Case: THE STATE OF KERALA Vs. MOHAMMED BASHEER

2. The respondent herein filed a petition in the Forest Tribunal, Palakkad under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short the KPF Act) for settlement of the dispute in relation to land measuring about 2 acres bearing R.S No. 1200, Muppenad (now in Vellar mala village) Vythiri Taluk, Wynad district (for short the land). In the petition, it was contended that one K.C. Kunji Moosa had orally leased the land in favour of the respondents father in the year 1962 and that his father was personally cultivating the land; after the death of his father, he was personally cultivating the land. It is not a private forest as defined under Section 2(f) of the KPF Act; the land was principally planted with coffee long before the appointed day; thus, it had not vested in the government under Section 3 of the KPF Act; he was issued a certificate of purchase under Section 72K of the Kerala Land Reforms Act, 1963 (for short the Land Reforms Act) by the Land Tribunal in respect of the said land. It was further contended that on 25.02.1987, the officials of Social Forestry Department entered the land and destroyed the coffee plants. In this connection, he had complained to the local police and the Village Officer, and that till 25.02.1987, there was no obstruction for cultivating the land from the forest officials.The appellants filed a counter-affidavit disputing the claim of the respondent. It was contended that the land has not been cultivated and that the certificate of purchase produced by the respondent is not binding on them. The respondent was not in possession of the land as on the date of vesting or subsequent to that date. The land was vested in the government on 10.05.1971 and is under the custody of the Forest Department since then. Since there is no evidence to show the respondents title or possession over the land on the appointed day, his claim under Sections 3(2) and 3(3) of the KPF Act is not sustainable.The Tribunal, by its order dated 30.06.1990, dismissed the petition. The respondent challenged the said order by filing an appeal before the High Court. The High Court, by its order dated 18.09.2001, allowed the writ petition and set aside the order of the Tribunal. The review petition filed by the appellant-State was dismissed by the High Court on 06.02.2007.

Reasoning: 9. It is clear from sub-section (2) of Section 3 that the extent of land comprised in private forests held by the owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. Similarly, sub-section (3) of Section 3 does not apply in respect of so much of extent of private forests as is held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, if the ceiling limit under Chapter III of the Kerala Land Reforms Act is not exceeded. The appointed day for the purpose of Section 3 is 10.5.1971, which is clear from Section 2(a) of the KPF Act.As noticed above, sub-section (2) of Section 3 of the KPF Act provides for the exemption of the private forest from vesting. It states that the land comprised in private forest held by an owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. The land in question measures about 2 acres. It is not the case of the appellants that the land exceeds the ceiling limit under the Kerala Land Reforms Act. The expression held by the owner under his personal cultivation contained in sub- section (2) of Section 3 of the KPF Act is crucial. To bring the land under the exempted category, the claimant should hold the same as an owner and that it should be under his personal cultivation. To own is to have good legal title to hold and possess the property. Blacks Law Dictionary, Ninth Edition defines the word own as to rightfully have or possess as property; to have legal title to.It is well settled that when the enactment enjoins that any evidence would be treated as a conclusive proof of certain factual situation or legal hypothesis, the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. This is the principle embodied in Section 4 of the Evidence Act, 1872 when it defines "conclusive proof" (See: Cheeranthoodika Ahmmedkutty and Anr. v. Parambur Mariakutty Umma and Ors. reported in 2000 (2) SCC 417 ).In the instant case, the land in question is jenmam land. The Land Tribunal initiated suo motu proceedings under Rule 5 of the Land Reform Rules, after obtaining information that the cultivating tenant had been in possession, obviously on a report of the revenue inspector. It is evident from Section 74 of the Land Reforms Act that any tenancy after 01.04.1964 is prohibited. Any tenancy created after that date is invalid. The Land Tribunal initiating proceedings under Section 72B in favour of the cultivating tenant would be considering the possession of a tenant as on the said date which is far earlier than the KPF Act. Possession and title under the certificate of purchase have to relate back to a date prior to the date of vesting under the Land Reforms Act, i.e. 01.04.1964. Therefore, there is no question of vesting of the land in the Government under the KPF Act which has come into force subsequent to the date of Land Reforms Act. As noted above, the certificate of purchase issued under the Land Reforms Act is attributed with statutory conclusiveness as regards ownership/title under sub-section (2) of Section 72K. The certificate issued by a competent Land Tribunal after finding that the tenant was in possession of the property as a cultivating tenant is a conclusive proof of possession as well.In the instant case, certificate of purchase has been issued in favour of the respondent after enquiry by the Land Tribunal. Though the State Government is not a party to this order, there was no bar for it to challenge this order under Section 102 of the Land Reforms Act. No appeal has been filed challenging the certificate of purchase either by the Government or by any other person. Thus, the certificate of purchase has become final.To sum up, the certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72K. Sub-section (2) of Section 72K of the Land Reforms Act clearly states that the certificate of purchase issued under sub-section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in question is exempted from vesting in the State under sub-section (2) of Section 3 of the KPF Act.In Kunjanam Antony (Dead) by LRs. v. State of Kerala and Anr. (2003) 3 SCC 221 , relied on by the learned senior counsel for the appellants, it has been held that the order of the Thaluka Land Board is a piece of evidence so far as the proceedings under the Kerala Private Forests (Vesting and Assignment) Act, 1971 are concerned, but it cannot be treated as binding on the authorities.