IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 MFA.No. 91 of 2004() -------------------- OA.11/2001 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): RESPONDENTS: ----------------- 1. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTESD FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY SPECIAL GOVERNMENT PLEADER FOR FORESTS SRI.M.P.PRAKASH. RESPONDENT(S): APPLICANT: ------------------------- SULAIMAN, S/O. KUNJAHAMMED, CHEMBANOTTIL, VALKADA, KAVASSERY AMSOM DESOM, ALATHUR TALUK. BY ADV. SRI.V.V.ASOKAN FOR R1 SRI.SUNIL SHANKER FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.F.A.No. 91 of 2004 ------------------------------- Dated this the 24th September, 2009 J U D G M E N T Raman, J. State is the appellant. The appeal is filed against the order, dated 4.7.2003, in O.A.No.11 of 2001, on the file of Forest Tribunal, Kozhikode. The respondent herein filed the above application under Section 8 of the Act 26/71 for declaring that the properties scheduled in the application is not a private forest and not vested with the Government. 2. The applicant claimed 2.71 acres in R.S.No.14/1, 14/2 and 14/5 (Old Survey NO.8/8) in Kavassery Village, Alathur Taluk in Palakkad District, to be a land under cultivation, as on the appointed day. According to him, the property belong to Kuthanoor Naduvath Family in jenm right and one Manikkan had verumpattom right under the Jenmy along with other properties. The applicant purchased the said property along with other M.F.A.No.91 of 2004 2 properties from the said Manikkan, as per registered assignment deed No.1351/74 of SRO, Alathur. Item Nos.6 and 7 of that document is the scheduled property. As per the said document, only 1/5 right in Item Nos.6 and 7 was assigned to the applicant, 4/5 was allotted to the brothers, based on an oral partition in the year 1979 between the applicant and his brothers. Ever since then he was in possession and enjoyment of the same. He also contended that lands were not part of MPPF area and it was a paramba. He further contended that a portion of the land was used for cultivation of tapioca, even by the predecessor of the applicant prior to 10.5.1971; that the applicant's predecessor did not have any land in excess of the sealing limit, and, therefore, he was entitled for the benefit of Section 3(2) of the Kerala Private Forest (Vesting and Assignment) Act, 1971, (hereinafter referred to as 'the Act' for short) 3. A counter affidavit was filed for and on behalf of the respondents, the appellants herein. According to them, the property fell within the purview of MPPF Act, 1949, and is vested M.F.A.No.91 of 2004 3 with the Government under Section 3(1) of the Act. The area was surveyed and demarcated during 1978 and notified. The notification was also published in different offices and two dailies as per Rules. The property was never cultivated It is submitted that there are trees such as Veppu, Elavu, Kumil, Parakom etc. in the property and it was unfit for cultivation. Hence, the applicant has no title or possession as per Section 3(1)(a) of the Act without prior santion of District Collector. It is also submitted that Document No.1351/74 showed the area to be rocky and kaduparamba, and, therefore, unfit for cultivation. 4. The Tribunal found that the application is not barred by limitation against which there is no serious dispute. It was then considered whether the applicant is entitled for a declaration as sought for and whether he is entitled for the benefit of Section 3(2) of the Act. M.F.A.No.91 of 2004 4 5. The evidence consists of oral testimonies of PW.1, PW.2 and RW.2, besides the documentary evidence, Exts.A1 to A3, Exts.B1 and B2 and Ext.C1 and C2, the Commissioner's report and plan. 6. Item Nos.6 and 7 in Ext.A1 assignment deed is the disputed property. The description of Item No.6 in Ext.A1 is kida (tank) and that of Item No.7 is kadu paramba (Naranganpara Kaduparamba). The re-survey numbers as shown in Ext.C2 plan was R.S.Nos.14/5, 14/2 and 14/1. In the Commission report, Ext.C1, it was stated that R.S.No. 14/5 was a fenced compound, Neem trees aged 20-25 years, one Mango tree, one tamarind tree aged 15-20 years and 3 Muringa tress were there in that plot. It was further stated that it was the revenue land, as per the village records. It was also used as threshing yard. Considering the evidence, the Tribunal found that it was not a forest land and so not vested with the Government. M.F.A.No.91 of 2004 5 7. Though the learned Special Government Pleader contended that R.S.No.14/5 is also a forest land, on the available materials on record, the finding as entered into by the Forest Tribunal cannot be termed to be perverse. Going by the age of the trees and further it was a revenue land as per the village records and that the same was used a threshing yard, based on a possible and reasonable inference that could be drawn as on the appointed day, 10.5.1971, this was cultivated, and, therefore, not vested with the Government. It is also contended that the applicant was continued to be enjoying the property and is in possession of the same. Though the Government Pleader would submit that it is a vested forest, and therefore, legal possession should be presumed with the Government, we find that the defacto possession continued to be with the applicant, and therefore, the question of restoring the land by the Government in the same manner as it was, does not arise in the above facts. The exclusion of the property in R.S.No.14/5 having found to be not a private forest vested is thus confirmed. M.F.A.No.91 of 2004 6 8. Regarding R.S.No.14/1, the Commissioner has noted that it was the property lying contiguous with the remaining area on the south in the same survey number without any boundary. The trees that were found in that plot and that were found in the south were of same variety, age and nature. The description of the village records also show that it was a vested forest. The description of Item No.7 in Ext.A1 assignment deed was as Kaduparamba and that it was a forest. Therefore, the Tribunal concluded that the plot in R.S.No.14/1 is a private forest vested with the Government. There is no appeal filed by the claimant. Hence, the said finding has become final. 9. We have referred to the Commission report relating to R.S.No.14/1 for the purpose of understanding as to the nature of the property in R.S.No.14/2. That is described as a Kida in Ext.A1 document. It was a built up reservoir and there was a concrete board with inscription “NREP -Alathur Block Naranganpara”. The Commissioner found full of water in the reservoir. Therefore, the Tribunal found that it was not a forest. M.F.A.No.91 of 2004 7 But when was the said Kida constructed by the NREP is not stated. But according to the applicant, even prior to NREP construction, it was a Kida and the water was used for irrigation purposes. There is no contra evidence to this. The description in the property of the document and the Commission report will clearly show that it was a Kida. But then the said Kida is in the forest land in R.S.No.14/2. Even according to the applicant, this land was given free of cost to NREP for construction of the reservoir. Therefore, presently the said tank belongs to NREP, and it is unnecessary to declare it as a private forest or not, in so far as the petitioner has no valid claim over the said property, after he has given up his right over the land for construction of a water tank to another public authority, NREP Block. Therefore, the finding is vacated, but without prejudice to the claim, if any, of NREP Block. 10. Though R.S.No.14/1 is found to be a private forest vested with the Government, the Tribunal, after referring to the evidence adduced in the case, gave the benefit of Section M.F.A.No.91 of 2004 8 3(2) of the Act, and on that basis, the application was allowed as against the claim relating to R.S.No.14/1. 11. As per sub-section (1) of Section 3 of the Act, 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 sub-sections (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 fromall encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. As per Section 3(2) of the Act, 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. M.F.A.No.91 of 2004 9 12. A Division Bench of this Court in Koya v. State of Kerala (1987 (1) KLT 830) held that the person who is entitled to file a petition claiming benefit under Section 3(2) or 3(3) is the person who had right over the property, on the appointed date. At the time when the property had vested in the State, the applicant did not have any right. As the property, being a private forest and had already vested in the State the person who had right over the property on the appointed day alone could have claimed exemption under Section 3(2) or 3(3) of the Act. This view was not found approved by the Full Bench. In Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461 (FB)), a question as to whether assignee of the land after transfer can get the benefit under Section 3(2) or 3(3) of the Act, (if his predecessor-in-interest had any right on the appointed day), came up for consideration, on a reference made by a Division Bench doubting the correctness of the decision in Koya's case. The Full Bench held that if it can be proved that land is not a private forest on the appointed day or the then owner is entitled to claim the benefit of Section 3(2) or 3(3), there is no M.F.A.No.91 of 2004 10 prohibition on the owner to assign his right to a third party and his assignee can also approach the Forest Tribunal for a declaration that land is not vested under Section 3(1) on the appointed day and that an assignee can also claim and prove that his predecessor-in-interest who was in possession of land on appointed day was entitled to get exemption under Section 3(2) or 3(3). 13. In other words, if the owner of the land, as on the appointed day, is entitled to the benefit of exemption under Section 3(2) of the Act, then what is to be proved by a subsequent transferee is that his predecessor-in-interest who was holding the land as on 10.5.1971 being entitled to the benefit under Section 3(2), so that the land did not vest with the Government under Section 3(1) of the Act. In other words, a transfer of a non vested land will not in any way affect the right of the transferee to put forth the claim under Section 3(2) of the Act, provided his predecessor-in-interest is found entitled to the benefit under Section 3(2) of the Act. M.F.A.No.91 of 2004 11 14. We have also considered the issue with reference to the various provisions contained in Kerala Private Forests (Vesting & Assignment) Act, 1971. Section 2(f) which defines the term “private forest” reads as follows: “(f) “private forest” means (1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956) (i) any land which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII or 1949), applied immediately before the appointed day excluding (A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964). (B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. Explanation:- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used purposes ancillary to the cultivation of such crops; M.F.A.No.91 of 2004 12 (C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop, and ............................ (rest of which are not relevant for our purpose) Thus, the definition of the word “private forest” excludes the lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crops. Though the land to which MPPF Act will apply, nevertheless it could not be a private forest, if the land is principally cultivated with cashew or other fruit bearing trees or principally cultivated with any other agricultural crops. Whether or not the land was principally cultivated as is stated in clause C must relate to the appointed day, i.e., 10.5.1971. In other words, if it was cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crops, it will not be a private forest, and therefore, such a land cannot vest under Section 3(1) of the Act. M.F.A.No.91 of 2004 13 15. As stated above, Section 3 of the Act opens with a non obstante clause. Therefore, it could be seen that sub-section 3 of Section 3, as per which vesting takes place, will apply, if that land is under personal cultivation by the owner and is within his cealing limit under the Land Reforms Act. Thus Section 3(1) of the Act, as per which the private forest vests with the Government is subject to Section 3(2) of the Act. 16. In other words, if the holder of the land as on 10.5.1971 is a person who is holding the land within the ceiling limit as per the Land Reforms Act and he was personally cultivating the land, that land cannot vest under Section 3(1) of the Act. Suppose, if he transfers such a land to another person at a point of time, the transferee can claim the benefit of Section 3(2) of the Act. So however, he will have to show that his predecessor-in-interest of the land was entitled to the benefit of Section 3(2), and therefore, it was not vested with the Government under Section 3(1) of the Act. In other words, it is not a vested forest on 10.5.1971, because of the fact that M.F.A.No.91 of 2004 14 predecessor-in-interest have the benefit of Section 3(2) of the Act. 17. Therefore, now the question arise is as to whether the applicant in this case was able to establish, based on the materials on record, that his predecessor-in-interest who transferred the land to him could avail the benefit of Section 3(2) of the Act. 18. PW.2 was the assignor of the property as per Ext.A1 in 1974. He deposed that his father, Raman Chettiar was holding the properties from the Jenmy Naduvath Family. His father died in 1965, and his father had other properties also. After the death of the father, PW.2, attorned to the Jenmy of Kavussery properties, which is involved in the present case. He further deposed that he has got 4 acres of paddy land and 15 acres of paramba, in addition to 52 cents of house and compound in Puthiyankam amsom in Alathur Taluk. Thus, the total extent of property in Item No.6 is 1.14 acres and the total extent in Item No.7 is 15.47 acres. Item Nos. 1 to 5 comes to 72 cents. M.F.A.No.91 of 2004 15 According to him, after exempting 52 cents of house and compound in Puthiyankam amsom and also the reservoir of 1.14 acres, holdings of Manikkan is within his ceiling limits. The landlord of Manikkan had filed a suit against him alleging that Kaduparamba was not leased to his father. Ext.A2 is the certified copy of the judgment and Ext.A3 is the certified copy of the decree. As per the final decree passed by the District Court in A.S.No.24/73, that suit was eventually dismissed upholding the contention of Manikkan of his tenancy right over the land. Though in the absence of contra evidence, even if we accept that Manikkan has tenancy right over the land in question, further question is as to whether Manikkan was cultivating the property. For this, except the ipsi dixit of PW.2, who stated that the property was cultivated with black gram, greem gram, etc., and also that the property was used as paddy field, there is no other documentary evidence adduced in the case. Even though the Tribunal accepted the oral testimony of PW.2 as a conclusive proof of cultivation, as rightly pointed out by the Government Pleader, we find it difficult to accept the said finding. In the M.F.A.No.91 of 2004 16 Commission report, it has been specifically reported that R.S.No.14/1 contains various types of tress and the boundary of R.S.No.14/1 is the properties lying in R.S.No.14/2 and the trees standing on R.S.No.14/2 and 14/1 and the remaining part of R.S.No.14/2 is found to be without any difference. 19. As we have already pointed out in the earlier paragraphs that in the properties in R.S.No.14/1, the Commissioner found that there were trees of different types of different ages and that R.S.Nos.14/2 and 14/1 lies contiguous without any separating boundary. The remaining part in R.S.No.14/2 excluding the reservoir is also found to be full of tress similar to the properties in the remaining area of R.S.No.14/1. Therefore, the Commissioner could not find any cultivation even at the time when he visited the property. Therefore, we find that the oral testimony of PW.2 that he had been cultivating the land under R.S.No.14/1 with black gram, green gram etc. is not supported by any other evidence in the case. Even going by the report of the Commissioner that at the M.F.A.No.91 of 2004 17 time of his visits, when various types of trees of different ages were found reported, it can only be found that the said land lying in R.S.No.14/1 cannot be held to be under personal cultivation of the predecessor-in-interest, viz., assignor. In so long as this fact has not been proved and thus not discharged his burden, we find that the applicant is not entitled to the benefit under Section 3(2) of the Act. Therefore, we set aside the finding of the Tribunal in that regard and allow this appeal in part. However, in the circumstances of the case, there will be no order as to costs. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.