to as 'the MPPF Act), was not applicable before the appointed day. As the property was brought under cultivation with the crops mentioned above even before the appointed day, and continued to be so on the appointed day and later, it cannot be brought under the classification of private forest. It is not a 'private forest' as per clauses (A) and (C) of Section 2(f)(1)(i) of the Vesting Act. It was also averred that, even if it was a 'private forest', the applicant is entitled to exemption under Sections 3(2) and (3) of the Vesting Act. It was alleged that on 27.1.2004, the Forest Officials attempted to trespass into the scheduled property and cut and remove the agricultural crops. M.F.A. No.20 of 2006 -:4:- 4. The Divisional Forest Officer, Nilambur(South) Division, Nilambur, filed a counter contending _inter alia_ as follows:- The scheduled property coming under _Kannoth Malavaram_ is a vested forest bit encroached upon by the appellant. An extent of 1541.25 hectares of unsurveyed land in Kannoth Malavaram was vested in Government and was notified as VFC item No.2 vide notification dated 11.1.77, and the notification was duly published. The averments regarding the derivation of title are denied as not true. There was no cultivation in the property on or before the appointed day. The scheduled property was governed by the erstwhile MPPF Act. The boundaries of the scheduled property are not correctly shown in the application. The property is bounded on three sides by vested forest, and the area including the scheduled property containing various kinds of forest species trees. The certificate of purchase, relied upon by the appellant, is not valid. The Land Tribunal has no authority to issue purchase certificate with respect to the vested forest land. It was also contended ## M.F.A. No.20 of 2006 -:5:- that the purchase certificate produced by the appellant does not pertain to the scheduled property, but the same can only relate to some other properties. The appellant is not entitled to exemption under Section 3(2) or (3) of the Vesting Act. There is no cause of action at all. It was also contended that the application was barred by limitation. 5. On the side of the applicant, PW1 was examined and Exts.A1 to A7 were marked. On the side of the respondents, RW1 was examined and Ext.B1 was marked. Exts.C1 and C2 were also marked. The learned Tribunal found that the application was not barred by limitation. The Tribunal, through the impugned order, found that the disputed land (the scheduled property) was a private forest as on 10.5.1971, the appointed day. It was further held that the appellant is not entitled to claim exemption under Section 3(2) or (3) of the Vesting Act, and consequently, the O.A. was dismissed through the impugned order. 6. Heard the learned counsel for the appellant ## M.F.A. No.20 of 2006 -:6:- Sri.V.V. Surendran and the learned Special Government Pleader for Forests, Sri.M.P. Madhavankutty. The learned counsel for the appellant has argued that the scheduled property cannot be considered as a private forest as per clauses (A) and (C) of Section 2(f)(1)(i) of the Vesting Act. The learned Special Government Pleader has argued that, in order to exclude the property from the definition of private forest, the scheduled property should have been a garden land or 'Nilam', as per clause (A), and it should have been lands which are principally cultivated with cashew and other fruit bearing trees or principally cultivated with any other agricultural crop, and that the said property should have been like that as on the appointed day under the Act, namely 10.5.1971. In _**State of Kerala v. Pullangode Rubber Co. Ltd. [1999 (3) KLT 334(SC)]**_ it was held that the use of the words, “are used” in Section 2 of the Vesting Act necessarily refers to such use of the land as on the appointed date under the said Act, namely, 10[th] May, 1971. It was held that it is not possible to give any other meaning to the M.F.A. No.20 of 2006 -:7:- words “are used”, and they must relate to the use on that particular day for deciding whether the land is or is not a private forest within the meaning of the said Act. 7. The question to be decided is whether the scheduled property was being used so, prior to the appointed day or as on the appointed day. The appellant was examined as PW1. According to PW1, the property was cultivated with arecanut trees and other seasonal cultivations like tapioca, ginger etc. prior to 10.5.1971. His case is that the property was taken possession by one Antony prior to 1963 from Kalladi K.P. Muhammed Sahib, by way of an oral lease, and that the said Antony was in possession as a lessee and was cultivating the property as on 10.5.1971. The appellant has not adduced any evidence to prove any such oral lease. As per Section 107 of the Transfer of Property Act, 1882, a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be ## M.F.A. No.20 of 2006 -:8:- made either by a registered instrument or by oral agreement accompanied by delivery of possession. Therefore, the case of the appellant that there was an oral lease prior to 1963, which continued till the appointed day, i.e.10.5.1971, does not deserve any merit at all. Over and above it, the appellant has no case that any rent was ever paid and he does not know the exact rate of rent. Any rent receipt has not been produced. Therefore, it cannot be believed that the property could have been used for cultivation by obtaining it through oral lease. 8. At the time of examination of the appellant as PW1, he was only 37 years old. As rightly found by the learned Tribunal, PW1 is not competent to prove any such oral lease allegedly obtained prior to 1963 and also any cultivation in the disputed land, on or before 10.5.1971. PW1 was not even born in 1963 and he could only be 2 or 3 years old, as on 10.5.1971. It is the admitted case of PW1 that he could see the disputed land for the first time in his life, just 15 days prior to the execution of the sale deed in his favour, in the year 1998. He M.F.A. No.20 of 2006 -:9:- has conceded that he had no direct knowledge regarding the nature of the property as on 10.5.1971. 9. Going by the age of the agricultural improvements, as assessed by the Commissioner also, none of them could be in existence on the appointed day. The evidence of PW1 that the old trees in the property were destroyed by wild animals is not acceptable. Even though he has claimed that the remnants of such trees were shown to the Commissioner who visited the property, the Commissioner has not reported the existence of any such remnants in the property. This Court has held in the decision in _**State of Kerala and another v. Kunhiraman (1990 (1) KLT 382)**_ that the burden is on the claimant to prove that the land in question was not a private forest as on the appointed day. 10. Admittedly, the disputed land is situated within the erstwhile Malabar District. Therefore, as rightly found by the learned Tribunal, it is for the appellant to prove that the MPPF Act did not apply to the scheduled property, immediately before ## M.F.A. No.20 of 2006 -:10:- the appointed day. The MPPF Act was applicable to all the private forests in the Districts of Malabar and South Kanara, having a contiguous area exceeding 100 acres, as per Section 1(2)(i) of the MPPF Act. It is the admitted case that the scheduled property is a part of Kannoth Malavaram. The appellant has failed to prove that, that portion of the Kannoth Malavaram does not come within the purview of Ext.B1 notification. Matters being so, the case of the appellant that MPPF Act did not apply to the scheduled property, immediately before the appointed day, also is of no merit at all. 11. It is the case of the appellant as PW1 that he has 50 cents of property, over and above the scheduled property, which is situated 4 kms. away from the scheduled property and that he has put up a building in the said 50 cents of property, wherein he is residing. In cross examination, PW1 has deposed that the red shaded portion in Ext.C2 is the disputed portion of the property and the said portion is a part of 2 acres and 71 cents. The said red shaded portion in Ext.C2 is shown to have an ## M.F.A. No.20 of 2006 -:11:- extent of 80 cents. The claim of the appellant is that the other 50 cents of property in which he is residing, is over and above the said 2 acres and 71 cents. It is the specific case of PW1 that he does not know the survey number of the scheduled property. At the same time, he has denied that he has any other property in any other survey number, except the aforesaid 50 cents. He has clearly admitted in paragraph 11 of his deposition that the property described in Ext.P4 belongs to him and that the said property is also a part of the scheduled property. Further, according to him, 50 cents of property noted in Ext.A4 is situated 4 kms. away from the scheduled property. 12. It is interesting to note the contents of Ext.A4. Ext.A4 is the possession certificate dated 23.5.1998 issued by the Village Officer, Kerala Estate Village. The English translation of the contents of Ext.A4 is as follows:- _“It is hereby certified that a total extent of 2.50 acres (two acres and fifty cents) of property which includes 2.00 acres(two acres) in Re.Sy. No.215/2A 2A2 and_ ## M.F.A. No.20 of 2006 -:12:- _0.50 acres(50 cents) of property in unsurvey of the Kerala Estate Village is in the possession of Nechikkadan Hameed, S/o Abdu Hajee of Kerala Estate Village, Nilambur Taluk.(This certificate is issued for production before the Agriculture Office, Karuvarakundu.”_ 13. The said Nechikkadan Hameed, whose name is noted in Ext.A4 is the appellant herein. He has clearly admitted the correctness of Ext.A4, and he claimed that the 50 cents of property noted in Ext.A4 is situated 4 kms. away from the scheduled property and that the remaining property in Ext.A4 is the scheduled property. He does not know the survey number of the scheduled property and that he has admitted that he has no other property in any other survey number. The contents of the purchase certificate and Ext.A4 possession certificate are contradictory. All the claims of the appellant are contradictory to the contents of the purchase certificate as well as Ext.A4 possession certificate. Matters being so, the said claims of the appellant are devoid of merits. M.F.A. No.20 of 2006 -:13:- 14. The last point to be considered is the claim of the appellant for exemptions under Sections 3(2) and (3) of the Vesting Act. Admittedly, the appellant was not the owner of the scheduled property and the same was not under his personal cultivation, as on the appointed day. The appellant has no claim that he had obtained any document of title enabling him to be the owner of the scheduled property, prior to the appointed day. Going by the decision of a Full Bench of this court in _**Parameswara Sastrigal v. State of Kerala [2008(2)KLT 461 (F.B.)]**_ , if it can be proved that the land is not a private forest on the appointed day or the then owner is entitled to claim the benefit of S. 3(2) or 3(3) of the Act, there is no prohibition on the owner to assign his right to a third party and his assignee can also approach the Forest Tribunal for a declaration that the land is not vested under S.3(1) of the Act on the appointed day. In other words, an assignee also can claim and prove that his predecessor-in-interest who was in possession of the land on the appointed day was entitled to to get exemption under S. 3(2) M.F.A. No.20 of 2006 -:14:- or 3(3) of the Act. 15. No doubt the matter is pending before the Supreme Court. However, even if we go by the Full Bench therein, it was further held in paragraph 3, _“To claim exemption under S.3 (3): (1) owner must have registered title deed executed in his favour before the appointed day; (2) he must have an intention to cultivate the private forest in question; and (3) the land is within the ceiling area”._ 16. As per S. 2(c) of the Vesting Act, ‘owner’ includes a mortgagee or lessee or any person having right to possession and enjoyment of the private forest. The appellant has no case that his predecessor in interest of the land had registered title deed executed in his favour before the appointed day. The case of the appellant is that, his predecessor in interest of the land had obtained it on an oral lease in the year 1963, and it continued to be so, even after the appointed day, and thereafter, the appellant purchased the said property from that 'lessee' through a registered sale deed in the year 1998. As we have M.F.A. No.20 of 2006 -:15:- already observed, a lease of immovable property could not have been created for a period exceeding one year, otherwise than to a registered lease deed, as per S.107 of the Transfer of Property Act. Therefore, the predecessor in interest of the appellant could not be an ‘owner’ within the meaning of S. 2 (c) of the Act, as on the appointed day. 17. As we have already observed, the appellant was only 37 years old at the time when he was examined as PW1. He is not competent to prove any such oral lease allegedly obtained prior to 1963, as he was not even born in 1963. With regard to any cultivation carried on in the property on or before the appointed day also, he is not competent to adduce any oral evidence regarding any cultivation in the property as on the appointed day, as he could only be 2 or 3 years old, as on 10.5.1971. Admittedly, he could see the disputed land for the first time in his life, just 15 days prior to the execution of the sale deed in his favour, in the year 1998. The appellant has not adduced any evidence relating to the existence of any M.F.A. No.20 of 2006 -:16:- agricultural operations in the property as on the appointed day. 18. Matters being so, the appellant is not entitled to the exemptions claimed by him. We are satisfied that this appeal is devoid of merits, and is only to be dismissed, and we do so. In the result, this M.F.A. is dismissed. The parties shall bear their respective costs. ## **Sd/- K.M.JOSEPH, JUDGE.** **Sd/-B. KEMAL PASHA, JUDGE.** ul/- [True copy] _P.S. to Judge_