IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 SA.No. 196 of 1995 ------------------------------- AS.52/1990 of SUB COURT, PAYYANNUR OS.206/1986 of MUNSIFF COURT, PAYYANNUR .................... APPELLANTS/APPELLANTS/DEFENDANTS: 1. STATE OF KERALA REP. BY ITS CHIEF SECRETARY, GOVT. OF KERALA, TRIVANDRUM. 2. DIVISIONAL FOREST OFFICER, TELLICHERRY. 3. FOREST RANGE OFFICER, TALIPARAMBA. BY SPL.GOVT. PLEADER SRI.M.P.PRAKASH RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1. KUTTIYANIKKAL JOSEPH @ OUSEPH, S/O TOMMON, AGRICULTURIST, VAYAKKARA AMSOM, PULINGOME DESOM (DIED). 2. ELIYAMMA, DO. DO. 3. THOMAS, DO. DO. 4. SEBASTIAN, DO. DO. 5. MARY, DO. DO. 6. BABY, DO. DO. 7. JOSE, DO. DO. 8. SOJI, DO. DO. 9. BINDUMOL, DO. DO. BY ADV. M.SASINDRAN FOR R2 TO R9 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- S.A.No. 196 of 1995 --------------------------- JUDGMENT The defendants in O.S.No.206/86 on the file of the Munsiff's Court, Payyannur are the appellants and they challenge in this appeal the decree passed by the trial court, upheld in appeal by the Sub Court, Payyannur, vide judgment in A.S.No.52/90. 2. Kuttiyanikkal Joseph @ Ouseph, S/o Thomman, the predecessor in interest of respondents 2 to 9, filed O.S.No.206/86 aforesaid for a decree of permanent prohibitory injunction restraining the defendants and employees under them from trespassing into the scheduled property and interfering with the peaceful possession and enjoyment of the plaintiff over the said property and for recovery of damages to the extent of Rs.900/- from the defendants, inter alia, on the following allegations: The plaint schedule property originally belonged in jenm to Pazhavathil Mavila Veedu and SA 196/95 2 was outstanding in possession and enjoyment of A.C. Pachikkara Vakil; that the plaintiff got the said property under an oral kuzhikanam right from the above A.C. Pachikkara Vakil in the year 1957; that he attorned to the landlord of the property and paid purappad to him; that he effected improvements in the scheduled property and he is in uninterrupted possession and enjoyment; that as per Exhibit A2 order of the Land Tribunal in O.A.No. 2100/72, he purchased the jenm right over the property from the Land Tribunal, Payyannur; that the defendants have no right or possession over the scheduled property; that the third defendant, along with his subordinate officers, trespassed into the scheduled property and uprooted about 200 areca plants on 17.7.1986; that on receiving information, the plaintiff rushed to the spot and offered resistance; that when he questioned the trespass, the third defendant admitted that they have uprooted the areca plants, but, all the same, threatened the plaintiff; that due to the act of SA 196/95 3 the defendants, the plaintiff suffered loss of more than Rs.750/- and that in case the defendants again attempt to trespass into the scheduled property, the plaintiff will be put to irreparable loss and injury. Hence the suit for a decree of permanent prohibitory injunction against the defendants. 3. Defendants 2 and 3 filed written statement resisting the suit contending, interalia, that the suit is not maintainable; that in R.S.No.127/1 of Vayakkara Amsom twenty persons have filed applications before the Forest Tribunal, Kozhikode; that the Forest Tribunal exempted properties in fifteen cases from vesting; that the plaintiff in O.S.No.82/85 on the file of the Munsiff's Court, Payyannur was the applicant in O.A.No.260/74; that as per the said original application, four acres of property were exempted by the Forest Tribunal; that the plaintiff herein is the father of the plaintiff in O.S.No.82/85; that in the property exempted as per O.A.No.260/74, extending to four acres, there is a house belonging to Sri.K.J.Thomas; that the SA 196/95 4 properties involved in O.A.Nos.260/74 and 287/74 were already surveyed; that both these properties are outside the boundaries of vested forest; that the properties in the plaint schedule is included in the vested forest and therefore, the civil court has no jurisdiction to entertain the suit; that the defendants are not committing any damage or waste in the scheduled property and that the plaintiff has to take steps to identify the property by taking out a commission. On the above contentions, defendants 2 and 3 prayed for a dismissal of the suit with costs. On behalf of the first defendant, the Government Pleader filed a memo adopting the written statement filed by defendants 2 and 3. 4. The schedule to the plaint was amended in conformity with the description in the commissioner's report, vide I.A.No.1738/89. After the amendment, an additional written statement was filed by the Government Pleader on behalf of the defendants contending that the suit as amended also is not maintainable; that the market value assessed SA 196/95 5 by the Commissioner is not correct and that the suit has to be dismissed. 5. The trial court raised necessary issues for trial on the basis of the above pleadings and considering the case in the light of the above pleadings and the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DW1 and documentary evidence Exhibits A1 to A24, decreed the suit in part, granting a decree of permanent prohibitory injunction as prayed for, but disallowing the claim for damages. The defendants assailed the judgment of the trial court in A.S.No. 52/90 and the appellate court dismissed the appeal concurring with the findings of the trial court. Hence this appeal by the aggrieved defendants. 6. This appeal was admitted on the following substantial questions of law formulated in the memorandum of appeal. i. Whether purchase certificate issued in respect of a forest land SA 196/95 6 subsequent to the appointed date, namely, 10.5.1971, has got any legal effect on a land covered by Vested Forest Assignment Act? ii. Whether the court below can be justified in relying on the I.A.No.1738/89 permitting the plaintiff to amend the schedule in accordance with the description of the Commissioner? As per I.A.No.1289/08, the Special Government Pleader sought to urge the following substantial question of law as well, namely, “Whether the courts below have jurisdiction to decide the dispute in view of Section 13 of the Kerala Private Forests (Vesting & Assignment) Act, 1971 and in view of the legal position explained by a Full Bench of this Hon'ble Court in the judgment in Bhargavi Amma v. State of Kerala reported in 1997 (2) KLT 513?” The said application is allowed on this day. SA 196/95 7 7. It is contended before me by the learned counsel for the appellants that Exhibit A3 purchase certificate, issued pursuant to Exhibit A2 order of the Land Tribunal in O.A.No.2100/72, does not bind the rights of the Government, as, according to him, the scheduled property is private forest land that has got vested in the Government on the appointed day, namely, 10.8.1971; that the plaintiff should not have been allowed to amend the description of the schedule in the plaint in accordance with the description of the Commissioner and that in view of Section 13 of the Kerala Private Forests (Vesting & Assignment) Act, 1971 and in view of the legal position explained by a Full Bench of this Court in Bhargavi Amma v. State of Kerala (1997 (2) KLT 513), the civil court had no right to adjudicate on the dispute involved in the case and therefore, the decree passed by the trial court and confirmed in appeal by the first appellate court deserves to be interfered with and set aside. SA 196/95 8 8. On the contentions raised by the appellant regarding identity of the property and to the effect that the property is vested forest, the respondent/plaintiff took out commission to identify the scheduled property. The Commissioner identified Plot Nos.1, 2 and 3 shown in Exhibit C1 plan filed along with Exhibit C2 report, as the scheduled property. He has also shown the southern portions of Plot No.2 as the portion from where the arecanut plants had been pulled out and spoiled by the appellants/defendants. 9. An objection is seen filed to the commissioner's report by the additional Government Pleader. The objections are that in R.S.No.127/1 of Chennattukolly in Vayakara Village, there are vast areas of land as vested forest demarcated and surveyed; that the Advocate Commissioner has not physically measured the whole extent of property in the above survey, but has measured the property on the basis of the plaint schedule, despite the request made by the Forest Range Officer that the SA 196/95 9 whole extent of the property has to be measured for actual identification of the property. Apart from the objection on the above lines, which is general, the only specific objection taken in the objection filed to the commissioner's report is that though the Forest Range Officer represented to the Advocate Commissioner that some portion of the southern part of the second plot in the plan is forest land, the Advocate Commissioner reported that the defendants failed to ascertain the exact extent of the disputed portion and further that the Advocate Commissioner has failed to note the correct age of the house situated in the southern part of the first plot in the plan. In the objection, the Government Pleader has stated that the court may record the objections against the report and plan submitted by the Advocate Commissioner. 10. From the specific objection raised in paragraph 5 of the objection filed to the commissioner's report what can be seen is that the SA 196/95 10 only dispute that the defendants have is that the southern part of the second plot in Exhibit C1 plan, from where the arecanut plants are alleged to have been pulled out and spoiled, is forest land. Absolutely no contention is raised in relation to Plot Nos.1 and 3 and the northern portion of the second plot as not being part of the plaint scheduled property in possession of the plaintiff. In other words, the dispute is only in relation to the southern portion of the second plot and not with respect to any other plot or the northern portion of Plot No.2 in Exhibit C1 plan. Being an injunction suit, what this Court is to consider is only possession of the scheduled property, namely, as to whether it is with the plaintiff or whether the defendants have got possession over any portion of the property. 11. In Exhibit C2 report, the Commissioner has categorically stated that the red coloured portion in Plot No.2 is covered with grass only and no trees are found in that portion. He has also given SA 196/95 11 the details of improvements effected in the entire scheduled property with the age of those improvements. According to him, the age of the house in the north western corner of Plot No.1 is about twenty years. The trees in the property are 300 arecanut trees aged 22 years each, 500 arecanut trees aged 4 years each, 9 coconut trees aged 25 years each, 6 coconut trees aged 7 years each, 200 rubber trees aged 15 years each and 150 pepper wines aged 10 years each. Regarding the age of these improvements, no objection is taken by the appellants/defendants in the objection filed to the commissioner's report. The Commissioner has described the boundaries of the scheduled properties, inter alia, of Plot No.2, as having, on the north of Plot No.2 a road, on the south east the property in possession of Eliyamma, on the east the property in possession of Kuttiyanikkal Thomas and on the west the property in possession of Thadikkatu Podiyan Kuruvila. The Commissioner, in Exhibit C2 report, has also observed that there is SA 196/95 12 no other forest land adjacent to the plaint schedule property. It has to be numbered that forest land cannot appear in bits among the properties possessed by several persons as their registered holdings and the western portion of Plot No.2, which contains only grass and from where the areca plants were pulled out and spoiled, as per the allegations made in the plaint, cannot be considered also as any portion of the forest land surrounded by properties possessed by the plaintiff, Eliyamma, Kuttiyanikkal Joseph and Podiyan Kuruvila. 12. The argument that the civil court has no jurisdiction to entertain a suit when the appellants contended that the property is forest land that has got vested in Government under the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971 is devoid of merit, as the question of jurisdiction initially depends on the averments in the plaint and unless it is shown that the property is vested forest or private SA 196/95 13 forest vested in the Government by reason of the provisions of the above Act, civil court does not lose jurisdiction to adjudicate the dispute. The decision of a Full Bench of this Court in Bhargavi Amma's case (supra) has no application to the facts of this case, as the question that arose for consideration in that case was as to whether in relation to private forests, whether the Forest Tribunal is having jurisdiction to consider an application in the absence of a notification issued by the Government under the provisions of the said Act. This Court in that case held that the question of jurisdiction is not to rest on the question whether notification had been issued or not, but it depends upon the question of nature of land, namely, as to whether it is private forest or not. In the instant case, not only that the plaintiff had no such case, even the defendants did not contend that any portion of the suit property, other than the red shaded portion Of Plot No.2, shown in the plan, is forest land. SA 196/95 14 13. In this context, it is worthy to consider the testimony of the Forest Range Officer, who has tendered evidence as DW1. He has deposed that he is not aware of any property which has boundary description as described in the plaint. Even in chief examination, he deposed that in the property identified to the Commissioner as plaint schedule property, certain portions which are included in vested forest also was shown and that is on the southern most portion and further that Eliyamma has no property on the south of the said property, on the southern most portion. In cross-examination, he has admitted that in R.S.No.127/1 of Pulingom Village, several acres of land belong to private persons and that he is not aware as to where the plaintiff resides, although he knows from the averments in the plaint that he is residing in the scheduled property. He further stated that he is not aware as to whether the suit is in relation to eight acres of land in a portion of which is the residential house of the plaintiff situated; that SA 196/95 15 he has understood it only in his capacity as a defendant that it is a forest land. He has further admitted in cross-examination that he has not understood the other boundaries of the plaint schedule property. He also admitted that on the south of the alleged forest land also there is private land, though he does not know who is in possession thereof and further that he cannot definitely say as to whether adjoining on the north of the said forest land, the plaintiff is having properties. He has further admitted that in Exhibit C1 plan the southern boundary of Plot No.2 is shown as the property in possession of Eliyamma; that Eliyamma was the applicant in O.A.No.287/74; that the property held by Thomas is the property obtained by him vide order in O.A.No.260/74 and that he is not aware as to whether it is on the north of these properties is the plaint schedule property. He has also stated that he is in possession of the plan, which shows all the details of the vested forest; that the said plan is very SA 196/95 16 elucidative and that if that is produced, the details of vested forest can clearly be understood. Strangely enough, that plan is not produced. He also admitted in further cross that he has not realised that Plot No.2 is on the western side of the property of Thomas, which had been assigned to him and that both Eliyamma and Thomas filed original applications for declaration that the properties held by them are not forest lands. He has further stated that no vested forest is included in the plaint schedule, though vested forest is included in Exhibit C1 plan submitted by the Commissioner. He has pleaded ignorance when asked as to whether Exhibits A1 to A24 relate to the scheduled properties and he admitted also, however, that no case has been registered against the plaintiff for having trespassed into vested forest. 14. The evidence tendered by DW1 shows that he has absolutely no idea as to the correctness or otherwise of Exhibit C1 plan submitted by the SA 196/95 17 Commissioner and that he is resisting the suit only for the sake of resisting the claim and that the defendants have no manner of right over the scheduled properties as has been rightly found concurrently by the courts below. There is no merit in the second appeal and no question of law and much less, any substantial question of law, as has been formulated, does actually arise for consideration in this appeal. In the result, I dismiss this second appeal, confirming the correctness of the concurrent verdicts of the courts below. 23rd June, 2008 (K.P.Balachandran, Judge) tkv SA 196/95 18 K.P.Balachandran, J. --------------------- S.A.No.196 of 1995 --------------------- JUDGMENT 23rd June, 2008