IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 SA.No. 252 of 2001() -------------------- AS.254/1997 of .DISTRICT COURT, KOZHIKODE OS.381/1992 of MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT(S): RESPONDENTS/PLAINTIFF ------------------------------------------------------------ 1. JACOB. K. JOHN, S/O JOHN, 126-A, VAZATHUMUTHU ROAD, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 2. JOHN C.K.SAM, S/O JOHN, 126-A, VAZATHUMUTHU ROAD, KACHERI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOZHIKOE. 2. DIVISIONAL FOREST OFFICER, KOZHIKODE. 3. DIVISIONAL FOREST OFFICER, SOCIAL FORESTRY, MATHOTTAM. 4. FOREST RANGE OFFICER, THAMASSERY SECTION. GOVERNMENT PLEADER SRI. S. GOPINATHAN FOR R1 TO 4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- S.A.No. 252 OF 2001 ----------------------------------- Dated 22nd September, 2011 J U D G M E N T Appellants are the plaintiffs. They filed a suit before the vacation court (District Court) for granting permanent prohibitory injunction restraining the defendants from trespassing into plaint A and B schedule properties. The said suit was decreed and injunction was granted. The said decree and judgment were challenged in appeal before the District Court. District Court allowed that appeal and set aside the decree and judgment of the trial court. Learned district judge made it clear that dismissal of the appeal will not affect the right of the plaintiff-appellant to move the Forest Tribunal to claim exemption if such a right is available to them, under law. The said decree and judgment are challenged in this second appeal. 2. As per the averments in the plaint, plaint A and B schedule properties originally belonged to Rengasesha Mills Private Limited company as per oral lease in 1960. The properties were leased thereafter to one Thomas and he was in possession of the property. He assigned his rights in respect of S.A. No.252/2001 2 plaint A schedule property (2 Acres) as per Ext.A1 Assignment Deed in favour of first plaintiff-appellant. He also assigned his right in respect of plaint B schedule property (3 Acres) in favour of second plaintiff who is the only brother of first plaintiff, in the year 1990. 3. Appellants are thus, in possession of the property and properties were cultivated with cashew and other portion was kept ready for planting rubber. While so, fourth defendant who is Forest Range Officer, with some Forester and guards, presumably under the instruction of defendants 2 and 3, attempted to trespass into plaint schedule properties and attempted to set fire and destroy the cultivation, which was prevented by watchman. Defendants have no right to do so. Hence a suit is filed for permanent prohibitory injunction against trespass. 4. A written statement was filed by second respondent on behalf of all other defendants, contending that property described in plaint schedule is a vested forest and coming in VFC, item no.129 of Kumaranalloor Village. A social forestry wing of Forest Department started pitting in this area to make it a good forest for valuable trees. A nursery raised by the department is also situated close to the area. Plaint schedule property belonged to S.A. No.252/2001 3 M/s. Rengasesha Mills and not to K.E.Thomas who is the alleged predecessor of plaintiff. Officers had not made any encroachment. The property is duly notified as VFC no.129 of Kumaranelloor Village. Moreover, a case with respect to the same property, and certain with other properties is pending before the Forest Tribunal as O.A. 471 of 1991. Appellants are not entitled for injunction. 5. A rejoinder was filed by the appellants stating that there is no notification in respect of the plaint schedule properties. Those properties are not forest. Petitioners are cultivating tenants of the said property. They had not cut any trees from the property. Issues were framed and evidence was adduced in the suit. PW1 and 2 examined Ext.A1 to A10 were marked on the side of plaintiff. Ext.C1 and C1(a) Commission report and plan were also marked. No evidence was adduced on the side of respondent. 6. Trial court considered the merit of the contentions and held that respondents have not produced any notification under Rule 2(a) of Kerala Private Forest (Vesting and Assignment) Rules 1974 ('the Rules' for short) to show that plaint schedule properties are covered by said notification. Therefore, Civil Court's S.A. No.252/2001 4 jurisdiction is not barred as held in 1992 (2) KLT 26 State of Kerala Vs. Komalavally. Trial court considered the evidence and found that Ext.A1 and Ext.A2 reveal that properties were assigned in favour of appellants and that they obtained purchase certificate as revealed from Ext.A5 to Ext.A8. 7. The respondents did not produce any notification in spite of direction given, as per order in I.A.3018/94 and hence adverse inference was to be drawn against respondents, it is held. Defendants also did not care to produce copy of order in O.A.47/1991, which was filed in respect of plaint schedule property and therefore, there is only a mere allegation that plaint schedule property form part of vested forest. The evidence adduced on behalf of appellants prove that they are in possession of plaint schedule properties, it is further held. The above decree and juegment were challenged in appeal. 6. In appeal, the appellate court, however, found that decision referred to by the trial court in Komalavally's case was overruled by a decision of Full Bench in 1997(2) KLT 513 Bhargavi Amma Vs. Sate of Kerala where in it is held that even in the absence of notification, the application could be entertained, if it is disclosed that there is a dispute under clause S.A. No.252/2001 5 (a) and (b) of Section 3 for its adjudication etc. However, Appellate court held that civil court will not have jurisdiction to decide or deal with any question or determine any matter which is by or under the Kerala Private Forest Vesting and Assignment Act 1971 ('vesting Act' for short) required to be decided or deal with or to be determined by Tribunal, custodian or any other officer. It was also held that Civil Court's jurisdiction is barred since there is a dispute whether the relevant property is a private forest or not. Learned District Judge marked Ext.B1 at the appellate stage, which is certified copy of order in O.A.47/97. 7. On the basis of Ext.B1, it was held that Forest Tribunal held as per its order in Ext.B1 that property in question was included in VFC item no.129 and it is private forest vested in the Government under the Act and dismissed the application filed by appellant's predecessor in interest. The declaration sought for that it is not a private forest was denied also. The appellants are claiming under the petitioner in O.A.47/91 on the basis of an oral lease and they are not entitled to get any injunction as prayed for. 8. Heard both sides. Learned counsel for appellants argued that certificate of purchase issued in respect of plaint schedule property will prove that the property is an agricultural property S.A. No.252/2001 6 coming within the purview of Kerala Land Reforms Act and hence excluded from the scope of Vesting Act. Another ground raised is that in view of absence of provisions like section 125(3) of Kerala Land Reforms Act in the Vesting Act, the court can decide whether the property is forest or not. The civil court is not obliged to accept the decision of Forest Tribunal to conclude that property is a forest, it is submitted. 9. On hearing both sides, I find that the main argument is on the maintainability of the suit. Appellate court found that there is a bar under section 13 of the Act for the Civil court to entertain the suit. A reading of section 13 and section 8 of the Act will show that no civil court shall have jurisdiction to decide or deal with any question whether the disputed property is a private forest or not and such question is to be determined and decided by Forest Tribunal. This position is clear from the decision reported in 1992 (2) KLT 26 also. 10. On going through the judgment of the appellate court, I do not found that the appellate court committed any error in its finding on question of jurisdiction of civil court. A dispute is raised in the suit, in respect of nature of the plaint schedule property. While appellant would content that it is a private property S.A. No.252/2001 7 covered by purchase certificate, respondent - State and the Forest officials took up a contention that it is a private forest. Therefore, appellants would be entitled for an injunction, only if it is found that plaint schedule property is not a private forest. 10. The question whether the plaint schedule property is a private forest or not is to be decided by Forest Tribunal and Civil court will not have jurisdiction to decide such question by virtue of the bar under section 13 of the Act. Of course, it is not sufficient if such a dispute is raised, in the suit, but it must “arise” as laid down in section 8 of the Act and the dispute must be a bonafide dispute. From the nature of the pleadings and the various other facts and circumstances of this case, I do not find any reason to believe that dispute is not a bonafide one. Hence the matter is to be decided by Forest Tribunal and not by Civil court. Therefore, appellate court was right in holding that Civil Court has no jurisdiction. 11. However, learned counsel for appellant vehemently argued that appellate court has illegally admitted Ext.B1, at the appellate stage. It is his argument that Ext.B1, which is the certified copy of order in O.A.41/91 does not relate to the plaint schedule property. While in Ext.B1 a reference is made on survey S.A. No.252/2001 8 no.83, the plaint schedule property is referred as “unsurveyed”. The very same description as “unsurveyed” is also made in the purchase certificate also. 12. In the above circumstances, it is argued that findings of the appellate court that appellants are not entitled to claim relief, since property in question is a private forest, as per Ext.B1. On going through the petition filed for admitting Ext.B1 in evidence, it is clear that none of the requirements are disclosed from the petition for admitting evidence at the appellate stage. It is needless to say that any document to be admitted in evidence only under rare circumstances. Lower appellate court did not consider whether the requirements are made out, for admitting Ext.B1 in evidence at the appellate stage. Therefore, the order passed in I.A.2179/99 in A.S.254/97 is liable to be set aside and I do so. 13. The observations and crucial findings of the lower appellate court on nature of property are entered upon based on Ext.B1 which ought not to have been admitted in evidence. The finding that the property in question is a private forest is not legally sustainable and it is to be set aside. A mere perusal of Ext.B1 and the plaint schedule and the evidence in this case will S.A. No.252/2001 9 make it clear that there is no justifiable ground to hold that both the properties are the same, especially on a perusal of the Commission report, plan - Ext.C1 and C1(a). 14. At any rate, the Civil court has no jurisdiction to hold that plaint schedule property is a private forest and the findings of the Civil Court that plaint schedule properties are private forest based on Ext.B1 cannot be sustained. Those are matters to be decided by Forest Tribunal, if any application is made for such purpose. In the absence of any evidence whether the properties involved in O.A.47/91 is the plaint schedule property or not, it is not proper or legal to enter a finding that plaint schedule property and the property in O.A. 47/91 are one and the same. The findings of the lower appellate court relating to the nature of the plaint schedule property cannot be sustained and those are set aside. At any rate, there is no ground to interfere with the decree and judgment in dismissing the suit. This appeal is disposed of accordingly. Sd/- K. HEMA, JUDGE. Sou. // True copy //