VESU @ SAVITHRI AMMA v. STATE OF KERALA & CUSTODIAN OF VESTED FOREST

# `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. 85 OF 2015` ``` AGAINST THE JUDGMENT IN O.A.NO.3/2012 OF FOREST TRIBUNAL, KOZHIKODE ``` ## `- PETITIONER/APPELLANT :` ``` VESU @ SAVITHRI AMMA AGED 68 YEARS D/O.PARVATHI AMMA, CHORAKKUNNATH HOUSE, KALLUVAZHI DESOM, ADAKKAPUTHUR, OTTAPALAM TALUK. ``` ``` BY ADV SRI.JACOB SEBASTIAN ``` ## `- RESPONDENTS :` ``` 1STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY (FOREST & WILD LIFE), THIRUVANANTHAPURAM-695 001. ``` ``` 2CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD-678 002. ``` ``` BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ``` ``` THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.F.A (Forest) No.85 of 2015 ``` ``` 2 ``` **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------M.F.A (Forest) No.85 of 2015 ------------------------------------------Dated this 14[th] February, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The appeal is filed by the applicant against the order of the Forest Tribunal rejecting the application filed under Section 8 of the Kerala Private Forest (Vesting & Assignment) Act, 1971 (for brevity ‘the Vesting Act’). The applicant is concerned with 48 cents of a property situated in Sy.No.103/5pt. (Re.Sy.No.192/3) of Vellinezhi Village, Ottappalam Taluk, Palakkad District. The applicant claimed that the property devolved upon the applicant as per Ext.A2 document, a partition deed executed in the family of the applicant. It was also asserted that the property was being cultivated from 1920 onwards and disturbance was caused to the possession and enjoyment in the year 2012 by the local ``` M.F.A (Forest) No.85 of 2015 ``` ``` 3 ``` officials of the Forest Department. It is also claimed that there was no notification of the scheduled property as vested and if at all a notification is brought out, it has not been published in accordance with the statutory rules. It was contended that the land is not covered under the Madras Preservation of Private Forest Act, 1949 (for brevity ‘the MPPF Act’), it is devoid of forest growth, it lies as a dry land and it is full of cultivated trees, with similar properties on all the boundaries. 2. The respondent, Divisional Forest Officer, Palakkad asserted that the scheduled property forms part of a huge malavaram known as ‘Kolakadanmala’ having a total extent of 133.91 hectares clearly covered under the MPPF Act. It was alleged that the entire area was notified as vested forest on 10.10.1979 and the applicant herself had filed an application under Section 8 of the Vesting Act with respect to certain other properties owned by her; on which land exemption was declared. The present application is merely experimental trying to grab properties which are not actually ``` M.F.A (Forest) No.85 of 2015 ``` ``` 4 ``` in the ownership or possession of the applicant. The boundaries were disputed and so was the cultivation; which was asserted to be forest species trees and undergrowth. The plea of limitation was raised specifically pointing out that the applicant filed the earlier application with the knowledge of the notification, Ext.B1 which included the present property and also the other proprieties covered by the earlier application, along with larger extents which were statutorily vested under the Vesting Act. 3. The applicant examined herself as PW 1 and two neighbours as PWs 2 & 3 and marked Exts.A1 to A3 documents. RW1, the Range Forest Officer was examined who marked Ext.B1-notification, Ext.B2-sketch and Ext.B3 to B5 being respectively the Order, the Commission Report and the additional Commission Report in O.A.No.6/86 filed by the identical applicant. The Tribunal also marked Ext.C1Commission Report and Ext.C2-Plan filed in the instant O.A. 4. The Tribunal found that the O.A is barred by limitation especially looking at the earlier O.A filed; which ``` M.F.A (Forest) No.85 of 2015 ``` ``` 5 ``` even according to the applicant was concerned with adjacent properties. The Tribunal then examined whether the scheduled land is covered under Section 2(f)(1)(i) or (ii) of the Vesting Act. It was found that the scheduled lands were covered under the MPPF Act and hence, remain so even as on the appointed day under the Vesting Act. The scheduled land was private forest as defined under section 2f (1)(i) of the Vesting Act. It was found from Ext.B1-notification and the deposition of RW1 that the property forms part of ‘Kolakadanmala’ which is item No.91 in Ext.B1-notification. The applicant had not proffered any evidence against the applicability of MPPF Act as is required by binding precedents nor claimed exclusion under clauses (A) to (D) of Section 2(f)(1)(i). The claim under sections 3(2) and (3) of the Vesting Act was also examined. It was held that the claim was under Section 3 (3) since the applicant asserted that she held the property under a registered deed, Ext.A2. It was found that Exts.A1 and A2 would show that large extents of properties also comprising the application scheduled ``` M.F.A (Forest) No.85 of 2015 ``` ``` 6 ``` property originally belonged to ‘Trikkottu Vayalil Devaswom’ which was outstanding in the possession of the family of the applicant as per ‘kanam demise’. The Tribunal found that title seems to be established on the applicant. However, there was nothing to show an intention to cultivation despite a pleading that the scheduled property was being cultivated with dry crops prior to 10.05.1971. The precise nature of cultivation has not been disclosed in the petition and there was no testimony regarding that in the box by PW1. The independent witnesses also failed to speak of any specific cultivation and the extent of the property referred to by them was far larger than the extent scheduled. None of the witnesses had any knowledge about the cultivation or the intention to cultivate as on 10.05.1971. The report of the Commissioner also does not indicate any intention to cultivate and the trees found in the property were only 7 to 20 years old. The applicant also did not prove that she only held lands below the ceiling limit under the Land Reforms Act. The cumulative effect of the above findings resulted in ``` M.F.A (Forest) No.85 of 2015 ``` ``` 7 ``` the rejection of the application. 5. We have given our anxious consideration to the arguments addressed before us and have also perused the records of the case. Ext.A1 is said to be the partition deed of 1920, where the mother of the applicant was a party. However, it is very difficult to trace out the property from the schedules especially for reason of the original deed produced having disintegrated due to age. Ext.A2 indicates the name of the applicant as party no.8 forming part of branch 4 of the family. According to the appellant’s counsel, the description of the scheduled property is seen as item No.4 in D-schedule of Ext.A2, which was set apart for the 4[th] branch of the family in which the applicant was also included. We see that the earlier O.A was with respect to 1 acres 60 cents which is seen as item No.2 in D-schedule to Ext.A2. Item No.4 referred to by applicant’s counsel has a total extent of 72 cents which is larger than the extent shown in the schedule to this application. The title to the application scheduled property hence cannot be deciphered clearly from Exts.A1 ``` M.F.A (Forest) No.85 of 2015 ``` ``` 8 ``` and A2 documents, the schedules of which also does not indicate the survey number of the various properties scheduled thereunder. 6. Ext.A3 is a certificate issued by the Tahsildar which speaks of the applicant having possession of 3 acres 52 cents in Sy.No.103/5 of Vellinezhi village, Kalluvazhi desom which also includes a kudiyirippu property. The certificate issued proclaims that the land is not included under the MPPF Act; which the Tahsildar is not competent to declare. The Tribunal has found that the scheduled property is covered under the MPPF Act. We find no reason to deviate from the said finding especially considering the fact that the vested forest as surveyed and demarcated, comprises an area exceeding 100 acres and there is nothing to show that there was cultivation carried on in the property prior to 1949; which alone would absolve the property from the application of the MPPF Act. The two Explanations under Section 1(2) of the MPPF Act would clearly indicate that only lands which were cultivated prior to 14.12.1949 are taken ``` M.F.A (Forest) No.85 of 2015 ``` ``` 9 ``` away from the application of the MPPF Act and even if any cultivation is commenced and continued after 14.12.1949, that would not exempt the land from the applicability of MMPF Act (see **State of Kerala v. K.C.Moosa Haji** 1984 KLT 494, paragraph 7 a Full Bench decision). It was held: 'The question is not whether there was a forest in existence in 1971; it is whether there was any land in 1971 to which the M.P.P.F. Act was applicable in 1949 and continued to be under its coverage till 1971' . ...Clearly, once the Act was applicable to an area in 1949, nothing done by the owners or others was capable of putting an end to such applicability to that area.(sic). 7. Coming back to the question of title we have to notice Ext.B3 which is the certified copy of the order in the earlier application. The properties scheduled in the said application had an extent of 2.60 acres in Sy.103/5 of Moothedathu Madambu Amsom in Ottapalam Taluk. Admittedly the said property was notified on 10.10.1979, which is Ext.B1- notification produced in that O.A and here ``` M.F.A (Forest) No.85 of 2015 ``` ``` 10 ``` too. The documents relied on to assert title in the said application were the identical Ext.A1 and A2 documents, respectively of the years 1920 and 1972 marked also as Exts.A1 and A2 in that O.A. Hence, the applicant’s claim for title arose in the same manner as it arises in the present case; from Ext.A1 and A2. Dehors our findings that the scheduled land is not decipherable from either Exts.A1 or A2, the fact remains that the claim to title arose similarly with respect to the properties which were subjected to adjudication in O.A No.6/1986 and that which is the subject of adjudication in the present case. It was also the applicant's case that these properties lie contiguously; the property in O.A.No.6/86 being shown on the northern boundary of that scheduled in O.A.No.3/2012. Ext.B1 notification as serial No.4 includes the property in ‘Kolakadanmala’ having an extent of 133.91 hectares in Vellinezhy Village, Manarcadu Taluk, Palakkad District and in the various survey numbers shown, 103/5pt is clearly indicated. The properties scheduled in O.A.No.6/86 and that ``` M.F.A (Forest) No.85 of 2015 ``` ``` 11 ``` scheduled in O.A.No.3/2012 according to the applicant lies in Sy. No. 103/5pt. Hence it was only proper that the applicant agitated the cause with respect to the property presently scheduled also in the earlier proceedings. 8. Order II Rule 2 of the CPC requires every suit to include the whole claim which the plaintiff is entitled to make in respect of a cause of action. If the claim regarding any portion is omitted to be urged in that suit then as per sub-rule(2) there is a relinquishment of that part of the claim, which dis-entitles a claim in a subsequent proceedings. The provisions of the CPC are applied to the Vesting Act by Rule 11 of the Kerala Private Forest (Tribunal) Rules, 1972. Adopting the above principle, the applicant herein is deemed to have relinquished the claim which arose on identical facts of title, possession, nature of land and vesting statutorily occurring under the Vesting Act. In this context, we also have to find the applicant having knowledge of the notification at the time of filing of the earlier application under Section 8 of the Vesting Act. Hence, we ``` M.F.A (Forest) No.85 of 2015 ``` ``` 12 ``` also find the application presently filed to be barred on the ground of limitation. 9. For completeness we would also examine the contention raised on exemption under Section 3(2) and (3) of the Vesting Act. Admittedly, the applicant was a co-owner of the property as on the appointed day. But however, noting is stated as to the cultivation carried on in the property or the family having held the property with an intention to cultivate. Even if we go by Exts.A2 and A3 documents the family of the applicant was holding the property form 1920 onwards. The deposition of PW1 is that the scheduled land lies uncultivated and the adjacent properties owned by the applicant is planted with rubber. It is stated that the scheduled property was not cultivated due to the interference caused by the Forest Officials. It is admitted that even during the earlier proceedings the applicant was aware of the dispute on the property scheduled in the instant O.A. It was categorically reiterated that even when the earlier proceeding was initiated in 1986 she was aware that ``` M.F.A (Forest) No.85 of 2015 ``` ``` 13 ``` the disputed property in the present O.A was vested. There was nothing stated about the cultivation in the property as on 10.05.1971 or any intention to cultivate on the family of the applicant. 10. PW2 deposed that the property was cultivated with tapioca, modan, mango and cashew. Presently, it was admitted that there was no cultivation carried on in the property. PW2 states that the total extent of property was 3[1] /2 acres and the rubber plantation is in about 2 acres; of 15 years age. He admits that the property lies contiguous to forest lands. PW3 has stated that the property had an extent of 3 acres and more and half of it is cultivated with rubber. According to him, 45 years back he had cultivated the property with tapioca; which case even the applicant did not have. PW3 in cross-examination admitted that he was in Tamil Nadu from 1961 to 1980 and hence he was not competent to speak of the cultivation in the property as on 10.05.1971 the appointed day. Both PWs 2 & 3 were speaking of the larger extent in the possession of the ``` M.F.A (Forest) No.85 of 2015 ``` ``` 14 ``` applicant and there is no clarity about the cultivation in the application scheduled property. 11. The Commissioner filed Ext.C1 report with Ext.C2 sketch. The Commissioner clearly found the disputed property, on the field, identified with the help of the Taluk Surveyor, to be comprised in Re.Sy.No.49/17 in Block No.61, the corresponding old survey number being 103/3,4pt. The extent of the property as measured was also 42 cents. The Commission Report also indicated that the property in O.A.6/86 lies to the north of the presently scheduled property. Hence, obviously there is a discrepancy in the survey number claimed by the applicant, in the schedule to the application, which is 103/5pt. In this context we rely on the decision of the Hon'ble Supreme Court in **Hamsa Haji** ## **vs. State of Kerala** [(2006) 7 SCC 416] held so: “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 eye-opener 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 behooves the Forest Tribunals and ``` M.F.A (Forest) No.85 of 2015 ``` ``` 15 ``` 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. [underlining by us for emphasis] 12. The identity of the property with reference to the application has not been established. The Commissioner reported that there are no trees in the property having more than 20 years of age and it lies as a paramba sloping from north to south. We have to pertinently remind ourselves that to come under the definition of private forest as available under Section 2(f)(1)(i) of the Vesting Act, the land need not have the characteristics of a forest. Any land on which the MPPF Act is applicable as on 14.12.1949; ie: comprised in a total extent exceeding 100 acres situated in Malabar District, and continues to be so till 10.05.1971, would answer the description of private forest under the Vesting Act. We are unable to interfere with the findings of the Tribunal. Despite the Tribunal having found title on the applicant, we were unable to derive such title on the applicant as against the ``` M.F.A (Forest) No.85 of 2015 ``` ``` 16 ``` property scheduled in the application from either of the schedules in Ext.A1 or Ext.A2. Admittedly there is no case of any specific cultivation in the property, amounting to a personal cultivation as on 10.05.1971. PW1's testimony is absent of any such claim or even a claim of intention nurtured by the family to cultivate the property; which in any event has to be proved from the attendant circumstances. The identity of the property scheduled has also not been established as the one scheduled in the alleged title deeds. For all the above grounds, we find ourselves unable to upset the order of the Tribunal. We confirm the same with the additional ground of no satisfactory proof of title having been offered. We dismiss the appeal and leave the parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **SMA** ## **C.JAYACHANDRAN, JUDGE**