IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 MFA.No. 137 of 2005() --------------------- OA.47/2001 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): -------------- THE KALPETTA ESTATE LIMITED, W-21/674 BEACH ROAD, ALLEPPEY-688 012. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA KRISHNAMOORTHY RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY. 2. THE CUSTODIAN OF VESTED FORESTS, ARANGA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALGHAT DISTRICT. BY GOVT. PLEADER SRI.M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.F.A.No.137 of 2005 ------------------------------- Dated this the 16th November, 2009 J U D G M E N T Raman, J. The Kalpetta Estates Ltd., which is the appellant herein, filed O.A.No.47 of 2001, before the Forest Tribunal, Kozhikode, for a declaration that the land comprised in Plot Nos.I and II forms part of the appellant's Estate by name, Chulika Estate and that the said estate is planted with coffee, tea and cardamom. While Plot No.I is part of land purchased by the appellant under a sale deed registered as Document No.954/1954 of SRO, Kozhikode, which is produced as Ext.A1, Plot No.II was purchased by the appellant under Sale Deed No.2258/1963 of SRO, Vythiri, as evidenced by Ext.A2. According to the appellant, Plot Nos.I and II are not portions of private forest, and therefore, the Kerala Private Forests (Vesting and Assignment) Act, (hereinafter referred to as 'the Vesting Act' for short) has no application to the said properties. It is also contended that Plot MFA.No.137 of 2005 2 No.I is a old cardamom plantation and falls under clause (B) to Section 2(f)(1)(i) of the Vesting Act, but the cardamom plants in Plot I could not be efficiently and effectively maintained by the appellant, due to the peculiar lie of the land. Plot No.II, according to them, is a enclave within the estate of the appellant and it shares boundaries with the remaining portion of the estate on three sides. It was also planted with cardamom long before the appointed day, but many of them were destroyed due to disease and pest infection. Hence, according to them, M.P.P.F.Act did not apply to those plots. 2. The Divisional Forest Officer, South Wynad, has filed a counter affidavit on behalf of the respondents, contending that both plots I and II are vested forest lands, and they were formerly governed by the repealed M.P.P.F. Act. Tree growth of various natural species are abundant in Plot-I, and Plot II is a bit of forest land mostly covered with heavy undergrowth. Both plots were without any cultivation before and after 10.5.1971. There was no cardamom plant in Plots I and II. Though the appellant claims to have purchased 1350.5 acres of land under MFA.No.137 of 2005 3 Ext.A1, it sold the said land under four sale deeds, and an extent of 16.40 acres of land in the said survey number was taken over by the Government from the appellant as excess land. Therefore, the appellant had disposed of more land than it purchased. So, it cannot have any claim in Plot-I based on Ext.A1. An extent of 232.16 acres of land in Survey No.265/1 was exempted as vested forest as per the proceeding of the Taluk Land Board, on the basis of the return filed. Hence, Plot-II comprised in the said survey number was also a forest land. Plot-II was the subject matter in O.A.No.94/75 filed by the appellant, and it was contended that the claim itself was barred by res judicata. It was also disputed that Plot No.II was not an enclave in an estate. 3. PW.1 was examined on the side of the appellant and RW.1 was examined on the side of the respondents. Exts.A1 to A13 were marked on the side of the appellant and Exts.B1 to B9 were marked on the side of respondents, besides Exts.C1 to C6 marked. The Tribunal framed the issue as to whether Plot-II claimed thereof is barred by res judicata. It was found that the MFA.No.137 of 2005 4 plea of respondents cannot be proved without producing the order in O.A.No.94/75. A copy of the petition in O.A.No.94/75 ought to have been produced and for best reasons known to the respondents, they did not produce any such evidence to substantiate their contention that land now included in the present claim was already a subject matter of adjudication in the earlier O.A.No.94/75 and to contend that it is barred by the principle of res judicata. Being a question of res judicata, not only that it should be pleaded, but also that it should be substantiated by the evidence. In so far as no evidence was adduced to show that Plot-II was the subject matter of any enquiry in O.A.No.94/75, that the present claim does not operate as a bar by the principle of res judicata, and no acceptable plea is also raised to show that the conclusion raised by the Tribunal is in any way wrong. 4. The Tribunal considered whether the appellant is entitled for a declaration that plot Nos.I and II are not private forest liable to be vested in the Government under the Vesting Act. The Tribunal, relying on the decision reported in State of MFA.No.137 of 2005 5 Kerala v. Kunhiraman (1990 (1) KLT 382), placed the burden on the appellant to prove that the properties claimed by it were not private forest. It further held that Plot Nos.I and II are situated at a place which was part of the erst while Malabar District in Madras State, straight away it can be found that the M.P.P.F. Act did apply to Plot No.I before the appointed day. Ext.A1 is the title deed in respect of Plot-I. Item No.6 in the Schedule-A of Ext.A1 is stated to be Plot No.I and Ext.A1 refers to the sanction obtained from the District Collector to sell the properties to the petitioner. Exts.B2 to B4 are the certified copies of the sale deeds executed by the petitioner in respect of the lands in Survey No.1169 as well, to which Plot -I belongs. There also, it was stated that sanction of the District Collector was obtained. Therefore, the Tribunal concluded that the property comprised in Plot-I is governed by the provisions contained in the M.P.P.F. Act. 5. Further, the land included in Plot-I covered by Ext.A1 has been found to be sold subsequently by various documents. Therefore, the petitioner could not establish subsisting title in respect of Plot-I. The conclusion, therefore, MFA.No.137 of 2005 6 reached by the Tribunal in the aforesaid circumstances, that the petitioner failed to establish that he has got any title to the land in question covered by Plot-I and that it is not a forest land covered by the M.P.P.F. Act having failed, and it being in the realm of appreciation, in the absence of any other evidence contra, we find that the said finding cannot be interfered with as perverse. The said finding as reached by the Tribunal on the analysis of the evidence, as referred to above, is the probable conclusion and that the petitioner did not discharge his burden of proving that Plot-I is not vested with the Government. 6. Coming to Plot-II, admittedly, no reference was made in the title deed, Ext.A2, regarding the sanction having obtained or not obtained from the District Collector, in contra distinction to the recitals contained in Ext.A1 and referred to by the Tribunal. Secondly, Ext.A2 is a sale deed executed by the Receiver appointed by the Court and it was purchased in the court auction sale. The normal presumption is that if this was covered by the M.P.P.F. Act, sanction would have been obtained by the court. For parity of reasons, it has therefore to be held MFA.No.137 of 2005 7 that so long as nothing is shown that permission of the District Collector was necessary in respect of the present land, and there is no evidence to show that it is governed by the provisions contained in the M.P.P.F. Act. Alternatively, the petitioner had contended that Plot-II comprised in Survey No. 265/1 of Kottappadi Village, having an extent of 21.45 acres is an enclave within the estate area. The plan and report of the Commissioner shows that all the three boundaries of Plot-II is surrounded by Estate belonging to the petitioner. On the northern side, there is a river and yet on the northern side of that river, there is a vested forest. Therefore, there are clear-cut boundaries in respect of Plot-II, northern side being a river and all the other sides surrounded by the estate belonging to the petitioner. 7. A small extent of 2.5 acres within this Plot-II was also found to be cultivated with cardamom and the estimate age of the cardamom plantation is 30-35 years. The Commissioner has inspected the property in 2003. Therefore, there is evidence to show that this cardamom cultivation of a MFA.No.137 of 2005 8 smaller extent was there even on the appointed day. True, excluding this 2.5 acres actually cultivated with cardamom, the rest of the land in Plot-II is not seen cultivated with cardamom and various types of trees are standing thereon. In this factual background, the question that arise for consideration is as to whether the land comprised in Plot-II having found to be a enclave within the estate area of the petitioner could be treated as a private forest as vested. 8. In Bhavani Tea & Produce Co. Ltd. v. State of Kerala (1991 (1) KLT 666), a similar area which was an enclave within the estate area came up for consideration as to whether it is a forest vested. The Apex Court did not agree with the contention of the Company therein that the entire estate should be taken as a whole, at the same time, observed that it is difficult to agree that wherever some forest was found inside the company's estate, the Vesting Act would apply. It was found that M.P.P.F.Act, the Kerala Forest Act and the Kerala Land Reforms Act, considered the plantations as units by providing that they would include the land used for ancillary purposes as well. MFA.No.137 of 2005 9 Therefore, while applying the Vesting Act to such plantations, the same principle would be applicable. In conformity with the idea of plantation, it should be reasonable to take each division as a unit, subject of course to the natural and geographical factors. Considering the present case in the light of the above principles laid down by the Apex Court, Plot-II in question surrounded by all the three sides with estate belonging to the appellant and some portion of Plot-II itself having found to be cultivated with cardamom, the remaining area cannot be treated as a forest vested with the Government. 9. The learned Government Pleader appearing on behalf of the State, however, contended that there is no plea by the applicant/appellant that this land was used for any ancillary purposes and that whatever little portion found to have been cultivated with cardamom is not registered as a estate under the provisions of the Spices Board Act, 1986. 10. We have considered the said submission. Though the entire extent comprised in Plot-II cannot be MFA.No.137 of 2005 10 exempted as a cardamom cultivated land, for the simple reason that considering the remaining extent, what is found to have been cultivated is only 2.5 acres. Therefore, it cannot be said that it is principally cultivated with cardamom, and therefore, we are not finding it necessary to examine as to whether the entire extent is to be exempted as cardamom plantation falling under Section 2(f) of the Vesting Act. But the contention raised is that all the three sides are surrounded by the estate, Plot-II being a enclave within the estate, it cannot be treated to be a forest. If if the said land is actually planted with cardamom plantation, the question of treating it as an enclave does not arise. 11. Exts.A7 and A8 are registers of cardamom plantation. True, such registered entries are not proved with reference to the survey number in question, but field number is provided therein, and it is contended by the appellant that normally in a case of large extent like this, what is provided is field number and not the survey number. On a careful consideration of the entire materials on record, it has to be found that the finding of the Tribunal that the petitioner has not proved MFA.No.137 of 2005 11 that Plot-II is not vested with the Government is liable to be set aside. Accordingly, we do so. 12. We make it clear that Plot-II being a enclave within the Estate area, of which some portion is cultivated with cardamom is sufficient to infer that Plot-II is not a forest land vested with the Government. The appeal is partly allowed as above. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.