IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE8H DAY OF OCTOBER201316TH ASWINA, 1935 MFA.No. 53 of 2006 ( D ) ----------------------- AGAINST THE ORDER
/JUDGMENT
IN OA312003 of FOREST TRIBUNAL, KOZHIKODE DATED2810-2005. APPELLANT(S)/APPLICANTS: ----------------------- JOSEPH, S/O.JOSEPH, RESIDING AT VADAKKETHOTTATHIL, PERURKARA, ETTUMANOOR, KOTTAYAM. BY ADV. SRI.VINOD KUMAR.C. RESPONDENT(S)/RESPONDENTS: ------------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVT. OF KERALA, THIRUVANANTHAPURAM.
2. CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, OLAVAKKODE, PALAKKAD.
3. JAMES, S/O.JOSEPH, RESIDING AT VADAKKETHOTTATHIL, PERURKARA, ETTUMANOOR, KOTTAYAM. R3 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN R1 & R2 BY SRI.MADHAVANKUTTY, SPL. G.P.FOR FOREST. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON2710-2013, THE COURT ON810-2013 DELIVERED THE FOLLOWING: amk K.M.JOSEPH & A.HARIPRASAD, JJ.
------------------------------------------------ M.F.A No.53 OF2006------------------------------------------------- Dated this the 8th day of October, 2013.
JUDGMENT
A.Hariprasad, J.
Appeal under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (in short 'the Act').
2. Facts briefly put are thus :- Appellant/Applicant filed an application before the Forest Tribunal ( in short 'the Tribunal') under Section 8 of the Act. Appellant and his brother James are the owners in possession of a large extent of property in which the disputed property, 1 acre 27 cents, shown in the petition schedule, is included. They purchased the property as per Ext.A1 document. The document is dated 30th December, 1970. According to the appellant, the entire property was enjoyed by them as one tenement and was cultivated with rubber, cashew, coconut, arecanut etc. The appellant strongly contended that the petition schedule property is not a private forest. It does not take in any forest growth. The Madras Preservation of Private Forests Act, 1949 ( in short 'the M.P.P.F Act') never applied to the property. M.F.A No.53 OF20062 The entire property was cultivated with various crops even prior to 10-05-1971, the appointed date of the Act. The land was purchased with the intention to cultivate in future also. Appellant and their predecessors-in-title did not own lands exceeding the ceiling limit prescribed in the Kerala Land Reforms Act. The Forest Officers unlawfully attempted to disturb the appellant's possession and hence the action.
3. The respondent filed a counter statement with following allegations. The application is not maintainable in law. The area comprised in Survey No.2089 of Agali village (now Palakkayam village) is the property possessed by the Forest Department and is included within the vested forest known as Cheriya Inchikunnu malavaram. It is part of V.F.C Item No.44 and that it adjoins V.F.C Item Nos.43 and 45, extending upto 588 hectares. These lands are covered under the provisions of M.P.P.F Act. The disputed property can be properly identified only if a sketch of the land is produced by the petitioner. The said area comprised in Survey No.2089 of Agali village of Mannarkkad Taluk of Palakkad District has already been M.F.A No.53 OF20063 surveyed and demarcated as vested forest along with other areas in the above village during 1974-75 and the department had prepared a survey sketch. After due process, V.F.C Item No.44 has been notified.
4. Claims of the appellant that he and his brother James obtained possession of this property along with other properties in 1967 itself and thereafter they kept possession as co-owners by virtue of Ext.A1 are not correct. The appellant, according to his own pleading, is only a lessee and not the owner of the property as on 10-05-1971. Mannarkkad Mooppilsthanam, the erstwhile owner of the property, could not have leased out the land without obtaining due permission from the District Collector as prescribed under the M.P.P.F Act. There is no document produced to show proof of possession of Mannarkkad Muppil Sthanam. It has been held in O.S No.65/56 before the Sub Court, Ottappalam that Muppil Stanam has no power to grant leases beyond 12 years. The appellant cannot claim any right over the property. The disputed property is a private forest vested under Section 3(1) of the Act. The appellant has no M.F.A No.53 OF20064 right to claim exemption under Sections 3(2) or 3(3) of the Act. The petition is liable to be dismissed.
5. Heard Sri.C.Vinod Kumar learned counsel for the appellant and Special Government Pleader Sri.M.P.Madhavankutty. We have carefully perused the oral and documentary evidence available in the records.
6. The Tribunal raised the following issues :- "1. Is the petition barred by limitation 2. Did the petitioners prove that the petition schedule property was not a private forest as on the appointed day 3. Are the petitioners entitled to exemption u/s 3 (2) or (3) of the Vesting Act 4. Reliefs and costs ?" Finding of the Tribunal that the petition is not barred by limitation is not challenged by the respondent and hence it has become final.
7. After considering the evidence adduced, the Tribunal found that the disputed property was a private forest on 10-05-1971, the appointed day as per the Act. This finding is seriously challenged M.F.A No.53 OF20065 by the appellant. The Tribunal further found that the appellant failed to establish the grounds for claiming exemption under Section 3(2) and Section 3(3) of the Act. This finding is also strongly attacked by the learned counsel for the appellant.
8. Ext.A1 is the title deed of the appellant. Recitals therein would show that it is an assignment deed. Jenmi of the land was Mannarkkad Muppil Nair and it was a Sthanam property. Ext.A1 shows that originally the property was given to Karippaprambil Jacob Thomas and two others on lease for 99 years. The purpose of the lease was to convert the land into a plantation and to construct buildings for agricultural operations. There was a registered lease deed in the year 1926. 3000 Acres and 96 cents of land was included in the said lease. By virtue of subsequent transactions, it was devolved on one Pulikkal estate, a limited company. There was a litigation before City Civil Court, Madras as O.S No. 1 of 1956 and in that suit a decree was obtained by the plaintiff therein, Puvathingal Veettil Joseph. The decree was executed through the M.F.A No.53 OF20066 Sub Court, Ottappalam in E.P No.60/59. The property was sold in auction and it was purchased by the decree holder. The auction purchaser obtained delivery of the property. Thereafter he transferred it to one Thomas Mathew and his wife, Kunjujamma. Subsequently, their rights were assigned in favour of assignors in Ext.A1, who in turn transferred the same to the appellant and his brother. It is evident that the property was outstanding in the possession of the assignors in Ext.A1 in leasehold right.
9. Ext.A2 is the rent receipt issued from the estate of Mannarkkad Muppil Nair for receiving rent from P.J.Joseph dated 12-08-1974. It is pertinent to note that the receipt relates to a period subsequent to the commencement of Kerala Land Reforms Act.
10. Exts.A3 to A6 are the basic tax receipts. Exts.A7 to A12 are documents produced to show that coconut saplings were despatched by New Ambadi Estates Private Limited, Madras to Sri.P.J.Joseph, who was the former owner of the property. It is not evident that those saplings were meant for planting in the petition schedule property. M.F.A No.53 OF20067 11. PW1 is the appellant. According to his testimony, the disputed 1 acre 27 cents is part and parcel of 13 acres purchased as per Ext.A1. He would locate the disputed property on the north-eastern side of the total property. He testified in the chief examination that the property belongs to Mannarkkad Muppil Nair and after so many transactions, it reached at the hands of Sosamma, Kunjamma and Thomas Mathew. Thereafter the assignors in Ext.A1 got the property and from whom they got it as per Ext.A1. PW1 deposed that in 1967, there was lemon grass cultivation in the property. Remnants of "moden cultivation" could also be seen. The land was lying barren in 1967. They intended to cultivate coconut trees, rubber trees and pepper vines. PW1 asserted that the property was never a private forest.
12. He was cross examined by the respondent. He admitted that the area is known as Kanjirapuzha malavaram. His version is that in 1971 rubber trees were planted in the property. But no document is produced to show the purchase of rubber saplings or planting of the same. PW1 admitted that the rent receipts would not M.F.A No.53 OF20068 show that it was paid towards the disputed land. PW1 in cross examination stated that though there was no Janda (markings) to separate forest and his property, he would admit that there is a survey stone between his undisputed property and the disputed property. PW1 expressed ignorance regarding the notification by the Survey Department. The testimony of PW1 is highly insufficient to find that the disputed property is not part of V.F.C Item No.44 described as Cheriya Inchikunnu in the notification produced along with the counter statement of the respondent.
13. Ext.C1 is the Commissioner's report and Exts.C2 and C3 are the plans. Ext.C2 plan would show that the disputed property is surrounded by the appellant's property on three sides; namely south, east and west. The Tribunal rightly found that Ext.A1 properties were not tried to be identified with reference to survey demarcations.
14. Learned Senior Government Pleader contended that Ext.B1 notification would show that Inchikunnu malavaram and Cheriya Inchikunnu malavaram (V.F.C Item Nos.43 and 44) are lying contiguously. Ext.A1 shows that the properties assigned to the M.F.A No.53 OF20069 appellant is described as unsurveyed land. Commissioner's plan would show that the disputed property is part of 2089/2 in Palakkayam village of Mannarkkad Taluk. There is no dispute that it was once part of Agali village and now included in Palakkayam village. Learned Special Government Pleader pointed out that the properties in Cheriya Inchikunnu is comprised in Survey Nos. 2089 part, 2090 part, 2091 part, 2097 part and 2080 part. Similarly, the properties in V.F.C Item No.43 is included in Survey Nos.2/2 part, 20/1 CP, 2081/part. It can be seen from Ext.B1 notification that the contention of the respondent that Inchikunnu malavaram and Cheriya Inchikunnu malavaram lie contiguously is highly probable. Northern boundary of Inchikunnu malavaram is the property in Survey No.2080, which is included in Cheriya Inchikunnu malavaram. It is pertinent to note that Survey No.2080 part comes as the northern boundary of Cheriya Inchikunnu malavaram, indicating that Survey No.2080 has been divided into various parts. The probable explanation is that the part of Survey No.2080, included in Cheriya Inchikunnu malavaram, may be one part and the northern M.F.A No.53 OF200610 boundary of it may be a different part. However, there are indications to show that the Cheriya Inchikunnu malavaram and Inchikunnu malavaram lie contiguously as rightly held by the Tribunal. The appellant failed to discharge his burden of showing that the disputed property is not part of the vested forest. There cannot be a dispute that burden is on the appellant to prove that the petition schedule property was not a private forest on the appointed date. (See - State of Kerala v. Kunhiraman (1990(1) K.L.T382). This burden has not been discharged by the appellant.
15. The M.P.P.F Act applied to private forests in the Districts of Malabar and South Kanara having a contiguous area exceeding 100 acres. This property is situated in Palakkayam village in Mannarkkad Taluk included in Palakkad District. Admittedly, this is part of erstwhile Malabar.
16. Section 2(f) of the Act defines "private forest" as :- " (f) "private forest" means - (1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the States Reorganisation Act, 1956 (Central Act 37 of M.F.A No.53 OF200611 1956 )- (i) any land to which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of 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 for purposes ancillary to the cultivation of such crops; (C) land which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop, and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of such M.F.A No.53 OF200612 buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forest Act, 1949 did not apply, including waste lands which are enclaves within wooded areas. (2) in relation to the remaining areas in the State of Kerala any forest not owned by the Government including wast lands which are enclaves within wooded areas. Explanation :- For the purposes of this clause, a land shall be deemed to be a wast land notwithstanding the existence thereon of scattered trees or shrubs; " 17. Testimony of PW1 and the recitals in Ext.A1 would show that the property in 1967 was a barren land. Therefore, none of the clauses in (A) to (D) of Section 2(f) (1)(i) of the Act is attracted. The Tribunal rightly found that the disputed property is a private forest, vested on 10th May, 1971 as per the provisions of the Act.
18. It is settled law that the burden is squarely on the apparent to establish that he is entitled to get exemption under Sections 3(2) and 3(3) of the Act. Tribunal considered the claim of exemption of the appellant in point No.3. The Tribunal based on M.F.A No.53 OF200613 Section 3 of the M.P.P.FAct found that by virtue of Ext.A1, it cannot held that the appellant is entitled to claim exemption. Section 3(1) of the M.P.P.F Act says that no owner of any forest shall, without the previous sanction of the District Collector, sell, mortgage, lease or otherwise alienate the whole or any portion of the forest. There is no case either pleaded or attempted to be proved that the required sanction of the District Collector was obtained by Muppil Nair for creating the lease. Learned counsel for the appellant submitted that the definition of owner in Section 2(b) of the M.P.P.FAct takes in a lessee also. It is true that the lessee can also claim exemption, if he satisfies the condition in Section 3(1) of the M.P.P.F Act. Tribunal also relied on Section 3(2) of the M.P.P.FAct to find reasons to deny the claim of the appellant. Section 3(2) of the M.P.P.F Act says that no owner of any forest and no person claiming under him shall, without previous permission of the District Collector, cut trees or do any act likely to denude the forest or diminish its utility. Considering these provisions of the M.P.P.FAct it was definitely found by the M.F.A No.53 OF200614 Tribunal that the appellant is not entitled to claim exemption under Section 3(3) of the Act.
19. While considering the claim of the appellant under Section 3(2) of the Act, the Tribunal found that in the capacity as a lessee, he could have claimed benefit, provided he established the mandatory requirements under Section 3 of the M.P.P.F Act. As mentioned above, in the absence of proof of permission from the District Collector for dealing with a private forest, the assignee cannot claim any benefit under the Act. Therefore, the Tribunal found that leasehold right set up by the appellant is hit by the Section 3(1) of the Act.
20. Sum and substance of the analysis of evidence in the records will show that the appellant failed to establish that the disputed property is not a private forest. He failed to discharge his burden to get a declaration under Section 8 of the Act. Appellant also failed to properly identify the property. The evidence adduced by the appellant is highly insufficient to find that he is entitled to get exemption under Sections 3(2) or 3(3) of the Act. Therefore, we find M.F.A No.53 OF200615 that the Tribunal correctly dismissed the application. Hence we find no reason to interfere with the findings. The appeal has to fail. The appeal is dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- A.HARIPRASAD, JUDGE. amk //True Copy// P.Ato Judge