Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941 RFA.No.718 OF 2008 AGAINST THE JUDGMENT AND DECREE IN OS 28/2002 DATED 05-07-2008 OF ADDITIONAL SUB COURT, PALAKKAD APPELLANTS/PLAINTIFFS: 1 WILSON PAUL, S/O.PETER PAUL, AGED 52 YEARS, RESIDING AT NERUKAKAD, KALLEPULLY, PALAKKAD. 2 BHAVADAS, S/O.RAMAN, AGED 64 YEARS, RESIDING AT CHATHANKULAM, KONGAD AMSOM, PALAKKAD. BY ADVS. SRI.RAJESH SIVARAMANKUTTY SRI.GLEN ANTONY SRI.JAEONA JAMES RESPONDENTS/DEFENDANTS: 1 RAJAMMA, W/O SEBASTIAN, AGED 60 YEARS, RESIDING AT THEKKEKUNNAM, KOTTEKKAD AMSOM, PALAKKAD. 2 LISY, D/O.SEBASTIAN AGED 38 YEARS, RESIDING AT THEKKEKUNNAM,, KOTTEKKAD AMSOM, PALAKKAD. R1-2 BY ADV. SRI.T.P.ALEX R1-2 BY ADV. SRI.K.K.JOHN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA.No.718 OF 2008 2
JUDGMENT
Dated this the 2nd day of December, 2019 This appeal is preferred from the judgment and decree dated 05.07.2008 passed in O.S.No.28 of 2002 on the files of Subordinate Judge's (Additional) Court, Palakkad. O.S.No.28 of 2002 was a suit for specific performance of the contract.
2. The facts necessary for disposal of this appeal are summarised hereinbelow.
The defendants got absolute right and exclusive possession over the property scheduled in the plaint by virtue of deeds of assignments executed and registered in the year 1985. An agreement for sale was executed among plaintiffs and defendants in respect of plaint schedule properties on 04.01.1995 for a consideration fixed on the basis of Rs.600/- per cent. A sum of Rs.50,000/- was paid towards advance sale consideration. The defendants were put in possession of the plaint schedule properties pursuant to sale agreement on its date itself. They have also made improvements therein and are in actual possession and enjoyment of those ever since then. The Forest Department had initiated proceedings as if a portion of the properties is vested forest. An
RFA.No.718 OF 2008 3 application filed before the Forest Tribunal claiming exemption
was dismissed. An appeal was filed against the order of the Forest Tribunal and that is pending consideration. It was agreed in the agreement for sale that the defendants shall obtain documents evidencing release of the properties by the Forest Department and to give intimation to the plaintiffs within three months from the date of obtaining the same. Thereupon balance sale consideration shall be paid by the plaintiffs to the defendants to get the sale deed executed in their favour. The plaintiffs were always ready and willing to perform their part of the contract. They had paid Rs.50,000/- to the defendants so as to enable them to prosecute the case which was pending before this Court but materials are not available to evidence that. The defendants made attempts in the meantime to sell the plaint schedule
properties to third parties. O.S.No.389 of 2000 was filed then before the Munsiff's Court, Palakkad for permanent prohibitory injunction restraining the defendants from alienating the plaint
schedule properties. The suit was withdrawn to this Court and renumbered as O.S.No.118 of 2003. In the meantime, appeal pending before this Court was decided in favour of the defendants. The properties were released by the Forest in the name of defendants. The 'Janda' installed was removed. The RFA.No.718 OF 2008 4
defendants did not inform the factum to the plaintiffs though they are bound by the terms in the agreement to do so. The plaintiffs were informed about that from the Forest Officials who came to remove the 'Janda'. Stating lame excuses, the defendants avoided the execution of sale deed. Thereupon seeking for a decree for specific performance or in the alternative for return of advance amount together with interest at the rate of 12%, O.S No.28/2002 was filed.
3. The defendants filed written statement admitting execution of bilateral agreement among themselves and the
plaintiffs. According to them physical possession of the plaint schedule properties was never given to plaintiffs as averred. It is false to state that plaint schedule properties were managed by the plaintiffs and they were collecting income therefrom. The plaint schedule properties are in the possession of defendants themselves and therefore, the suit is only to be dismissed with compensatory costs.
4. The trial court had framed issues mainly as follows: “1. Whether the suit is barred by limitation?
2. Whether the plaintiffs are entitled to get a decree for specific performance as prayed for?
3. Reliefs and costs?” RFA.No.718 OF 2008 5
5. Before the trial court the parties had adduced oral as
well as documentary evidence. The 2 nd plaintiff deposed as PW1 and Ext.A1 was marked. The husband of 1st defendant tendered oral evidence as DW1 and Exts.B1 to B18 were marked.
6. Based on the evidence adduced, the 1st point was answered by the trial court in favour of the plaintiffs and the 2 nd point, against them. Aggrieved by the finding against, the plaintiffs have approached this Court in the captioned appeal.
7. At the time when agreement for sale was executed
among the parties, there was a restraint on entry of defendants into the plaint schedule properties and a review petition as well as M.F.A.No.814 of 1988 filed against and those were pending consideration respectively before the Forest Tribunal, Palakkad and this Court. M.F.A was decided on 19.02.1988. Application seeking special leave filed by the Government before the Apex Court was dismissed on 23.11.1998. In view of the continued
obstruction against peaceful possession and enjoyment of properties, possession of the properties was never given to the plaintiffs. It is clear from a term specifically incorporated in the agreement for sale that actual measurement shall be done after the disposal of the case. The Forest Department initiated proceedings under the provisions of the Kerala Private Forests
RFA.No.718 OF 2008 6 (Vesting and Assignment) Act, 1971 (for short 'the Act') in respect of plaint schedule properties as if the properties are vested in the Government.
8. The main contention of defendants was that they were
not in possession of plaint schedule properties since those were in custody of the Forest Department. In view of the proceedings initiated by the Forest Department under the provisions of the Act, the properties are vested in the Government. The plaint schedule properties were purchased by defendants as per registered assignment deed Nos.1482/1985, 1483/1985 and defendants had filed O.A.No.471/1976 before the Forest Tribunal, Palakkad claiming exemption of 84 acres of land comprised in Re-survey No.1 A1A1 of Kottekkad amsom, desom. Ext.B1
judgment was passed by the Forest Tribunal, wherein it was
made clear that the Forest Department had initiated proceedings as if 112.89 acres of land was vested with the Government under the provisions of the Act. O.A.No. 471/1976 was allowed by the Forest Tribunal by order dated 11.09.1978. Applications filed therein were allowed and thereby retention of possession of 68.50 acres of land including the plaint schedule properties was
allowed. After the amendment of the Kerala Private Forest RFA.No.718 OF 2008 7 (Vesting and Assignment) Act, 1971 by Act 36/1986, the
custodian of the private forest filed Revision Petition as R.P.No.626/1987. The Revision Petition was allowed by the Forest Tribunal by order dated 16.08.1988 and thereby O.A.No.471/1976 was dismissed. From Ext.B1 judgment, it is
clear that the lands allowed to be retained as per order passed in O.A.No.471/1976 on 11.09.1978 were in the possession of the applicants till the disposal of R.P.No.626/1987. The plaint schedule properties were purchased by defendants prior to disposal of R.P.No.626/1987 by the Forest Tribunal, Palakkad. The contention of the defendants was that they were not permitted to enter into the plaint schedule properties by the Forest Officials after the disposal of R.P.No.626/1987. Several letters as Exts.B3 to B11 were written by the defendants to various officials of the Forest in that regard. After the dismissal of O.A.No. 471/1976 against them, the defendants had no right to retain right over plaint schedule properties. Therefore, the defendants have to obtain a document from the Forest Department evidencing release of the property as per the term incorporated in Ext.A1. Exts.B12 to B14 series of documents evidence that the 2nd defendant had mortgaged plaint schedule item No.1 and availed a loan from Palakkad Primary Co-operative RFA.No.718 OF 2008 8 Agricultural and Rural Development Bank Ltd. The repayment of the loan was defaulted by the 2nd defendant and for realisation of the arrears, item No.1 of plaint schedule properties was sold in auction on 28.09.1994. Exts.B16 and B17 are documents to establish that aspect. As per the recitals in Ext.A1, no materials are produced by the plaintiffs to show that they were put in possession of plaint schedule properties pursuant to the sale agreement. In view of the coming into force of the Act the properties were vested in Government. Therefore there is substance in the contention of the defendants that possession of plaint schedule properties was not given to the plaintiffs as part performance of the contract.
9. Ext.A1 was executed by defendants with a genuine intention to get the sale deed in respect of the properties proposed to be sold, executed in favour of the plaintiffs. The defendants were always ready and willing to perform their part of
Ext.A1 agreement for sale. They were prevented from performing their part, in view of the restraint imposed on them by the Forest Officials from entering into the plaint schedule properties for the reason that those properties have been taken over by the Government under the provisions of the Act. Therefore, the case on hand is one wherein the defendants were
RFA.No.718 OF 2008 9 ready and willing to execute the sale deed in favour of the plaintiffs but were prevented from doing so by the provisions of the Act, which came into force then.
10. It is also pertinent to note that the plaintiffs in a suit for specific performance must plead and establish their readiness
and willingness to perform their part. It is true, a specific pleading that the plaintiffs are ready and willing to perform their part of the contract is raised. But the plaintiff as PW1 failed to sworn to that aspect in the proof affidavit filed in lieu of chief examination. Therefore, a decree for specific performance is not liable to be granted in favour of the plaintiffs for twin reasons. The reason firstly was that the plaintiffs failed to plead and prove that they were ready and willing to perform their part of the contract, that is, availability of balance sale consideration with him. The reason secondly was the restraint imposed by the Act which came into force then, on measuring the plaint schedule properties. In those circumstances, the trial court has found that the plaintiffs are not entitled to get the sale deed in respect of the proposed properties executed in their favour, and accordingly declined to grant the decree for specific performance.
11. The learned counsel for the respondents has filed I.A. No.2565 of 2014 in the appeal on hand seeking to accept an
RFA.No.718 OF 2008 10 affidavit filed by the respondents and to mark certain documents produced alongwith as Annexures 1 to 3 and to receive those in additional evidence. Annexure 1 is a letter issued by the Conservator of Forests, Olavakkode Circle to Sri.Alex T.P, Advocate, on 23.01.2003. It was informed by the letter that as directed by Section 8(3)(b) of KPF (V&A) Act, 1971, action being taken to restore the area involved in the above case excluding 8.90 hectors that vested with Government under the Ecologically Fragile Lands Ordinance, 2000, to its ex-owners or successors in interest as proved through a Succession Certificate, after
completing administrative formalities. Annexure 2 is a copy of O.A.No.8 of 2009 obtained by applying under the provisions of
Right to Information Act by the respondents. It is evidenced from Annexure 2 that O.A was filed for quashing the order of the custodian declaring 8.90 acres of land comprised in Survey No.1A1A1 of Kottekkad Amsom of Malampuzha II Village of Palakkad District as ecologically fragile land and to declare that it will not come under the definition of the same.
12. Annexure 3 incorporates an application filed under the
Right to Information Act by one Mr.M.Sebastian, Matha Gardens, Kallepully, Palakkad (Public Information Officer) before the Divisional Forest Officer, Palakkad raising certain queries and the
RFA.No.718 OF 2008 11 answers furnished by the latter for those. The Public Information Officer has informed that properties belonging to Smt.Rajamma and Smt.Lissy (the defendants in the suit) (2.30 and 5 acres respectively) comprised in Survey No.1A1A1 in Malampuzha II Village, Kottekkad Amsom, Palakkad Taluk, Palakkad District which was restored earlier as per Order in O.A.No.471/1976 are not considered as Private Forests (forest land coming within the purview of Kerala Private Forest (Vesting and Assignment) Act), but considered as Forest under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for short
'the EFL Act'). It was also informed that the land is notified as EFL as per Notification No.C6-21437/2000 dated 12.07.2001 of
Principal Chief Forests Conservator, Custodian, Thiruvananthapuram published in Gazette No.36 dated 11.09.2001 and that it was not restored to
respondents/defendants at any point of time.
13. The Interlocutory Application was allowed and the documents produced alongwith being relevant for adjudication of
issues are marked in additional evidence Exts.B19 to B21. It is
clear from the aforesaid documents that the properties comprised in Survey No.1A1A1 and held by defendants by virtue of sale deed Nos.1482/1985, 1483/1985 and 1546/1985 were no longer RFA.No.718 OF 2008 12 remained as Private Forests but are declared as vested forests by the custodian of vested forests as per the provisions of the EFL Act and was not restored to them on 10.11.2001 or on any date subsequent to that. Information has also been furnished that Jandas put on the properties have not been removed and cultivation not permitted. The above informations were furnished respectively on 27.9.2011 and 20.10.2011. Therefore, it is clear that though the defendants were ready and willing to perform their part, in view of the coming into force of the EFL Act, the performance of their part has become impossible. As rightly held by the trial court a decree for specific performance is not liable to be granted in the case on hand. The plaintiffs have no entitlement to obtain the decree. The appeal fails for the reason. In the result, the appeal stands dismissed. sd/- MARY JOSEPH JUDGE NAB