Shahul Hameed 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.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944** **MFA (FOREST) NO. 167 OF 2010 OA Nos.23/2000 & 24/2000 OF FOREST TRIBUNAL, KOZHIKODE MFA 41/2004 OF HIGH COURT OF KERALA** ## **APPELLANTS:** 1 SHAHUL HAMEED *** (DIED)** S/O.KUNHAMMED RAWTHER, CHEMPAMODE, KAVASSERRY, ALATHUR TALUK 2 VELLAKUTTY @ ASSANAR S/O.KUNHAMMED RAWTHER, CHEMPANODE, KAVASSERRY, ALATHUR TALUK ****** SUPPL. KULUMMA, W/O. LATE SHAHUL HAMEED, APPELLANT AGED 65 YEARS, THOTTATHIL HOUSE, 3 MARAKKAVU, ERUMAYUR.P.O., PALAKKAD DISTRICT. SUPPL. ABDUL RAHMAN, APPELLANT S/O.LATE SHAHUL HAMEED, 4 AGED 44 YEARS, THOTTATHIL HOUSE, MARAKKAVU, ERUMAYUR.P.O., PALAKKAD DISTRICT. SUPPL. KABEER, APPELLANT S/O.LATE SHAHUL HAMEED, 5 AGED 43 YEARS, THOTTATHIL HOUSE, MARAKKAVU, ERUMAYUR.P.O., PALAKKAD DISTRICT. SUPPL. ABBAS ALI, APPELLANT S/O.LATE SHAHUL HAMEED, 6 AGED 42 YEARS, THOTTATHIL HOUSE, MARAKKAVU, ERUMAYUR.P.O., PALAKKAD DISTRICT. SUPPL. JAMEELA, APPELLANT D/O.LATE SHAHUL HAMEED AND W/O SULAIMAN 7 MOOLAMKODEPOTTA, KIZHAKKANCHERRY, ALATHUR, PALAKKAD DISTRICT. ***(The word “Died” shown after the name of the 1[st] appellant as per order dated 13.9.2017 in I.A.No.3138/2017.) ** (SUPPLEMENTAL APPELLANTS 3 TO 7 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1[st] APPELLANT AS PER ORDER DTD.13.9.2017 IN I.A.3137/2017.)** BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT, GOVT OF KERALA, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD, OLAVAKKODE. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.(Forest)No.167 of 2010 ..2.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------M.F.A.(Forest)No.167 of 2010 ------------------------------------------------------------Dated this the 28[th] day of November, 2022 ## **JUDGMENT** ## C.Jayachandran, J. A common order of the Forest Tribunal, Kozhikode dismissing O.A. Nos. 23/2000 and 24/2000 is under challenge in this appeal. The O.As referred above were originally allowed by the Forest Tribunal, granting the applicants exemption under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act ( 'the Vesting Act' for short). The State, along with the Custodian of the Vested Forests, preferred an appeal as M.F.A.No.41/2004, which was allowed by the High Court, vide judgment dated 18.2.2009. The High Court found that the applicants sought for exemption under Section 3(2) of the Vesting Act, whereas the Tribunal granted exemption under Section 3(3) of the Vesting Act. The order was set aside and the case was remanded to the Tribunal, with a direction to consider the applicants' claim under Section 3(2) of the Vesting M.F.A.(Forest)No.167 of 2010 ..3.. Act. It was further directed to consider whether the applicants' parents, who were holding the scheduled properties as on the appointed day, had any land in excess of the ceiling limit prescribed under the Kerala Land Reforms Act. After remand, PW3 was also examined on the part of the applicants and RW2 on the part of the Forest Department. On an analysis of the facts, evidence and probabilities, the Tribunal rejected the claim holding that the applicants failed to prove 1) that their parents were the owners of the scheduled properties as on the appointed day, 2) that they were cultivating 'Pullani' and other seasonal crops at the relevant time and 3). that their parents were not holding any land in excess of the ceiling limit prescribed by the KLR Act. 2. Heard Sri.K.Mohanakannan, learned counsel for the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. 3. Learned counsel for the appellants contended that the O.As were initially allowed by the Tribunal, though granting the ## M.F.A.(Forest)No.167 of 2010 **==> picture [22 x 8] intentionally omitted <==** relief/exemption under Section 3(3), where also, the requirements of being the owner of the scheduled property, an intention to cultivate and the total extent held not exceeding the ceiling limit were very much the ingredients to be satisfied for an order enabling exemption under Section 3(3). The High Court interfered with the earlier order only for the technical reason that grant of relief under Section 3(3) was not proper, when the applicants urged exemption under Section 3(2). The evidence adduced by the applicants would clearly establish all the ingredients of exemption under Section 3(2), wherefore, dismissal of O.As. are contrary to law is the submission of the learned counsel. 4. Per contra, learned Special Government Pleader argued to sustain the impugned common order. It was pointed out that there is complete dearth of evidence insofar as the cultivation claimed to have been done in the properties and the applicants miserably failed to establish that their parents/predecessors were not holding land in excess of the ceiling limit under the KLR Act. As a matter of fact, the very recitals in Ext.A1 partition M.F.A.(Forest)No.167 of 2010 **==> picture [22 x 8] intentionally omitted <==** deed would indicate that the applicants' parents were possessing lands in excess of the ceiling limit, as indicated in the judgment of the Division Bench of the High Court in M.F.A.No.41/2004 and as rightly found in the common order impugned. No interference, whatsoever, is warranted to the impugned order, is the submission of the learned Government Pleader. 5. Having heard the learned counsel appearing on both sides, this Court will refer to the essential pleadings regarding the title claimed by the applicants in both the original applications. The applicants in O.A. Nos. 23/2000 and 24/2000 are brothers and their pleadings regarding derivation of title is the same and is as follows: 6. The properties scheduled in the O.As, along with other items, belonged to Nallekkavu Devaswom, with jenmom rights. The family of one Venkiteswara Pattar obtained kanam rights over the properties, from whom the father and mother of the applicants obtained verumpattam rights. In the family partition M.F.A.(Forest)No.167 of 2010 ..6.. which occurred in the year 1972 as per Ext.A1, the property scheduled in O.A.No.23/2000 was allotted to the share of the applicant/Shahul Hameed (vide item 9 to schedule H to Ext.A1) and the property scheduled in O.A.No.24/2000, to the share of the applicant/Vellakutti @ Assanar (vide item 7 to schedule F to Ext.A1). Both the applicants got kanam rights purchased in their favour from the kanari as per Exts.A3 and A4 respectively of the year 1978. The scheduled properties were planted with 'pullani', a shrub used for the purpose of green manure, for which reason, the property was known as 'valarthukadu'. 'Pullani' was cultivated along the borders and different selected areas; and the rest of the portions were cultivated with seasonal crops and seed beds. The applicants would specifically plead that the above referred cultivation was done as on 10.5.1971 and after a few years therefrom, 'pullani' cultivation was completely removed and seasonal crops were cultivated. As regards the ceiling limit, it was averred that both the applicants were not in possession of lands in excess of the ceiling limit. ## M.F.A.(Forest)No.167 of 2010 ..7.. 7. A Division Bench of this Court in State of Kerala v. C.J.Alexander [1993 (1) ILR Kerala 731] held thus, as regards the requirement of proof regarding Section 3(2) of the Vesting Act: “7....... _In order to get the benefit of Section 3 (2), the applicant should prove that he is the owner and further, there was personal cultivation in the land prior to the appointed day. The burden is on the applicant to prove the said facts. The said fact should be proved on solid and definite evidence. A finding on such facts cannot be entered on shaky and dubious materials. Mere statement by the party cannot form the basis for entering a finding in his favour.”_ 8. In State of Kerala v. Kunhiraman [1990 (1) KLT 382], another Division Bench held thus regarding the ingredients of Section 3(2), with concept of ownership expatiated: _“6. …..The person who claims protection under the said sub-section has to prove mainly three points. (1) That he held the land comprised in private forest as an owner. (2) That the said land was under his personal cultivation. (3) That the total extent of land under his cultivation is within_ M.F.A.(Forest)No.167 of 2010 **==> picture [22 x 8] intentionally omitted <==** _the ceiling limit applicable to him under the Kerala Land Reforms Act._ _7. Ownership contemplated in the sub-section 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 S.3(2) of the Vesting Act. …..”_ 9. With this prelude, we will first address the question of ownership. Admittedly, the applicants got title to the scheduled properties only in the year 1972, as per Ext.A1 partition deed. Therefore, as per the pleadings, their parents were the ownersin-possession of the property as on the date of vesting, 10.5.1971. Exts.A3 and A4 documents of the year 1978 specifically refer to the mode and manner in which the applicants' parents got title to scheduled property, that is to say, by execution of a white paper chit (വ�ള കടല�സ� പ�ട ശ�ട�) dated 4.4.1952 in favour of executant no.1 to Exts.A3 and A4, by name Krishna Iyer. The specific pleading in the O.As. as regards title is also based on the said white paper chit. However, no such title is seen traced in Ext.A1 partition deed of the year 1972. There is no reference, whatsoever, to any M.F.A.(Forest)No.167 of 2010 **==> picture [22 x 8] intentionally omitted <==** white paper chit in Ext.A1. Nor is any such chit produced before the Tribunal. 10. Another aspect touching ownership is with respect to the name of the kanari, specifically pleaded as Venkiteswara Pattar in both the O.As. However, Ext.A1 does not refer to the name of the said kanari. The names which could be seen in page no.2, paragraph no.1 of Ext.A1 are Mani Iyer of Easwara Pattar Gramam. We notice that though the name of Easwara Pattar Gramam is pleaded in the O.As, the name of Venkiteswara Pattar is not seen referred in Ext.A1. Be that as it may. 11. Another aspect touching ownership is the entry in Village records that the scheduled properties are vested forests, as taken note of by the Advocate Commissioner in Ext.C1 (see paragraph no.2, last sentence). 12. In the above referred state of affairs, we cannot find any infirmity with the finding of the Tribunal that the applicants have not satisfactorily established their ownership over the M.F.A.(Forest)No.167 of 2010 **==> picture [28 x 8] intentionally omitted <==** scheduled properties. 13. Now, we come to the cultivation claimed to have been done in the scheduled properties as on the appointed day. The specific pleading is with respect to the cultivation of 'pullani', as also, of seasonal crops and seed beds. Here, it is noteworthy that the applicants have not specified the nature of the seasonal crops, which were allegedly cultivated in the scheduled properties. It is also pleaded that 'pullani' was cultivated only for a few years, whereafter, seasonal crops were cultivated. As against the above pleadings, we find no evidence forthcoming in support thereof. Exts.C1 and C3 commission reports were of the year 2001, which can hardly offer any data as regards the cultivation, if any, in the scheduled properties as on the appointed day. There is no reference about any cultivation being conducted in the scheduled properties in Ext.A1 partition deed of the year 1972. Therefore, though Exts.C1 and C3 reports refer to cultivation of tapioca, etc., the same cannot vouch the state of affairs prevailing as on the appointed date and therefore, of no avail M.F.A.(Forest)No.167 of 2010 **==> picture [28 x 8] intentionally omitted <==** to ascertain whether the scheduled properties were held by the owners under their personal cultivation in terms of Section 3(2). 14. The last aspect is with respect to the ceiling limit prescribed under the KLR Act. Here, we notice that except the pleadings in the O.As, no evidence is seen adduced to prove that the applicants' parents – the owners of the property as on the appointed day – were not having land in excess of the ceiling limit prescribed by the KLR Act. As held in Alexander (supra), the interested testimony of the applicants is of no avail to establish the fact in issue. PW3, who claimed himself as a neighbour, spoke that both the applicants together have 10 acres of land, which version, however, is of little support, in the context of ascertaining lands, if any, held by the owners (applicants' parents) in excess of the ceiling limit. We notice that a certificate in terms of Rule 4 of the Kerala Private Forests (Exemption from Vesting) Rules, 1974, or for that matter, any other documentary evidence was never produced by the applicants to establish that their parents were not M.F.A.(Forest)No.167 of 2010 **==> picture [28 x 8] intentionally omitted <==** holding any land in excess of the ceiling limit, especially when Ext.A1 would prima facie indicate that the applicants' parents were holding several tracts of land in the year 1972, which would be the position as on the appointed date as well. We therefore find that this component forming part of Section 3(2) is also not established. The appeal is devoid of any merit and the same is therefore dismissed. Parties shall bear their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** skj