Perumbananikkal Jismon v. State of Kerala and The Custodian and Chief Conservator, (Ex-officio Chairman of Vested Forests)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 15TH DAY OF SEPTEMBER 2017/24TH BHADRA, 1939** **MFA.No. 32 of 2013 ()** **---------------------AGAINST THE ORDER IN OA 68/2009 OF FOREST TRIBUNAL, KOZHIKODE DATED 29-03-2011** **---------** ## **APPELLANT/APPLICANT:** **--------------------** **PERUMBANANIKKAL JISMON, S/O.KURIAN,AGED 35 YEARS,ALATTIL PO, PERIA VILLAGE, MANANTHAVADY,WAYANAD DISTRICT** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM 695001.** **2. THE CUSTODIAN AND CHIEF CONSERVATOR, (EX-OFFICIO CHAIRMAN OF VESTED FORESTS) ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD DISTRICT 678002** **BY SPECIAL GOVERNMENT PLEADER SRI.NAGARAJ NARAYANAN,(FORESTS)** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **K.HARILAL & A.MUHAMED MUSTAQUE, JJ.** _*********************************************************************************************_ M.F.A. (Forest) No.32 of 2013 _********************************************************************************************_ Dated this the 15[th] day of September, 2017 ## JUDGMENT ## K.Harilal, J. The appellant herein is the applicant in Original Application No.68 of 2009 filed under Section 8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for short, the 'Vesting Act') before the Forest Tribunal, Kozhikode and this appeal is directed against the judgment dismissing the said application. The above application was filed seeking a declaration that the application schedule property having an extent of 95 cents of land in Peria Village of Mananthavady Taluk is not a private forest vested with the Government under Section 3 of the Vesting Act and the application schedule property is liable to be exempted under Section 3(3) and 3(2) of the Vesting Act, if it is found that the same is a private forest. 2. According to the averments in the application, the appellant is the absolute owner in possession of the said land and the same is under his personal cultivation. The said land was given to him by his father Kurian (PW2) as per registered gift deed M.F.A.No.32 of 2013 2 bearing No.1894 of 1993 of Mananthavady SRO. The said Kurian obtained the said land to his share as per partition deed No.2924 of 1979 of the said SRO. The applicant's grandfather Mathai had obtained the said property in 1958 from one Vattoli Kanaran Nair and he was in possession and enjoyment of the same from then onwards and he was doing agricultural operations therein and paying land tax and other taxes. While so, the said Mathai got Ext.A3 purchase certificate for the land from the Land Tribunal, Manathavady as per O.A.No.846 of 1970 on 30.5.1975. Thus, he also got fixity of tenure over the land under the aforesaid proceedings. The applicant's grandfather Mathai brought the entire property under plantation with coffee, rubber, pepper vines, arecanuts, silver oaks, seasonal crops etc. Subsequently, the land came into possession of the applicant's father and he also have planted tea in some portions of the schedule property. The schedule property is under absolute possession and enjoyment of the applicant from 1993 onwards. There is no forest land in the schedule property nor was it lying contiguous to any forest. The two sides of the schedule property are developed cultivated lands. So the schedule property would never come under the definition of M.F.A.No.32 of 2013 3 private forest as per the Vesting Act. The provisions of M.P.P.F Act was not applied to the schedule property. The entire schedule property was fully covered with plantations like rubber, coffee, arecanut, pepper vines etc. and all are aged more than 50 years. Recently, a portion is converted into a tea plantation with 6000 numbers of tea plants. Thus, the schedule property has no characteristics of a forest and is liable to be excluded from the private forest. But, recently, some local forest officials came to the schedule property and attempted to obstruct the applicant's agricultural operations therein saying that the schedule property is a private forest vested in the Government. In the said circumstance, the applicant was constrained to seek a declaration as prayed for. 3. The respondents filed counter statement denying the claim raised by the applicant over the schedule property. According to the respondents, the applicant has no _locus standi_ to file the Original Application as the right, title and interest of the owner or any other person in the private forest stood extinguished under Section 3 (1) of the Vesting Act. It is further contended that all private forests in Survey No.84/1 of Peria Village stood vested with the Government as on 10.5.1971. As per V.F.C. item No.76, an extent M.F.A.No.32 of 2013 4 of 0.37 hectare of private forest in Sy.No.84/1 is vested and the custodian of the vested forest issued notification No.4713/1977-B dated 8.7.1977. All the cultivated lands were exempted from the said notification. But, the disputed property was identified and demarcated as vested as early in 1977 and there was no dispute from the part of the applicant or his predecessor regarding the notification. There is no cultivation in the schedule property and the applicant has encroached the vested forest and planted few crops therein very recently. The disputed property is not a plantation or cultivated land and there was no cultivation in the disputed land on 10.5.1971. 4. On the aforesaid rival claims and contentions, both parties adduced oral and documentary evidence, which consist of the oral testimony of PW1, PW2 and RW1 and the documentary evidence Exts.A1 to A27, B1, B2, C1 commission report and Ext.C2 sketch. 5. After evaluating the evidence on record, the Forest Tribunal dismissed the application on a finding that the application schedule property is a private forest falling under Section 2(f)(i) of the Vesting Act and the application schedule property is not liable to be exempted under Sections 3(2) and 3(3) of the Vesting Act. The M.F.A.No.32 of 2013 5 legality and correctness of the aforesaid findings are challenged in this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the respondents. 7. In view of the arguments advanced at the Bar, broadly, the question to be considered is, whether the Forest Tribunal is justified in finding that the scheduled property was a private forest and the appellant is not entitled to get protection under sections 3(2) and 3 (3) of the Vesting Act. In **State of Kerala v. Chandralekha [1995** **(2) KLT 152 (FB)]** this Court has settled the law as regards the burden of proof, in an application seeking declaration under section 8 of the Act, by holding that the burden of proof lies on the person who prefers a claim before the Tribunal that the property is not a private forest and liable to be exempted under section 3(2) or 3(3) of the Vesting Act. 8. In view of the above decision, the point to be considered is, whether the appellant has succeeded in proving that the scheduled property is not a private forest and if it was a private forest, it was liable to be exempted under section 3(2) of the Vesting Act. According to the appellant, the scheduled property belongs to him M.F.A.No.32 of 2013 6 by virtue of Ext.A1 settlement deed of the year 1993 executed by his father Kurian and he in turn had got title and possession over the property as per Ext.A2 partition deed of the year 1979 executed by the said Kurian and his brothers. The scheduled property is 'B' schedule in the said partition deed. Further, according to him, his grandfather Mathai had obtained the scheduled property under Marupattam right from Vattoli Kanaran Nair in the year 1958 and thereafter Mathai had cultivated the property with rubber, coffee, arecanut, pepper, vine, etc. The cultivations are aged more than 50 years. While so, the aforesaid Mathai obtained purchase certificate under section 72(k) of the Kerala Land Reforms Act for the scheduled property from the Land Tribunal, Mananthavady in O.A.846/1970 of the Taluk Land Board, Mananthavady and the said purchase certificate was issued considering the fact that he was a cultivating tenant. After Ext.A1 the appellant converted a portion into teak plantation and planted about 6000 teak plants. Even if the scheduled property is a private forest, he is entitled to get exemption under section 3(2) of the Vesting Act as a successor of a cultivating tenant. M.F.A.No.32 of 2013 7 9. To get a declaration as prayed for, firstly, it is incumbent upon the applicant to prove that (1) the scheduled property was not a private forest as defined under section 2(f)(1) of the Vesting Act as on the appointed day, ie 10.5.1971. (2) If he fails, he has to prove that the scheduled property was held by his predecessor as an owner under his personal cultivation and was within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963, or (3) the land was held by his predecessor under valid registered document of title executed before 10/5/1971 and intended for cultivation by him and the land together other land did not exceed ceiling limit applicable to him under section 82 of the Land Reforms Act. In order to prove that the scheduled property is not a private forest as on 10/5/1971, the applicant should prove that (1) the scheduled property was not a land to which Madras Preservation of Private Forests Act, 1949 ('MPPF Act' for short) was not made applicable or (2) the scheduled property was a land falling under any of the exceptions provided under clause (A) to (D) of section 2(f)(1). Therefore our first endeavour is to examine whether the applicant has succeeded in proving that the schedule property was not a land to which Madras Preservation of Private Forest Act was not made M.F.A.No.32 of 2013 8 applicable. 10. Admittedly, the property is situated in Peria village, Mananthavady, a place within the erstwhile Malabar District, to which MPPF Act was applicable. No evidence was adduced to prove that the scheduled property was not a part of larger extent of property having contiguous area exceeding 100 Acres. So it can be held that the scheduled property was land to which the Madras Preservation of Private Forest Act, 1949 was made applicable, before the appointed day and the appellant failed to prove otherwise. 11. Then the question to be considered is whether the appellant has succeeded in proving that the scheduled property had fallen under any kind of exclusion under clauses (A) to (D) of section 2(f)(1) of the Vesting Act. It is to be remembered that the Land Board had issued purchase certificate treating the appellant's grandfather as a cultivating tenant in a _suo motu_ proceedings initiated in the year 1970, before the appointed day. He has deposed in a way that the scheduled property was under his personal cultivation with rubber before 1970 and considering that aspect suo motu proceedings were initiated and the Land Board M.F.A.No.32 of 2013 9 ## issued Ext.A3 purchase certificate in O.A.No.846/1970. 12. When the appellant was examined as PW1, he has testified as to the personal cultivation made by his father Kurian (PW2) and grandfather Mathai, before 1970, and subsequently by him, but, no question was put to him challenging the personal cultivation made by him or his father or grandfather and the absence of cross-examination from the part of the respondent amounts to an admission that the property was under his personal cultivation before 1970. Exts.A5 to A25 are tax receipts showing payment of property tax from 22/4/1975 till 1998. Exts.A5 to A11 are tax receipts in the name of the applicant. Exts.A12 to A22 are also tax receipts in the name of the father of the applicant, Kurian. Ext.A24 is the tax receipt in the name of Mathai, the father of Kurian, for the year 1975. The tribunal discarded all the tax receipts evidencing payment of property tax by the applicant, his father Kurian and grandfather Mathai on a mere finding that all the tax receipts relate to a period, after the appointed day. But we find that the tax receipts 25 in number in the name of three generation are relevant and significant, in view of Ext.A3 Purchase Certificate. Admittedly, Ext.A3 Purchase Certificate was issued in a suo motu proceedings M.F.A.No.32 of 2013 10 initiated before the appointed day. Further, it shows that PW2 had mutated the property pursuant to the issuance of purchase certificate to him and he had been paying tax as the owner of the property. Before PW2, his father Mathai, who allegedly got the property from Vattoli Kanaran Nair, was paying tax as per Ext.A24. 13. It is true that even though suo motu proceedings had been initiated against him in the year 1970, before the appointed day, Ext.A3 Purchase Certificate was issued in the year 1972, after the appointed day. Ext.A3 Purchase Certificate is fortified by Ext.A26 copy of proceedings of the Taluk Land Board, Mananthavady in TLB No.1083/1973 and Ext.A27 survey plan. Here, the definition of “owner” would come to rescue PW2. According to section 2(c) of the Vesting Act, “owner” in relation to a private forest includes a mortgagee, lessee, or other person having right to possession and enjoyment of the private forest. Here, it is to be borne in mind that the specific case of the appellant is that his grandfather Mathai, the father of PW2, had obtained right and possession over the scheduled property under 'Marupattam' from Vattoli Kanaran Nair, who had jenm right over the property in the year 1958. This pattam right was also not specifically challenged M.F.A.No.32 of 2013 11 either in the counter statement or cross-examination of PW1 or PW2 by the respondent. Thus, in the absence of any challenge against the marupattam right and possession of Mathai and cultivation made by him thereunder before the appointed day, from the respondent, it could be more probable and believable that he was a cultivating tenant on the petition schedule property before 1970 and he planted the scheduled property with rubber as claimed by him. Considering that aspect, suo motu proceedings under section 72 of the Kerala Land Reforms Act was initiated against him and issued Ext.A3 purchase certificate. Thus, it stands proved that Mathai, the father of PW2, and, thereafter, PW2 were cultivating the property with rubber, even before Ext.A3 Purchase Certificate, as a mortgagee. 14. The above view is supported by Ext.C1 commission report wherein the commissioner had reported that stumps of rubber trees were found standing in the scheduled property. Thus, the signs of re-plantation of rubber trees are evident in Ext.C1. In the oral evidence of PW2 he deposed that he had re-planted rubber trees in 1979-'80 after cutting the rubber plants stood earlier there. It is a matter of common knowledge that re-plantation is a recurring process in the rubber plantation. Rubber trees cultivated before M.F.A.No.32 of 2013 12 1970 could not have been in existence at the time when the commissioner visited the property in the year 2010. But, the Tribunal discarded the presence of stumps of rubber trees and further found that the age of the rubber trees is about 23 years. A rubber tree which was planted before 1970 could never be in existence in the year 2010 as re-plantation is a recurring process. Thus, this Court finds that the evidence given by the appellant as regards the personal cultivation of rubber made in the property stands unchallenged by the respondent. 15. Further, the evidence given by PW2 is supported by the issuance of Ext.A3 purchase certificate issued in a suo motu proceedings initiated before the appointed day. More importantly, it is pertinent to note that suo motu proceedings against Mathai, the grandfather of the applicant, was initiated as O.A.No.846/1970, before the appointed day, ie 10-5-1971. So it can be reasonably presumed that suo motu proceedings were initiated as he was a cultivating tenant. 16. The Tribunal discarded Ext.A3 Purchase Certificate on another reason that the application schedule property and the property scheduled in Ext.A3 are different. But, going by the M.F.A.No.32 of 2013 13 counter statement, it could be seen that the respondent has not raised such a contention in their counter statement. Thus, the tribunal has arrived at such a finding which was not raised by the respondent. Admittedly, the purchase certificate was issued in the year 1972. The description of the boundaries may be changed in accordance with transfer of the adjacent properties. Merely on the reason that the boundaries shown in Ext.A3 of the year 1973 are different from the boundaries shown in the application schedule, it cannot be held that the property is different, particularly when the respondent has no such contention in the counter statement. Thus, we find that the appellant has succeeded in proving that the scheduled property was used principally for cultivation of rubber by Mathai and Kurian, the predecessors of the appellant as owners. But, the Tribunal miserably failed to appreciate the evidence on record in its correct perspective. Further we hold that even if MPPF Act was applicable to the scheduled property, the property is liable to be exempted under clause (B) of section 2(f)(1) of the Vesting Act. 17. The learned counsel for the respondent vehemently contended that no reliance can be placed on Ext.A3 purchase M.F.A.No.32 of 2013 14 certificate while considering an application filed under section 3 of the Vesting Act as the purchase certificate is not binding on the enquiry contemplated thereunder. In support of the said argument the learned counsel for the respondent cited **K.D.Mani v. State of Kerala and Another [1987 KHC 742]** , **Thressiamma v. State of Kerala [2002 KHC 568]** and **Palpatta Veeran v. State of Kerala and Another [2016 (3) KHC 418]** . On the other hand, the learned counsel for the appellant cited **Mohammed Basheer v. State of Kerala [2002 (1) KLT SN 4]** and **State of Kerala v. Joseph** [ **2005 KHC 1848].** 18. We have meticulously gone through the decisions cited by both parties. In the above decisions the court considered the question whether purchase certificate can be considered as conclusive evidence proving possession and personal cultivation of the property while considering the application under section 8 of the Vesting Act. The two sets of decisions show conflicting views on the said question. We further find that in **2016 (3) KHC 418,** after considering the two sets of decisions showing conflicting views, this Court held that the purchase certificate issued by the Land Tribunal cannot be a conclusive proof regarding possession and personal M.F.A.No.32 of 2013 15 cultivation of the property before the Tribunal, while considering the application under sections 8 and 3 of the Vesting Act. The court further held that had the earlier decisions which rendered the above view been brought to the notice of this Court, when held otherwise, in **2002 (1) KLT SN 4** and **2005 KHC 1848,** this Court could not have taken a contrary view. 19. In the above context, the decision laid down by the Supreme Court in **Kunjanam Antony v. State of Kerala and Another [2003 KHC 902]** is very important as the said decision clarifies the evidentiary value of purchase certificate, without leaving any room for doubt. The Supreme Court held as follows:- “9. There can be no doubt that the order of the Thaluka Land Board, a statutory authority, is binding on the authorities under the Land Reforms Act. So far as the proceedings under the Forest Act are concerned, the order of the Thaluka Land Board would be a piece of evidence but it cannot be treated as a binding on the authorities under the Forest Act. Unless a contrary state of affairs is shown to exist, the order of the Thaluka Land Board would have to be given due weight. From the material placed before the High Court and also before us, it appears that there is no evidence in regard to the destruction of the rubber plantation due to M.F.A.No.32 of 2013 16 fire. There is, however, material to show that the appellant has been cultivating tapioca. Further, the High Court recorded a finding that there was no evidence indicating that the appellant had intention to cultivate the land which only meant cultivation of rubber plantation. There is also nothing on record to show that absence of rubber plantation was for short period and that the land was in the process of rubber plantation.” 20. However, we find that the decision held in **2016(3) KHC 418** does not mean that purchase certificate issued under the Kerala Land Reforms Act cannot be taken as evidence. According to section 3 of the Indian Evidence Act, conclusive proof means, when one fact is declared by the Evidence Act to be conclusive proof of another fact, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. So an evidence which is not a conclusive proof is also a proof; but evidence can be given for the purpose of disproving it and on proof of one fact, it cannot be said that the other is proved. So merely on the reason that an evidence is not a conclusive proof, it cannot be discarded and it can be taken as mere proof like any other proof. Here the issuance of purchase certificate cannot be taken as a conclusive proof of personal cultivation made M.F.A.No.32 of 2013 17 by the grandfather of father of the applicant; but it can be taken as a proof, which would render support to the other evidence adduced by the applicant in this respect. 21. We have not taken Ext.A3 purchase certificate as a conclusive proof of possession and personal cultivation claimed by the appellant. But we give due weight to Ext.A3 purchase certificate as a proof which would support the inference that Mathai had cultivated the scheduled property before 1971. But we have analysed the evidence on record adduced by the appellant and held that the scheduled property was under personal cultivation of the predecessors of the appellant before the commencement of the appointed day, ie 10.5.1971. 22. Further, we find that Ext.A3 purchase certificate, as a piece of evidence, would support the decision which we have taken above, on the basis of the other evidence, and the same is permissible, in view of the decision of the Supreme Court in **Kunjanam Antony (dead) by LRs v. State of Kerala and Anr. [2003 KHC 902]** . 23. In the instant case, the unchallenged oral testimony of PW1 and PW2 coupled with Exts.A1, A2 and A4 to A26 give rise to M.F.A.No.32 of 2013 18 an irresistible inference that the scheduled property was a land principally cultivated with rubber as on the appointed day ie 10/5/1971 by Mathai, the predecessor-in- interest of the appellant and thereby the scheduled property is liable to be excluded from private forest as provided under section 2(f)(1)(B) of the Vesting Act. The above finding is supported by Ext.A3 purchase certificate issued to the predecessor of the appellant, in a suo motu proceedings initiated before the appointed day, ie 10/5/1971. But, the Tribunal failed to appreciate the evidence on record in its correct perspective. Hence we set aside the impugned order under challenge passed by the Tribunal and O.A.No.68/2009 will stand allowed. In the result, this M.F.A.(Forest) will stand allowed. ## **K.HARILAL, JUDGE** ## **A.MUHAMED MUSTAQUE, JUDGE** ln/okb