Kerala High Court
Ummusalma vs State Of Kerala And Another on 24 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA,
1942
MFA.No.100 OF 2007
AGAINST THE ORDER/JUDGMENT IN OA 11/2005 DATED 30-09-2006 OF
FOREST TRIBUNAL, KOZHIKODE
APPELLANT/S:
UMMUSALMA
RESIDING AT MYLAMPULLI,MUNDUR,PALAKKAD.
BY ADVS.
SRI.JIBU P THOMAS
SRI.T.C.SURESH MENON
SRI.SUNIL J.CHAKKALACKAL
RESPONDENT/S:
1 STATE OF KERALA AND ANOTHER
CHIEF SECRETARY,GOVERNMENT OF KERALA,,
THIRUVANANTHAPURAM.
2 CUSTODIAN OF VESTED FOREST
ARNYA BHAVAN, FOREST COMPLEX,, OLAVAKKODE
PALAKKAD.
R1 BY GOVERNMENT PLEADER
R1-2 BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR
FOREST
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MFA No. 100 of 2007 2
A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ
------------------------------------------------------------
MFA (Forest Act) No. 100 of 2007
-----------------------------------------
Dated this the 24th day of February, 2021
JUDGMENT
A.Hariprasad, J.
Heard the learned counsel for appellant and the learned
Special Government Pleader for the State.
2. The order passed by the Forest Tribunal, Kozhikkode on
OA No. 11/2005 denying the appellant's claim under Sec.8 of the
Kerala Private Forest (Vesting and Assignment) Act, 1971 (in short
'the Vesting Act') to get a declaration that the schedule property is
not a private property is under challenge. The appellant approached
the Tribunal contending that she is the owner of the petition
schedule property and she obtained the property as per Ext.A1 jenm
assignment deed from one A.K.Raveendran Nair. The appellant and
her predecessor in title had cultivated the property. After she
purchased the property, it was planted with rubber. According to
her, the property is not a private forest, which has been vested
under Sec.3 of the Vesting Act. The appellant's house is situated in
the property adjacent to the disputed area. The disputed area is
having only 9 cents in extent. Therefore, the appellant claimed that
there should a declaration under Sec. 8 of the Vesting Act in her
favour.
3. The respondents contested the case stating that the
property is part of a vested forest known as 'Aramanikkad' vested
forest. The entire area was governed by the erstwhile Madras
Preservation of Private Forest Act, 1949 (in short MPPF Act). The
area inclusive of the disputed property was notified as vested forest
in 1979 as V.F.C. item No. 139 bit I. The area inclusive of the
disputed property comprised in Aramanikkad is having a total extent
of 213.52 hectares. The disputed property was not brought under
any cultivation as on or before 10.5.1971. The present cultivation
seen in the property had been done by encroaching into the forest
land. According to the respondents, the appellant's attempt is to
grab a private forest.
4. Before the Tribunal, on behalf of the appellant, PW1
testified. Forest Range Officer deposed as RW1. Exts.A1and A2 were
marked on the side of the appellant. Ext.B1 copy of notification and
Ext. B2 copy of survey plan were produced by the respondents.
Commissioner's report are C1 to C3.
5. After considering the rival contentions, the Tribunal
dismissed the application finding that the appellant failed to prove
that the disputed property was not a private forest as on the
appointed day. It is trite law that the burden is on the
applicant/appellant to show that the disputed property is not a
private forest. In order to discharge that burden, the appellant's
husband testified and produced Exts. A1 and A2. Ext. A1 is the jenm
assignment deed in favour of the appellant, which is dated
30.3.1992. By looking into this document, the claim raised by the
appellant cannot be decided because it is much after the appointed
day, namely 10.5.1971. Ext.A2 is the previous title deed of the
appellant's assignor. It is a settlement deed dated 19.1.1987. That
document also will not clinch the issue. Per contra, the State relied
on Ext.B1 notification dated 10.10.1979 and Ext.B2 copy of survey
plan to show that the disputed property is part of a private forest
vested in the Government under Sec.3 of the Vesting Act. The
Tribunal after considering the entire matter in paragraph 8 held so:
"8. In view of the finding above, the disputed property should be
private forest as on the appointed day if it did not come under any of
the clauses in clauses (A) to (D) to Sec.2(f)(l)(i) of the Vesting Act. PW1
who is the husband of the petitioner has deposed that the
improvements in the disputed property are coconut and rubber. He
conceded in cross-examination that rubber was planted after the
purchase of the property by his wife. The document in favour of his
wife is Ext.A1 executed in 1992. Therefore the rubber trees could be
planted only in or after 1992. PW1 did not say that the coconut trees in
the property were available even on 10.5.71 and before. For these
reasons it should be found that there was no cultivation as on 10.5.71.
It should be noted that neither in the petition it was alleged nor did
PW1 speak that there was any kind of cultivation in the disputed
property as on 10.571 and before. For these reasons it should be found
that there was no cultivation as on 10.5.71. It shall mean that the
disputed property would not fall under any of the clauses in clauses (A)
to (D) to Sec.2(f)(l)(i) of the Vesting Act. It is true that the property is
now separated by compound walls on 3 sides. There is no evidence
when the same were constructed. The disputed property was not
measured with reference to the particulars shown in Exts.A1 and A2 to
verify whether the extent shown in those documents was satisfied with
the inclusion of the disputed property or without. To conclude, I find
that the petitioner failed to prove that the disputed property was not a
private forest as on the appointed day. She is therefore not entitled to
the declaration prayed for."
6. Learned counsel for the appellant vehemently contended
that the Tribunal has gone wrong in not appreciating the case of the
appellant. According to him, he could trace out a document bearing
No.593/75 SRO, Palakkad. According to the learned counsel, this
document would show that the predecessor in title of the appellant
had purchased the property with an intention to cultivate the land.
The appellant's claim is based on Sec.3(2) of the Act, which reads as
follows :
"Sec.3 Private forests to vest in Government
(1) - xxx xxx
xxx xxx
(2) - Nothing contained in sub-section (1) shall apply in respect of so
much extent of land comprised in private forest held by an owner
under his personal cultivation as is within the ceiling limit applicable
to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any
building or structure standing thereon or appurtenant thereto.
Explanation -For the purpose of this sub section, "cultivation"
includes cultivation of trees or plants of any species."
7. In order to establish that the appellant or her
predecessor in title was possessing the land for personal cultivation,
there must be cogent evidence produced before the Tribunal. Even
though learned counsel for the appellant placed reliance on a
decision rendered by the Apex Court in Joseph v. State of Kerala
[2007 (3) KLT 144], we find that the facts in the above decision do
not match with the facts in this case. Therefore, the ratio in para
Nos. 16 and 17 mentioned in the above decision cannot be applied
in this case to accept the appellant's case.
Having regard to the rival contentions and the matters
considered by the Tribunal, we find no reason to interfere with the
well reasoned order passed by the Tribunal. Therefore, the appeal
fails and it is dismissed.
Sd/-
A.HARIPRASAD
JUDGE
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
