State of Kerala v. V.H. Rejimon & A.K. Mohammed Ali

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 MFA (FOREST) NO. 106 OF 2008** **AGAINST THE ORDER DATED 30.04.2008 IN O.A.NO.15/2006 OF THE FOREST TRIBUNAL, KOZHIKODE** ## **PETITIONERS/:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT.** **BY SRI.NAGARAJ NARAYANAN, SPL.GOVERNMENT PLEADER** ## **RESPONDENTS/RESPONDENTS:** - **1 V.H.REJIMON, S/O.HAMSA, VARIKKAMANIL HOUSE, THODUPUZHA EAST, THODUPUZHA, TALUK.** - **2 A.K.MOHAMMED ALI, S/O.A.K.ALAVI ATTUKANDATHIL, VAZHAYAMPURAM,, KARAKURUSSI, MANNARKKAD TALUK.** **(BOTH THE RESPONDENTS REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER RAJENDRAN, S/O.KUMARAN,, MANGALATH VEEDU, DHONI FARM, PUDUPARIYARAM, PALAKKAD** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON** **04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MFA(Forest) No.106/2008 **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ----------------------------------------------M.F.A.(Forest) No.106 of 2008 ----------------------------------------------Dated this the 04[th] November, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** **The appeal by the State is against the order of the Forest Tribunal under the Kerala Private Forests [Vesting and Assignment] Act, 1971 [for brevity, 'the Vesting Act']. The prayer of the applicants, for excluding the 2 Acres of land, scheduled, from private forests under the Madras Preservation of Private Forest Act, 1949 [for brevity, 'the MPPF Act'] was allowed by the Tribunal.** ## **2. The applicants claimed exclusion and** **exemption for an extent of 2 Acres of land comprised in Old Survey No.283/2 [New Survey No.38/5] of Mundur II Village in Palakkad Taluk and** **3** MFA(Forest) No.106/2008 **District. The respondents claimed that, the said properties were part of a vested forest on the Koduvangattu malavaram [slope of a hill] with a total extent of 108.85 Hectares. The applicants traced the title to Mundur Kizhakke Variam, who had Jenmam, through one Santhu Rowther, who is said to have obtained verumpattam rights in 1952. The legal heirs of Santhu Rowther partitioned the property after his death as per a registered document of SRO, Parli, in which the 'D' schedule was allotted to one of the sons, Haneefa Rowther. Haneefa Rowther, by two registered deeds, is said to have conveyed two plots, one of 1 Acre 50 cents and the other of 50 cents to one Gopalakrishnan [A3 & A4]. Gopalakrishnan transferred the entire 2 Acres in favour of one Lourd Raj as per A5, whose power of attorney [as per A6] executed A7, by which the applicants obtained the said properties. The applicants claimed that the properties were** **4** MFA(Forest) No.106/2008 **existing on level ground and not on a slope and that there were captive fugitive crops raised in the property, which also did not contain any forest species trees.** **3. The Tribunal held that the scheduled property is not a private forest, especially finding that the predecessors-in-interest of the applicants had possession of the scheduled property from 1952 under verumpattam right and there was no fugitive crops in the property. The Tribunal also considered the claim under S.3(2) & 3(3) of the Vesting Act and rejected the ground of exemption on the ground that there was no title proved, of the applicants or their predecessors-in-interest, as on the appointed day.** **4. We cannot but notice that if there is no title found, there can also be no dispute raised on the exclusion of the properties from the MPPF Act. We cannot also accept the finding of the** **5** MFA(Forest) No.106/2008 **Tribunal that the predecessors-in-interest of the applicants were proved to have possession of the scheduled property, from 1952 and there were fugitive crops in the property as on the appointed day. The partition deed produced, in proof of title, is of the year 1972, specifically 14.06.1972, whereas the appointed day is 10.05.1971 under the Vesting Act. Merely for the assertion of a verumpattam right from the year 1952, there is nothing produced to prove the said right having been acquired or any cultivation being carried out in the property as on the appointed day.** **5. The Tribunal, to find that the scheduled property is not a private forest, had merely looked at the notification, wherein there was no clarity as to the scheduled property being included. It has to be noticed that in** _**State of Kerala v. Kunhiraman [1990 (1) KLT 382],**_ **a Division Bench of this Court and in S** _**tate of Kerala v. Chandraleka [1995 (2) KLT**_ **6** MFA(Forest) No.106/2008 _**152 (FB)]**_ **, a Full Bench of this Court, held that the burden of proof to establish that the scheduled property is not a private forest lies on the applicant, who asserts the fact and approaches the Tribunal. In** _**State of Kerala v. Popular Estates [(2004) 12 SCC 434],**_ **the Hon'ble Supreme Court also affirmed the above legal position. Vesting as per the Vesting Act occurs statutorily and does not depend on the notification.** **6. It is also pertinent that the applicant did not examine any of his predecessors-ininterest, who was/were holding the property as on the appointed day or the person who had specifically been allotted the property in the partition deed. PW1, who was examined before the Tribunal, on behalf of the applicants, was the power of attorney holder. We have seen his deposition from the records, which indicates his testimony having first traced the title on the** **7** MFA(Forest) No.106/2008 **basis of the documents produced as A1 to A7. He has specifically testified that, on the boundaries of the scheduled property, there is rubber cultivation as also properties bounded by private holdings. However, he does not have a contention regarding any cultivation carried on, in the property. He also does not assert any personal knowledge regarding the property,the predecessors-in-interest and the lie or nature of the cultivation carried on in the property as on the appointed day. In crossexamination he admitted that he has absolutely no knowledge regarding the status of the properties, prior to 2005 and his knowledge is exclusively from the documents produced. To specific suggestions in cross-examination that the property is comprised within 100 Acres situated in Koduvangatt Malavaram and that it is covered under the MPPF Act, he responded that he does not know. We cannot but find that the finding of the Tribunal** **8** MFA(Forest) No.106/2008 **that the property is not a private forest is not correct and there is complete lack of evidence to hold so. The applicants made absolutely no attempt to prove the fact or even depose on the fact.** **We find no reason to uphold the order of the Forest Tribunal and we set aside the same, allowing the appeal filed by the State and rejecting the application filed before the Tribunal. Parties are left to suffer their** ## **respective costs.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **sp/08/11/2022**