IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 329 of 2010(O) -------------------------------------- AGAINST THE ORDER DATED 01/10/2009 IN IA 1121/2009 IN OS.184/2000 of MUNSIFF COURT, MANJERI .................... PETITIONER(S): ------------------------ MOHAMMED IQBAL, S/O.MOOSA, MAMPAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. MR.R.RAJESH KORMATH RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REP. BY DISTRICT COLLECTOR, MALAPPURAM, CIVIL STATION, MALAPPURAM. 2. CUSTODIAN OF VESTED FORESTS, KOZHIKODE, KOZHIKODE P.O. SPL. GOVT. PLEADER MR.M.P.PRAKASH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2010, ALONG WITH WPC NO. 341 OF 2010 WPC NO.342 OF 2010 WPC NO. 355 OF 2010 THE COURT ON 06/04/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). Nos. 329, 341, 342 & 355 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2010. JUDGMENT Since common issues are drawn up for consideration in all these writ petitions, they are being disposed of by a common judgment. 2. Petitioners herein filed suits, namely, O.S. 184 of 2000, 181 of 2000, 182 of 2000 and 183 of 2000 before the Munsiff's Court, Manjeri. The prayers in the suit were for a declaration that the northern boundary of the plaint schedule property separating it from the northern property is the line which is the southern boundary of R.S. 7 of Mampad amsom desom. Ancillary reliefs were also sought for. 3. The defendants entered appearance and contended that the property over which the claim was laid by the plaintiffs was reserve forest land and they are not entitled to any reliefs. Copy of the written statement is produced as Ext.P2. Initially by judgment dated WPC.329/10 & con. cases. 2 23.7.2003, Munsiff's Court, Manjeri held that since the properties are reserve forest, suits are not maintainable. Copy of the said judgment is produced as Ext.P4. The plaintiffs went up in appeal before the District Court, Manjeri. The District Court allowed all the appeals and remanded the case to the Munsiff's court directing the said court to return the plaint for presentation before proper forum. The District court concurred with the Munsiff's Court that the suits were not maintainable. Ext.P5 is the said judgment. Petitioners took up the matter before this court as F.A.Os. By judgment dated 11.8.2008 this court found that the civil court has jurisdiction to try the matter and remanded the suit for disposal. In the light of the contentions raised by the parties, this court also directed the Munsiff's Court, Manjeri to issue a commission to identify the property with reference to the title and possession of the plaintiffs as well as with reference to the Governmental notification as contended by the Government. Copy of the said judgment is produced as Ext.P6 WPC.329/10 & con. cases. 3 4. The petitioners would say that a Commissioner was deputed by the Munsiff's court in compliance with Ext.P6 judgment. However, he did not measure and identify the properties with respect of the Government notification or the title deed of the petitioner. According to the petitioners, the respondents were very adamant that they will not permit the Commissioner to measure the Government land, which is the reserve forest. The plaintiffs complained that the commissioner has submitted a plan prepared by the Additional Taluk Surveyor, Nilambur without measuring the properties, and he was acting under the dictates of the respondents. Copy of the commission report is produced as Ext. P7. Thereupon the petitioners filed petitions before the Munsiff's Court and complained about the conduct of the commissioner and the Taluk Surveyor. By order dated 9.6.2009 the plan and report was remitted to the very same Commissioner with specific directions. Copy of the said order is produced as Ext.P10. In pursuance to Ext.P10 order the Commissioner inspected the property again. Then too, WPC.329/10 & con. cases. 4 according to petitioner, he did not venture to measure the properties and identify the same with respect to the relevant documents. He challenged the plan and report which is produced as Exts.P11 and P12. Ext.P12is the plan prepared by the Taluk Surveyor,Nilambur. The petitioners complained that without actually measuring the properties, the commissioner has opined that the properties in between the property claimed by the plaintiff and Mundayam Thodu is a river bank. Since the report and plan were not in terms of the orders of this court and the direction given by the Munsiff, the petitioners were constrained to file I.A. seeking to have the commission report set aside and a fresh report called for. The affidavit in respect of such application is Ext.P13. 5. To the interlocutory application filed by the petitioners, a counter statement was filed by the State, copy of which is produced as Ext. P14.The court below after consideration came to the conclusion that there were no grounds to set aside the commission report and plan and WPC.329/10 & con. cases. 5 dismissed the application filed by the petitioners. The said order is assailed in these writ petitions. 6. Learned Government Pleader appearing on behalf of the State pointed out that the Commissioner has complied with all the directions and had measured the properties of the plaintiff. It was pointed out that the plaintiffs were suing on their title and the burden was therefore on them to establish that they had title over the suit property. For that purpose, it is unnecessary to measure the properties of the defendants. Before the court below they also contended that the court has no jurisdiction to try the matter. Government Pleader pointed out that going by the Gazette Notification, it is clear that the portions claims by the petitioners are portions of reserve forest and they are not entitled to any relief. It is not correct to say, according to learned Government Pleader, the Commissioner on two occasions had not complied with the directions issued by this court and the Munsiff's court. Several allegations made against the Commissioner and Taluk Surveyor are without WPC.329/10 & con. cases. 6 foundation. Government Pleader therefore prayed that the petitions be dismissed. 7. As rightly pointed out by the learned Government Pleader being a suit on title, it is for the plaintiffs to establish title to the suit property. In fact they have sought for laying their northern boundary. Considerable reliance is placed by the petitioners on judgment rendered by this court in F.A.O. Nos. 197, 198, 199 and 200 of 2008, wherein it is observed as follows: “The other substantial question of law are not to be answered precisely for the reason that I have already held that the civil court has got jurisdiction and it is for the civil court to consider whether the disputed land is a land as claimed by the plaintiffs or forms a part and parcel of the reserved forest issued by the notification of the year 1900. So the judgments of the learned District Judge are set aside and the FAO are disposed of as follows: (i) Learned Munsiff shall issue a Commission and direct him to identify the property with reference to the title and possession of the WPC.329/10 & con. cases. 7 plaintiffs as well as with reference to the Governmental notification as contended by the Government.” 8. The complaint of the petitioners is that the second direction, that is regarding the issuance of a Commission to identify the property has not been complied with by the Munsiff Court. This is the sum and substance of the plea in the writ petitions. 9. It will therefore be useful to ascertain as to what has been done by the Commissioner on the two occasions. The first report is dated 17.2.2009. In the said commission report, it is stated that the plaint properties were identified as shown by the plaintiffs. He has also referred to the rival contentions. He has produced a survey plan of the properties prepared by the Taluk Surveyor. He has also stated that the plaint schedule properties lie contiguously and there are no boundaries separating them. It is also stated that there is thick growth in the plaint schedule areas and they are close by Mundayan WPC.329/10 & con. cases. 8 thodu. He also noticed the marks put by the forest department on the trees situate in the plaint schedule properties. The above commission report and the plan wee marked as Exts.C1 and C2. Objections were taken against the said commission report and plan. They challenged the way in which the properties were identified. They pointed out that it was necessary to measure the property of the Government which is a reserve forest. They also pointed out that ever since the suit was laid, the petitioners were not being allowed to enter the property by the forest officers. The court below considered the petitions and by order dated 9.6.2009 passed the following order: “In the result, the petition is allowed and the following orders are passed:- 1. The report and plan submitted by the Commissioner is remitted back to the Commissioner. 2. The Commissioner is directed to clearly specify the details of the property lying in the gap shown in the plan in between the Mudayam Thodu in the south and plaint schedule in the north. WPC.329/10 & con. cases. 9 3. The Commissioner is also directed to specify the difference in the boundaries as noted by him on measuring the property and that in the plaint schedule. 4. If in case the commissioner finds any difficulty in measuring the disputed property due to the nature of the forest in the land, commissioner is directed to inform the court before further proceeding with the matter. 5. .............. 6. ...............” 10. In pursuance of the above order, the Commissioner again visited the property, measured the same and prepared Ext.P12 plan and furnished Ext.P11 report. He would report that on the second occasion he says that some of the properties between the properties claimed by the petitioners and the Mundayam thodu were seen water logged. He has also pointed out that those areas lie at a lower level than the properties claimed by the petitioners. He has given the boundaries of each of the properties. WPC.329/10 & con. cases. 10 11. Dissatisfied with the said report and plan also the petitioners again approached the court. Their complaint was that the measurement was not properly done and he had simply produced the earlier plan. They also complained that the Commissioner and the Surveyor danced to the tune of the forest officers and the Commissioner has not properly done his work. It is also claimed by the petitioners that they had asked the Commissioner to have the area cleared and then measure the property, that was also not done. The statement in the report that some of the areas were water logged is without basis. They therefore prayed for a remission of the commission report called for fresh report and plan. The State resisted those petitions. It was pointed out by them that the idea behind was to identify the property and not to measure the property. They also relied on a notification which shows that the southern boundary was reserve forest ,which extends upto Mundayam thodu. 12. The court below for the purpose of the interlocutory application had the Commissioner examined as WPC.329/10 & con. cases. 11 C.W.1 and Exts C1 to C4 marked. On a consideration of the materials before it, the court below came to the conclusion that the Commissioner identified the properties as shown by the petitioners and there is no dispute regarding the fact that the properties claimed by the petitioners lie between Mundayam thodu and the reserve forest. The learned Munsiff found that the directions given in the order to the Commissioner were complied with and Exts. C3 and C4 report and plan were in consonance with the directions issued to the Commissioner. 13. On going through the order there seems to be no error in the same. The Commissioner has identified the property as pointed out by the petitioners. It is true that he has stated that there are thick growth in the properties, but he has been able to identify the plaint schedule properties. There is no case for the plaintiffs that the plaint schedule properties were not identified. But the objection seems to be with reference to that portion of the Commission report WPC.329/10 & con. cases. 12 which says that some of the plaint schedule properties fall within the reserve forest area. 14. The main grievance of the petitioners is that this court had directed while disposing of the F.A.Os. that the properties should be identified with reference to the notification issued by the Government and the title deeds of the petitioners. They pointed out that the properties have not been identified with reference to the notification issued by the Government, and that is illegal and contrary to the directions issued by this court. 15. Though the above argument may look attractive at the first flesh, on a closer scrutiny it can be seen to be without basis. A reading of the two commission reports clearly shows that the property claimed by the petitioners have been clearly identified. Before this court Government Pleader produced Notification No.471 dated 30.1.1900 issued under Section 33 and 26 of the Madras Forest Act, wherein the western boundary is shown as Serial No.1 of Mambad S.No.240 of Mambad and Village No.1 of WPC.329/10 & con. cases. 13 Nilambur. The southern boundary is shown as Nilambur S. No.300, Mambad S. Nos. 268, 269, 242 and 70 (Chaliarpuzha). 16. Relying on the notification, the contention of the Government Pleader is that reserve forest extends upto Mundayam thodu. However, learned counsel appearing for the petitioners made available a copy of the deposition of the Commissioner, who was examined as C.W.1. He has stated that the notification shown to him by the forest officials was not accompanied with a plan. He has also stated that it is impossible to measure the entire property covered by the notification. He has also stated that the boundaries shown in the plan is in bold lines. He has stated that the disputed portion of the property lies in Sy. No.7 and it is on the southern side. In cross examination, he has stated that the measurement was made as per the documents produced by the petitioners and there are tree growth in the area. WPC.329/10 & con. cases. 14 17. The court below has on a consideration of the two reports and plans came to the conclusion that the plaint schedule properties had been identified properly by the Commissioner. The grievance of the petitioners that even in Exts.C3 and C4 the Commissioner has not measured the properties lying on the south of the plaint schedule property has not much force. The court below came to the conclusion that the properties claimed by the petitioners are identified by the Commissioner as shown by themselves and the same is on the northern boundary. The court below has also noticed that the commissioner has reported that the portions of the properties claimed by the petitioners are identified and are part of reserve forest. That is marked in bold black line in Ext.C4. The court therefore found that there are no justification in the complaint of the petitioners. 18. The grievance that reserve forest as per the notification has not been measured does not carry any conviction at all. As already noticed the plaintiffs have come forward with a suit on title, it is for them to have the WPC.329/10 & con. cases. 15 properties identified. Both the commission reports and plan read together clearly revealed that the properties claimed by the petitioners cannot be clearly identified and shown in the plan. The main grievance of the petitioners is that the forest jendas are put far beyond the banks of the Mundayam thodu and the property lying between the jendas and Mundayam thodu belongs to them. 19. It is a matter to be determined at the trial. One cannot now say that the claim is true or false. Whatever that be, the Commission report shows that certain portions of the areas claimed by the petitioners fall within the reserve forest. The correctness of this observation is to be determined at the time of trial. There is no justification in saying that the reserve forest covered by the notification should have been measured by the Commissioner and that is virtually impossible as it runs hundreds of acres. One cannot also omit to note that the Commission report shows that there is thick growth in the area. Prima facie it appears that the view of the court below is justified. WPC.329/10 & con. cases. 16 However, it is made clear that in case during trial it is found that the report and plan are not sufficient enough, the petitioner will have the liberty to apply for a fresh commission report and plan. Reserving this right of the petitioners, these writ petitions are dismissed. P. BHAVADASAN, JUDGE sb.