State of Kerala v. Panchayali

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944** **MFA (FOREST) NO. 93 OF 2015** **AGAINST THE ORDER IN OA 28/2012 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA REP BY PRINCIPAL SECRETARY, FOREST & WILDLIFE DEPARTMENT, THIRUVANANTHAPURAM - 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE PALAKKAD DISTRICT-680253 BY ADV SRI.NARAGRAJ NARAYANAN, SPL. GOVT. PLEADER (FORESTS) ## **RESPONDENT/PETITIONER:** PANCHAYALI, W/O.AYYAPPAN, PULIYARANPARA HOUSE, KIZHUR POST, OTTAPPALAM, PALAKKAD DISTRICT – 680 523 BY ADV SRI.K.P.BALAGOPAL THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A[F].93/2015 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A.[F].No.93 of 2015 -------------------------------------Dated this the 14[th] day of February, 2023** ## **J U D G M E N T** ## **Jayachandran, J.** The State of Kerala, along with the Custodian of Vested Forest – respondents 1 and 2 in O.A. No.28/2012 of the Forest Tribunal, Kozhikode - are the appellants herein. The impugned order found that the scheduled property does not have the characteristics of a forest, but is a paramba, cultivated with fugitive crops. Accordingly, The Tribunal allowed the O.A, declaring that the scheduled property is not a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971 ['the Vesting Act', for short]. M.F.A[F].93/2015 3 ## **2.** The Facts: The scheduled property has an extent of 50 cents comprised in Survey Nos. 42/3, 5A and 69/1 of Thrikkadeeri-I Village, which along with other properties, originally belonged to Varikumanjery Mana as jenmom. Members of the Thekkeveettil tharwad obtained leasehold rights over such properties, which they perfected by obtaining jenmom rights. The properties were partitioned in the year 1980 vide Document no.1303/1980 and the disputed property, along with other items, were set apart to the share of one Seetha Amma and her son, vide item no.3 to the said deed. The properties were cultivated with various crops ever since the Thekkeveettil tharvadu obtained rights over the property. As per document no.631 of 1993, the applicant's husband Ayyappan purchased the rights of Seetha Amma and her son, which rights were again sold to one Abdul Rasack vide assignment deed no.2755/1999. It was from the said Abdul Rasack that M.F.A[F].93/2015 4 the applicant obtained jenmom rights over the property by virtue of assignment deed no.3368/2001. There are about 96 rubber trees in the disputed property, besides mango trees and others. The rubber trees are aged 38 years and three mango trees aged about 45 years. There is no natural growth in the scheduled property and the same is not a forest, governed by the Madras Preservation of Private Forest Act, 1949 [the M.P.P.F. Act, for short]. On 15.10.2012, the forest officials claimed rights over the property alleging that it is a vested forest. The property has no features of a forest and there was no notification issued as per the Vesting Rules. On such premise, the applicant/respondent sought for declaration that the scheduled property is not a private forest; and alternatively for exemption under Section 3(2) and 3(3) of the Vesting Act. **3.** The Divisional Forest Officer concerned filed counter statement contending that the scheduled M.F.A[F].93/2015 5 property is comprised in Sy. No.69/1 only, as against the three survey numbers shown in the O.A. The title deed/sale deed of the applicant, which was executed 30 years after the vesting took place, refers to the Sy. No.42/2. The applicant has to prove the identity of the property and he has no valid title over the same. The scheduled property is a forest land and vested with the Government as on 10.05.1971. The same is part of a huge malavaram by name 'Ananganmala', having an extent of 1015 hectares, notified as vested forest vide V.F.C item no.57. The boundaries are not tallying and as per the boundaries shown in the O.A, the land claimed is different from the scheduled property. The property was not cultivated as on the appointed day and applicant is not entitled to the benefit of Section 3(2) or 3(3) of the Act. On such premise, the respondent sought for dismissal of the O.A. **4.** The applicant's husband was examined as PW1, through whom Exts.A1 to A7 were marked. The Forest M.F.A[F].93/2015 6 Range Officer concerned was examined as RW1, who marked Exts.B1 to B3. The Commissioner's report and plan were marked as Exts.C1 and C2 respectively. **5.** The Tribunal relied upon **K.M.Abdu v. State of Kerala** [M.F.A.No.3 of 2007] to find that the scheduled property is not a forest, but only a paramba, cultivated with fugitive crops. In as much as the scheduled property is not a 'forest', the same cannot be a 'private forest' as held in **K.M.Abdu** supra. Accordingly, the O.A. was allowed, declaring that the scheduled property is not a private forest. The entitlement for exemption under Section 3(2) or 3(3) of the Vesting Act was found to be not arising for consideration, since the scheduled property was not found to be a private forest. **6.** Heard Sri.Nagaraj Narayan, learned Special Government Pleader (Forests) on behalf of the appellants and Sri. K. P. Balagopal, learned counsel M.F.A[F].93/2015 7 for the respondent/applicant. Perused the records. **7.** Having heard the learned counsel appearing on both sides, we endorse the submissions made by learned Special Government Pleader as regards the course adopted by the Tribunal in allowing the O.A by relying upon **K.M.Abdu** supra. We notice that the instant case is one which is liable to be covered by Section 2(f) (1)(i) of the Vesting Act, for, the appellants (respondents in the OA) maintain that the scheduled property is part of a huge malavaram by name 'Ananganmala', having an extent of 1015 hectares, which has been vested with the Government in terms of the Vesting Act. Exts.B1 and B2 notifications, supported by Ext.B2 periphery sketch would establish the said fact _prima facie_ . As held by a Full Bench of this Court in **State of Kerala** v. **Chandralekha [1995(2) KLT 152(F.B.)]** , the burden of proof is squarely upon the applicant to show that the scheduled property is not a private forest, in this case not covered by the M.F.A[F].93/2015 8 M.P.P.F. Act also, which burden is not seen assumed by the applicant, especially when the contention of the forest department is supported by Ext.B1 to B3 afore-referred. Up to this point, the Tribunal proceeded in the right direction to hold that the scheduled property was one to which the M.P.P.F. Act applied immediately before the appointed day. However, the Tribunal misdirected itself thereafter by addressing the question whether the scheduled property is a forest or not, toeing in line with **K.M.Abdu** supra, disregarding consideration of the exclusions under clauses (A) to (D) to Section 2(f)(1)(i), as also, the exemptions under Sections 3(2) and 3(3). In as much as the given facts are not governed by the definition of the private forest in terms of Section 2(f)(1)(ii), there was no warrant to ascertain whether the scheduled property is a forest or not. In omitting to consider the exemptions under Sections 3(2) and 3(3), again, the Tribunal placed reliance upon **K.M.** M.F.A[F].93/2015 9 **Abdu** supra to find that the applicant should first admit that the scheduled property is a private forest to claim the exemptions afore-referred. We cannot accept the above findings of the Tribunal. Once the Tribunal finds the applicability of the M.P.P.F Act, the Tribunal ought to have ascertained whether the scheduled property falls under any of the exclusions in clauses (A) to (D) of Section 2(f)(1)(i); or whether the applicant is entitled for the exemptions under Section 3(2) or 3(3) of the Act. This exercise is not seen done by the Tribunal, wherefore, we cannot uphold its findings. We notice that the course adopted by the Tribunal is squarely in the teeth of a Bench decision of this Court in **State of Kerala v** **Purushothaman [2018 (2) KLT 25],** where a similar order of the Tribunal was set aside. **8.** As regards the title of the applicant, as also, the identification of the scheduled property, we are again not in a position to endorse the findings of the M.F.A[F].93/2015 10 Tribunal. The Tribunal found in paragraph no.14 (at page no.12) that the title of the applicant over the application schedule property stands clearly proved by Exts.A1 to A4. Here, the incongruence of the survey number of the schedule property, as depicted in the title deeds and the one found by the Advocate Commissioner on measurement, escaped the notice of the Tribunal. The issue requires elaboration in detail. **9.** In the original application, the scheduled property has an extent of 50 cents and the Sy. nos indicated are 42/3, 5A and Sy.no.69/1. Along with the O.A., a copy of Ext.A4 title deed of the applicant and a sketch were produced. The Sy. no. shown in copy of Ext.A4 is 42/3A. In the sketch appended to the O.A, two Sy. Nos. are shown, i.e 42/5A and 69/1. Out of the 50 cents, 37 cents is comprised in Sy. No.42/5A and the remaining 13 cents in Sy. No.69/1. We will now refer to the oldest among the title deeds produced, M.F.A[F].93/2015 11 Ext.A1 of the year 1980, as per which, one Seetha Amma and her son - jointly referred to as “B thavazhi” in the document - got title to 50 cents of land in Sy. No.42/3A. By successive transfers from Seetha Amma and her son to Ayyappan (vide Ext.A2 of the year 1993), then to Abdul Rasak (vide Ext.A3 of the year 1999), from whom the applicant Panchayali ultimately got title to the scheduled property vide Ext.A4 document of the year 2001. In all these documents, the Sy. No. shown is invariably 42/3. There is no reference, whatsoever, to Sy. No.69/1, or for that matter, Sy. No.42/5A, as shown in the sketch appended to the O.A. **10.** However, the old Sy. No. shown in Ext.C2 plan, which forms part of Ext.C1 Commission report, is 69/1pt and new Sy.no. is 446/pt. Importantly, there is no reference to the Sy.no shown in the title deeds, i.e, 42/3A. The following observations of the Commissioner in Ext.C1 report is relevant and extracted here below. M.F.A[F].93/2015 12 'ഹരരിജരിഭഭാഗതത്തു നരിനത്തുന്നും ഹഭാജരഭാകരി തന രരഖ (Document bearing number 3368/2001 of S.R.O, Cherpulassery) അടരിസഭാനപപ്പെടത് രിയത്തുന്നും പറെവനനന്യൂ രരഖകൾ പ്രകഭാരവത്തുന്നും ഹർജരി പടരികവഹകൾ പരരിരശഭാധരിച്ചതരിൽ പടരികവഹകളത്തുപട സർപവ , , നമ്പർ കഭാണരിച്ചരിടത്തുള്ളത ശരരിയപലല്ലെനത്തുന്നും ടരി , /1 ( ) രരഖപ്രകഭാരമത്തുള്ള വസത്തു ഓൾഡഡ് സർപവ 69 പഭാർടഡ് ആപണനത്തുന്നും മനസരിലഭായരി.' It could thus be seen that, there exists nothing to connect the scheduled property - over which the applicant claims title by virtue of the documents produced – to the property identified by the Commissioner in the measurement. There is no document produced from the village office concerned to correlate the Sy.no. shown in the title deeds and the present Sy.no. of the property identified. **11.** In the fore-cited facts and circumstances, the only possible conclusion is that the applicant failed to prove the title to the scheduled property. In other M.F.A[F].93/2015 13 words, the applicant failed to identify the scheduled property in terms of the title deeds claimed and produced. The significance of identification of the property claimed under the Vesting Act was emphasized in a Bench decision of this Court in **Hamsa Haji v. State of Kerala** [2006(7) SCC 416] by observing thus: “30. We thus confirm the decision of the High Court and dismiss the appeal with costs. We hope that this judgment will act as an eyeopener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands sought to be claimed, while entertaining applications under Section 8 of the Act.” ## **[underlined by us for emphasis].** We are of the opinion that failure to identify the scheduled property in terms of the title deed would M.F.A[F].93/2015 14 dis-entitle the applicant from the reliefs claimed for. In as much as the applicant failed to establish that he held the scheduled property as its 'owner', the claim for exemption under Ss.3(2) or 3(3) also fails. **12.** Two other aspects also deserves consideration. The first is in respect of the cultivation claimed in the O.A, which is rubber. In Ext.C1 report, the Commissioner found the existence of 97 rubber trees, aged more than 35 years. The Commissioner inspected the property in the year 2014, wherefore, the age of 35 years takes us to the year 1979 only, whereas, the status/state of affairs prevailing in the scheduled property as on the appointed day, 10.05.1971, is to be looked into. Since there is a difference of almost 9 years, it is not within our realm to infer that the scheduled property was cultivated with rubber as on the appointed day. In this regard, we also notice that PW2, an alleged independent witness, also did not 15 M.F.A[F].93/2015 speak of the age of the rubber trees beyond 35 years. We therefore find that the claim for exclusion on account of the cultivation claimed is again not sustainable. **13.** The second aspect is that the oldest amongst the title deeds is Ext.A1 of the year 1980, that too a partition deed. We have no document depicting the state of affairs as on the appointed day. Moreover, as held by this Court in **Premakumari and others v. State of Kerala and another** [2017(4) KLT 531[, a partition deed makes only the division of the property, without any acquisition or conferment of title and therefore, cannot be deemed to be a valid registered document of title as envisaged in Section 3(3) of the Vesting Act. It was further held that a partition deed, to be reckoned as a valid registered document of title, should be coupled with the prior registered document, in which respect also the proof is found lacking in the given facts. M.F.A[F].93/2015 16 The inevitable result of the above discussion is that the order impugned cannot be sustained. This appeal succeeds; the impugned order is set aside; and the O.A. is dismissed. The parties shall bear their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE Sd/C.JAYACHANDRAN JUDGE** Sbna/