Premakumari and Others v. State of Kerala and Custodian of Vested Forests

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 2ND DAY OF AUGUST 2017/11TH SRAVANA, 1939** **MFA.No. 94 of 2006 (D) -----------------------** **AGAINST THE ORDER IN OA 11/2004 of FOREST TRIBUNAL, KOZHIKODE DATED 08-12-2005** ## **APPELLANT(S)/APPLICANTS:** **------------** **1. PREMAKUMARI, D/O.LATE BALAKRISHNAN.** **2. PRABHAKARAN, S/O.LATE BALAKRISHNAN.** **3. JULIE, D/O.LATE BALAKRISHNAN.** **4. BABY, W/O.HARIDAS AND D/O.LATE BALAKRISHNAN.** *** 5. THANKAMANI (DIED), W/O.LATE MADHAVAN.** ***(IT IS RECORDED AS PER MEMO CF NO.6268/16 THAT APPELLANT NO.5 IS NO MORE AND THE LEGAL REPRESENTATIVES ARE ALREADY IN THE PARTY ARRAY AS APPELLANTS 6 TO 9).** **6. NARAYANAN, S/O.LATE MADHAVAN.** **7. VIJAYAN, S/O.LATE MADHAVAN.** **8. MURALEEDHARAN, S/O.LATE MADHAVAN.** **9. ASHA, D/O.LATE MADHAVAN.** **10. SIVAPRASAD, S/O.JANARDHANAN.** **THE APPELLANTS ARE RESIDING AT KALLENKONAM,, CHITHALI, ALATHUR.** **(.....2)** **MFA.No. 94 of 2006 (D)** **2** **BY ADVS.SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE SMT.O.K.SANTHA** **RESPONDENT(S)/RESPONDENTS:** **--------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **2. CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD.** **BY SRI.NAGARAJ NARAYANAN, SPL.GOVT. PLEADER(FOREST)** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OKB** **'CR'** K.HARILAL & P. SOMARAJAN, JJ. --------------------------M.F.A (Forest) No. 94 of 2006 --------------------------Dated this the 2[nd] day of August, 2017 ## JUDGMENT ## **Harilal, J.** The appellants are the applicants in O.A.Nos.11/2004 and 12/2004 on the files of the Forest Tribunal, Kozhikode. The aforesaid applications were filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as 'the Vesting Act”) seeking a declaration that the application schedule properties are not private forests as contemplated under Section 2(f)(1)(i) and also they are entitled to get exemption under Section 3(2) and 3(3) of the Vesting Act, if it is a private forest. 2. According to the applicants, the application schedule properties in O.A.No.11/2004 belonged to Theyyalan, Balakrishnan and Madhavan and they acquired the properties by virtue of registered document No.174/1957. The application schedule properties in O.A.No.12/2004 also belonged to the said MFA(Forest).94/06 **:2:** Balakrishnan and Madhavan by virtue of registered partition deed No.174/1957. The application schedule properties in both O.As are not 'private forests'; they are 'parambas' without any tree growth, much less any forest growth. The properties on the boundaries are also private lands. So the properties were not notified as a vested forest. Similarly, the Madras Preservation of Private Forests Act (“the M.P.P.F Act” for short) was not applied to the application schedule properties in both O.As. The properties were cultivated with fugitive crops before the appointed day, ie. 10/5/1971. 3. The respondents resisted the said claim contending that the application schedule properties are part of “Nallekkavu Malavaram”, a private forest having a total extent of 61 Hectares (more than 100 Acres). It was also contended that M.P.P.F Act was applicable to the said Malavaram and there was no cultivation as contemplated under Section 2(f)(1)(i)(b) of the Vesting Act. Further, it was contended that there was no personal cultivation as is within the ceiling limits applicable to the applicants under the Kerala Land Reforms Act and the properties were not holding under a valid registered document of title and there was no kind of cultivation in those properties MFA(Forest).94/06 **:3:** on the appointed day, i.e, 10/5/1971. Therefore, the applicants were not entitled to get any exemption under Sections 3(2) and 3 (3) of the Vesting Act. 4. On the aforesaid rival pleadings both parties adduced evidence, which consists of oral testimony of P.W.1 and R.W.1 and the documentary evidence of Exts.A1 to A3 and C1 to C4. After considering the aforesaid evidence on record, the Forest Tribunal dismissed the said applications on a finding that the application schedule properties are private forests on the appointed day and the applicants are not entitled to get exemption under Sections 3(2) or 3(3) of the Vesting Act. 5. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents. 6. In view of the submissions at the Bar, the first question to be considered is, whether the Tribunal is justified in finding that the application schedule properties are private forests as defined under Section 2(f)(1)(i) of the Vesting Act. It is trite law settled by this Court in **State of Kerala v. Chandralekha [1995 (2) KLT 152 (FB)]** that the burden of proof is heavy on the applicants to prove that the disputed properties were not private forest as on the appointed day and MFA(Forest).94/06 **:4:** the applicants are entitled to get exemption under Sections 3(2) and 3(3) of the Vesting Act, if it is a private forest. It is not disputed that the properties are situated in the erstwhile Malabar District, where the M.P.P.F Act applied before the appointed day, i.e, 10/5/1971. The Forest Tribunal found that R.W.1 the Range Officer has deposed in accordance with the contention raised by the respondents that the application schedule properties form part of “Nallekkavu Malavaram” having an area of 61 Hectares and the said Malavaram was lying contiguous with forest areas more than 100 Acres. Nothing has been brought out to discredit the evidence adduced by the 2[nd] respondent. In other words, the respondents have succeeded in proving that the application schedule properties were the lands to which M.P.P.F Act was applied immediately before 10/5/1971, as contemplated under Section 2(f)(1)(i) of the Vesting Act. But, the applicants had failed to prove that the M.P.P.F Act was not applied to the application schedule properties. Thus, it can be held that the applicants failed to discharge the burden of proof in this respect. 7. Then the question is, whether the applicants have succeeded in proving that the application schedule properties MFA(Forest).94/06 **:5:** were cultivated with tea, coffee, cardamom or rubber as on the appointed day, ie 10/5/1971, in order to get exemption under clause (C) of Section 2(f)(1)(i) of the Vesting Act. Absolutely, there is no evidence to prove that on the appointed day, ie. 10/5/1971, the application schedule properties were cultivated with the aforesaid crops. It is pertinent to note that neither in the application nor in the deposition of P.W.1 the applicants have disclosed the nature of fugitive crops allegedly cultivated before 10/5/1971. Thus, in the absence of evidence to prove the ingredients constituting the exemption contemplated under clause (C) of Section 2(f)(1)(i) of the Vesting Act, the Tribunal is justified in finding that the applicants miserably failed to discharge the burden of proof. Hence the finding that the application schedule properties would come under the 'private forest' stands justified. 8. The next point to be considered is, whether the Tribunal is justified in finding that the applicants are not entitled to get exemption under Sections 3(2) or 3(3) of the Vesting Act. Here also, it is to be remembered that the burden of proof is heavy on the applicants to prove the ingredients constituting exemption under Section 3(2) and 3(3) of the Vesting Act. MFA(Forest).94/06 **:6:** 9. Coming to the cultivation, the commission report shows that no cultivation was done in the disputed properties so far. It was obligatory on the part of the applicants to prove that as on the appointed day the application schedule properties were under cultivation by the applicants or their predecessorsin-interest. But, in the instant case, even at the time of visit of the commissioner, there was no sign of cultivation in the application schedule properties. Therefore, it can be safely concluded that the applicants failed to prove the requirements under sub-section (2) of Section 3 of the Vesting Act, and thereby they are not entitled to get exemption under the said provision of the Vesting Act. To prove exemption under section 3(3) of the Vesting Act, it was incumbent upon the applicants to prove that they have ownership and possession over the said properties under any valid document of title deed and the properties were under their personal cultivation and were within the ceiling limits under the Kerala Land Reforms Act as on 10/5/1971. It is the case of the applicants that the application schedule properties in O.A.No.11/2004 belong to them by virtue of Ext.A2 and the application schedule properties in O.A.No.11/2004 belong to them by virtue of Ext.A1. It is true MFA(Forest).94/06 **:7:** that those documents were executed before the appointed day ie. 10/5/1971. But, execution of the title deed before the appointed day alone is not sufficient to get a valid title. Section 3(1)(a) of the M.P.P.F Act provides that “no owner of any forest shall, without the previous sanction of the District Collector, sell, mortgage, lease or otherwise alienate the whole or any portion of the forest”. Section 3(1)(b) of the M.P.P.F Act further provides that any alienation in contravention of Clause (a) shall be null and void. We have already found that the application schedule properties are private forests. The applicants have no case that the permission as contemplated under Section 3(1)(a) of the M.P.P.F Act was obtained before the purchase of the application schedule properties by Ext.A2. Therefore, unless previous sanction of the District Collector was obtained, before purchasing a property to which M.P.P.F Act was applied, the sale shall be null and void and no valid title could be acquired under that sale deed. Consequently, Ext.A2 was null and void as contemplated under Section 3(1)(b) of the M.P.P.F Act. 10. Similarly, the applicants are claiming exemption as per Section 3(3) of the Vesting Act, under Ext.A1 partition deed dated 23/7/1959 in O.A.No.12/2004. It is true that Ext.A1 is a MFA(Forest).94/06 **:8:** registered document executed before the appointed day, ie. 10/5/1971. Here arises the question, can a partition deed be deemed to be a registered document of title contemplated under section 3(3) of the Vesting Act. Sub-section (3) of Section 3 excludes land held under a valid registered document of title executed before the appointed day, ie. 10/5/1971, and intended to be cultivated by the owner of the land, if the total extent of the land held by him does not exceed ceiling limit as per the provisions of the KLR Act. We are of the opinion that the said exemption is granted to the owner of a private forest, who acquired title by a valid registered document under the Transfer of Property Act. But, we find that since the partition deed makes division of the property only and does not make acquisition of property and conferment of title, thereunder, it shall not be deemed to be a valid registered document of title contemplated section 3(3) of the Vesting Act. Therefore, we hold that the partition deed alone would not come under the valid registered - document of title contemplated under sub section (3) of Section 3 of the Vesting Act, unless it is coupled with the prior registered document by which title was acquired prior to the partition deed. Therefore, exemption under section 3(3) of the Vesting Act cannot MFA(Forest).94/06 **:9:** be granted to the owners who are holding the private forest, under the partition deed, unless the prior registered deed by which title has been acquired before the appointed day is produced in evidence, along with the partition deed. 11. In the instant case, though Ext.A1 partition deed was one executed before the appointed day, no prior registered document, by which title had been acquired was not produced along with Ext.A1. Therefore, it cannot be held that the applicants have held the land under a valid registered document of title, as contemplated under section 3(3) of the Vesting Act. 12. The learned counsel for the appellants vehemently drew our attention to the judgment rendered by this Court in MFA No.168/1984 and contended that the observation made in the said judgment as regards Ext.A1 is binding on this Court also. But, at the same time, the learned counsel for the appellants himself admitted that the application schedule properties were not the subject matter in MFA No.168/1984. We are of the opinion that unless the application schedule properties were the subject matter in MFA No.168/1984 the judgment rendered in MFA No.168/1984 has no binding force in the instant case. Therefore, we find that the observation made MFA(Forest).94/06 **:10:** in the said judgment has no relevancy in the instant case while considering the questions referred above. In the above analysis, we find that the Tribunal has rightly appreciated the evidence on record, in view of the relevant provisions, and rendered the judgment. We do not find any reason to interfere with the findings of the Tribunal. Hence this M.F.A (Forest) will stand dismissed. Sd/- K.HARILAL, Judge. Sd/Judge. P.SOMARAJAN, okb.