Thanka (deceased) and others v. State of Kerala and Custodian of Vested Forests (MFA No. 56 of 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937 MFA.No. 56 of 2006 ( ) ----------------------- AGAINST THE ORDER IN OA 18/2004 of FOREST TRIBUNAL, KOZHIKODE DATED 18-10-2005 APPELLANTS/PETITIONERS: ---------------------- ***** 1. THANKA (DIED) 2. MOHANDAS. 3. BALACHANDRAN. 4. USHA. 5. SHEELA. 6. GEETHA. 7. JAYAPRAKASH. 8. SHEEBA. 9. SHEENA. APPELLANT NO.1 IS THE WIFE AND APPELLANT NOS.2-9 ARE CHILDREN OF LATE MADHAVAN, ARMANKODE, NOCHULLI,COYALMANNAM, ALATHUR TALUK. ***** IT IS RECORDED THAT THE 1ST APPELLANT IN MFA 56/06 IS DEAD AND THAT APPELLANTS 2-9 THEREIN ARE THE LEGAL HEIRS OF THE DECEASED AS PER ORDER DATED 04.02.2016 IN MEMO FILED (03.07.13) BY THE COUNSEL FOR THE APPELLANT. BY ADV. SRI.VINOD KUMAR.C RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA, REP.BY CHIEF SECRETARY, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, OLAVAKKODE, PALAKKAD. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN MFA No.56/2006** APPELLANT'S EXT: EXT.A6: CERTIFIED COPY OF DOCUMENT No.467/1943 DT.11.3.1943. RESPONDENTS' EXTS: NIL TRUE COPY P.S.TO JUDGE dsn ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ. ----------------------------------------------M.F.A.No.56 of 2006 ----------------------------------------------Dated this the 4[th] day of February, 2016** ## **JUDGMENT** ## Anil K. Narendran, J. The appellants herein are the petitioners in OA No.18/2004 on the files of the Forest Tribunal, Kozhikode, an application filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as 'the Vesting Act'), claiming exemption in respect of 1.64 acres of land comprised in Sy.Nos.427/1, 427/2 & 426/3 of Kuzhalmannam Village, Alathur Taluk in Palakkad District. They sought for a declaration that the petition schedule property is not a private forest, and as such, claimed exemption from vesting under the Vesting Act. The said petition was dismissed by the Forest Tribunal as per order dated 18.10.2005. It is aggrieved by the said order, the appellants are before this Court in this appeal, under Section 8A of the Vesting Act. 2. We heard the learned counsel for the appellants and also the learned Special Government Pleader on behalf of the M.F.A. No. 56 of 2006 ..2.. respondent State. 3. Going by the pleadings, the case of the appellants is that the petition schedule property is part of a large holding, which belonged in jenm to Nellekkavu Devaswom. The said holding was outstanding on kanam demise in favour of a joint family under Document No.467/1943. The leasehold land consisted of paddy fields, parambas, tanks etc. In the family partition, the petition schedule property was allotted to one Madhavan as item No.4 in the C schedule to the partition deed. Accordingly, the petition schedule property was possessed and enjoyed by the said Madhavan as on 10.05.1971. The appellants herein are the legal heirs of the said Madhavan. Before the Tribunal, the appellants contended that they are cultivating the property as before and that there was no notification in respect of the disputed property. The land was not a private forest and as such, provisions of the Madras Preservation of Private Forests Act (hereinafter referred to as, 'the MPPF Act') did not apply to it. They also contended that Madhavan and his joint family did not possess properties exceeding the ceiling limit. 4. The respondents filed counter affidavit, contending M.F.A. No. 56 of 2006 ..3.. that an extent of 61 hectares of land, lying in various villages, including Kuzhalmannam in Alathur Taluk, was governed by the erstwhile MPPF Act. The said area was surveyed, demarcated and notified as vested forest and the notification was duly published, and the petition schedule property lies within the notified vested forest. The vested area is locally known as Nallekkavu Malavaram. The respondents contended that the appellants have no _locus standi_ to file the petition for want of title to the land claimed and that the disputed land was not brought under cultivation at any point of time. It was also contended that the attempt of the appellants is to grab forest land and that, they are not entitled to get exemption from vesting under the Vesting Act and that, the petition is barred by limitation. 5. Before the Tribunal, the 2[nd] appellant was examined as PW1 and Exts.A1 to A5 were marked on the side of the appellants. The respondents have not chosen to adduce any oral or documentary evidence. The report submitted by the Advocate Commissioner, who inspected the property on 11.01.2005, and the Survey Plan were marked as Exts.C1 & C2. M.F.A. No. 56 of 2006 ..4.. 6. After considering the pleadings and materials on record, the Tribunal concluded that the petition is not barred by limitation since the respondents/State failed to prove that the notification was duly published. Based on the pleadings and materials on record, including Ext.C1 report submitted by the Advocate Commissioner, the Tribunal concluded that the petition schedule property was a private forest as on the appointed day and that, the appellants failed to prove that MPPF Act did not apply to the said property immediately before the appointed day. Since the appellants have no case that the petition schedule property was cultivated with cashew or other fruit bearing trees and the contention that the property was under fugitive cultivation as on the appointed day was vague, in as much as the precise fugitive crops under cultivation were not disclosed in the petition, the Tribunal held that the petition schedule property will not come within the purview of Section 2(f)(1)(i)(C) of the Vesting Act. Regarding the exemption claimed by the appellants under Section 3(2) of the Vesting Act, the Tribunal held that the appellants failed to prove title to the property and hence the first limb of Section 3(2) is not satisfied. There is also no proof to show that the disputed land M.F.A. No. 56 of 2006 ..5.. was held under cultivation and hence the second limb of Section 3(2) is also not satisfied. Regarding the exemption claimed by the appellants under Section 3(3) of the Vesting Act, the Tribunal held that the appellants failed to prove the existence and contents of a valid registered document of title executed before the appointed day and hence the first limb of Section 3(3) is not satisfied. As the land still lies uncultivated, and in the absence of any evidence that it was cultivated after the appointed day, it cannot be said that there was intention to cultivate the land and hence the second limb of Section 3(3) is also not satisfied. In the above circumstances, the Tribunal held that the appellants are not entitled for exemption under Sections 3(2) or 3(3) of the Vesting Act; and accordingly, the petition was dismissed. 7. During the pendency of this appeal, the 1[st] appellant died and the learned counsel for the appellants filed a memo dated 03.07.2013 to declare that appellants 2 to 9 are the legal heirs of the deceased 1[st] appellant, who are already in the party array, and no other person need to be impleaded as his legal heir. The said memo was recorded by order dated 04.02.2016. M.F.A. No. 56 of 2006 ..6.. 8. The appellants have also filed I.A.No.2299/2013 under Order XLI Rule 27 of the Code of Civil Procedure to accept the certified copy of Document No.467/1943 dated 11.03.1943 as additional document. 9. The learned counsel for the appellants contended that, the finding of the Tribunal regarding the status of the petition schedule property as on 10.05.1971 is legally unsustainable and that the Tribunal has not properly appreciated Ext.C1 report submitted by the Advocate Commissioner. The learned counsel contended further that, the entire area was being cultivated with fugitive crops and tapioca and that the Advocate Commissioner failed to notice the preparations made by the appellants for doing such cultivation. 10. Regarding the finding of the Tribunal that the appellants have neither produced any document nor substantiated their title to the property as on the appointed day, the learned counsel for the appellants would point out that Document No.467/1943 dated 11.03.1943, produced as additional document along with IA No.2299/2013 would prove that as on the appointed day Madhavan was having title over the petition schedule property. The learned counsel for the M.F.A. No. 56 of 2006 ..7.. appellants would also contend that, the petition filed before the Tribunal contains sufficient pleadings regarding the cultivation in the petition schedule property. 11. _Per contra_ , the learned Special Government Pleader would contend that, the finding of the Tribunal that the appellants are not entitled for exemption under Sections 3(2) or 3(3) of the Vesting Act is perfectly legal, which warrants no interference in this appeal. The documents and materials before the Tribunal would not, in any manner, indicate that the petition schedule property was held under personal cultivation or intended for cultivation as on the appointed day. The learned Special Government Pleader would also point out that the Advocate Commissioner, who inspected the property on 11.01.2005, did not report any cultivation in the petition schedule property, which would indicate that as on the appointed day, no cultivation was there in the petition schedule property. 12. The Vesting Act provides for the vesting in the Government of private forests in the State and for assignment thereof to agriculturists and agricultural labourers for cultivation. It was enacted by the State as a measure of M.F.A. No. 56 of 2006 ..8.. 'agrarian reform', so as to give effect to the Governmental policy of 'grow more food'. Section 3(1) of the Vesting Act provides for vesting of private forests in Government, subject to the provisions of sub-sections (2) and (3) of the said Section, with effect on and from the appointed day, i.e., 10.05.1971. By virtue of Section 3(1) of the Vesting Act, the vesting is automatic, as held by the Full Bench of this Court in **Bhargavi Amma v. State of Kerala (1997 (2) KLT 513)** . The notification to be issued, specifying the particulars of the property so vested, is only a procedural formality to be completed. 13. The Vesting Act contemplates two situations, where a person can aspire to have his properties outside the purview of Act, the first one by virtue of the 'exclusion' of the property in terms of the definition of the term 'private forest' under Section 2(f) of the Vesting Act and other one is by way of 'exemptions' under Section 3(2) or 3(3) of the said Act. 14. Section 2(f)(1)(i)(C) of the Vesting Act reads as follows: “2(f) “private forest” means - (1) in relation to the Malabar district referred to in M.F.A. No. 56 of 2006 ..9.. sub-section (2) of Section 5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956) (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day, excluding- (A) xxxxxxx (B) xxxxxxx (C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop. 15. A reading of Section 2(f)(1)(i)(C) of the Vesting Act would show that, in order to attract the exclusion contemplated under the above provision, the property in question should be a land which is principally cultivated with cashew or other fruit bearing trees or is principally cultivated with any other agricultural crop, immediately before the appointed day. ## 16. Section 3 of the Vesting Act reads as follows; ## “ **3. Private forests to vest in Government.-** (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of subsections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in M.F.A. No. 56 of 2006 ..10.. any private forest shall stand extinguished. (2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto. Explanation.- For the purpose of this sub-section, “cultivation” includes cultivation of trees and plants of any species. (3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling are applicable to him under Section 82 of the said Act. (4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub-section (2) or sub-section (3), be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be “other dry lands” specified in Schedule II to the said Act.” 17. A reading of Section 3(2) of the Vesting Act would show that, in order to attract the provisions under the said sub-section, the property in question should be under 'personal cultivation' of the owner as on the appointed day. As as far as Section 3(3) is concerned, such owner should hold a valid title M.F.A. No. 56 of 2006 ..11.. on the strength of a registered document, which is executed before the appointed day, and the property should be intended for cultivation. 18. In State of **Kerala v. Kunhiraman (1990 (1) KLT 382)** a Division Bench of this Court held that the burden is on the claimants to prove that the land in question was not private forest on the appointed day. Later, a Full Bench of this Court in **State of Kerala v. Chandralekha (1995 (2) KLT 152)** , in the context of Section 8 of the Vesting Act held that, it is for the person who claims that the land is not a private forest or that the private forest has not vested in the Government to apply before the Tribunal for decision of the dispute. The person who prefers a claim before the Tribunal that the property is not private forest or that it has not vested under the Vesting Act has the burden to establish his case. As he alone can produce necessary evidence in support of his case it can never be held that the onus of proof is on the State to prove that the land in question is a private forest. The burden is squarely upon the claimant to substantiate his claim. 19. In the instant case, the evidence on record, consists of the oral evidence adduced by the 2[nd] appellant as PW1 and M.F.A. No. 56 of 2006 ..12.. Exts.A1 to A5 marked on the side of the appellants. Ext.C1 is the report filed by the Advocate Commissioner dated 19.3.2005 and Ext.C2 is the survey plan. As held by the Division Bench of this court in Kunhiraman's case (supra), the burden is on the appellants to prove that the land in question was not a private forest as on the appointed day. 20. Going by Section 2(f)(1)(i) of the Vesting Act, private forest means in relation to Malabar district referred to in sub-section (2) of Section 5 of the State Reorganisation Act, 1956, any land to which the MPPF Act, 1949 applied immediately before the appointed day, excluding the category of lands covered by clauses (A) to (D). Admittedly, the petition schedule property situates in Kuzhalmannam Village, which falls within the erstwhile Malabar district. Therefore, it was for the appellants to prove that MPPF Act did not apply to the petition schedule property immediately before the appointed day. The specific contention raised by the respondents was that the petition schedule property is within the Nallekkavu Malavaram having an extent of 61 hectares. However, no attempt was made by the appellants to prove that the petition schedule property is not part of that Malavaram or M.F.A. No. 56 of 2006 ..13.. that it does not lie contiguously with other forest areas having an extent of more than 100 Acres. Though a commission was taken out at the instance of the appellants, the Commissioner was not asked to report whether the disputed land is comprised in the Malavaram and if so, whether or not it lie contiguously with other forest areas having an extent of more than 100 Acres. It was in the aforesaid circumstances, the Tribunal came to the conclusion that the appellants failed to prove that the MPPF Act did not apply to the disputed property immediately before the appointed day. The finding of the Tribunal in this regard is neither perverse nor patently illegal, warranting an interference in this appeal. 21. The next contention raised by the appellants before the Tribunal was their claim for exclusion of the land under Section 2(f)(1)(i)(C) of the Vesting Act. The aforesaid clause deals with lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any agricultural crop immediately before the appointed day. Going by the very terminology of clause (C) referred to above, the intention of the legislature appears to be that the cultivation has necessarily to be substantial in nature so as to make the M.F.A. No. 56 of 2006 ..14.. property principally cultivated with cashew, other fruit bearing trees or any other agricultural crop. 22. The appellants have no case before the Tribunal that the petition schedule property is principally cultivated with cashew or other fruit bearing trees. As evident from Ext.C1 Commission Report, no such trees were available in the petition schedule property as on 19.3.2005. The contention raised in the petition filed before the Tribunal is that, the petition schedule property was held under fugitive cultivation as on the appointed day. However, such contention was vague in as much as the precise fugitive crop used to be cultivated before the appointed day are not disclosed in the petition. At the time of trial, PW1 deposed that the petition schedule property was cultivated with tapioca and pea. However, the said plea was not supported by any specific pleadings. PW1 has also deposed that the petition schedule property was divided into compartments for cultivation. However, the Commissioner who inspected the property and submitted Ext.C1 report did not report any sign or symptom of any such cultivation in the petition schedule property and he has reported in categorical terms that the said property lies M.F.A. No. 56 of 2006 ..15.. without any cultivation. 23. During the pendency of this appeal, the appellants filed I.A.No.2299 of 2013, an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, seeking an order to accept certified copy of Document No.467/1943 dated 11.3.1943 of the Sub Registrar Office, Kuzhalmannam, as additional document. The aforesaid document is one referred to in Ext.A1 partition deed dated 7.4.1974. The reason for not producing this document at the time of trial is not disclosed in the affidavit accompanying to I.A.No.2299 of 2013. Going by the provisions under Order XLI Rule 27 of the CPC, an additional document can be accepted only if due diligence is established, despite which the party could not produce the same before the trial court. No explanation is forthcoming from the appellants in this regard. However, we notice that, though a copy of I.A.No.2299 of 2013 was served on the respondents on 20.8.2013, they have not chosen to file any counter affidavit opposing the prayer in the said application. We also notice that Document No.467/1943 of SRO, Kuzhalmannam is a document referred to in Ext.A1 partition deed, which is already on record. In that view of the matter, M.F.A. No. 56 of 2006 ..16.. we find it appropriate to look into the additional document produced along with I.A.No.2299 of 2013, in order to ascertain whether it would prima facie enable the appellants to establish their case. Accordingly, I.A.No.2299 of 2013 is allowed and Document No.467/1943 of SRO, Kuzhalmannam dated 11.3.1943 is marked as Ext.A6. 24. Relying on the additional document, the appellants would contend that the petition schedule property, which originally belonged to Nellekkavu Devaswom, was held by the family of Madhavan on the strength of the said document of the year 1943. They would also contend that, in the family partition of the year 1974, the said property was allotted to Madhavan as evidenced by Ext.A1 partition deed. However, the recitals in Ext.A6 would not indicate as to whether the said property was under cultivation with any agricultural crops. The mere description of the property as 'vacant paramba' in the said document is not at all sufficient to arrive at a conclusion that the said property was principally cultivated with any agricultural crops or was under personal cultivation of the family of Madhavan or was intended for cultivation as on the appointed day. Therefore, Ext.A6 will in no way support the M.F.A. No. 56 of 2006 ..17.. claim of the appellants for exclusion of the petition schedule property from vesting. 25. As borne out from Ext.C1 commission report and Ext.C2 survey sketch, the petition schedule property lies as an uncultivated land having an extent of 1 Acre and 4 cents. The said extent of land is shown as forest land in Ext.C2 survey sketch. Going by Ext.C1 commission report 25 teak trees (2022 years age), 20 palm trees (20-22 years age), 4 veppu trees (20-22 years age) and 5 silk cotton trees (18-20 years age) are standing on the petition schedule property, which are all forest species trees. Though Ext.C1 Commission report was filed during March, 2005, the appellants have not chosen to file any objection. They have also not taken any steps to examine the Advocate Commissioner. It was based on the available materials, the Tribunal came to the conclusion that the petition schedule property was a private forest as on the appointed day. 26. Though the appellants claimed the benefit of subsections (2) and (3) of Section 3 of the Vesting Act, in order to attract the provisions under the said sub-sections, the property in question should be under personal cultivation of the M.F.A. No. 56 of 2006 ..18.. appellants as on the appointed day and they should hold a valid title on the strength of a registered document, which is executed before the appointed day and the property should be intended for cultivation. As we have already noticed, there is nothing on record to indicate that the petition schedule property was held by the appellants under their personal cultivation as on the appointed day. Though, the additional document produced along with this appeal would indicate the title over the property on the strength of a valid registered document executed before the appointed day, there is absolutely no material to indicate that the said property was held with an intention to cultivate. Ext.C1 Commission Report make it explicitly clear that the petition schedule property lies uncultivated. In the absence of any materials to show that the said property was cultivated after the appointed day, it cannot be said that there was an intention to cultivate the said property. In that view of the matter, the Tribunal cannot found fault with in dismissing the petition filed by the appellants holding that they are not entitled to exemption either under Section 3(2) or 3(3) of the Vesting Act. In the result, we find absolutely no grounds to interfere M.F.A. No. 56 of 2006 ..19.. with the judgment of the Tribunal. The appeal fails and the same is dismissed. bka Sd/- **P.R.RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** True copy P.S.to Judge