Chellankode Sulochana vs The State Of Kerala
2021 Latest Caselaw 2895 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                  &

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

    WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                    MFA (FOREST).No.27 OF 2012

  AGAINST THE ORDER DATED 30-09-2011 IN OA NO.13/2009 OF FOREST
                       TRIBUNAL, KOZHIKODE


APPELLANTS/APPLICANTS:

             CHELLANKODE SULOCHANA
             D/O SANKARAN, AGED 53 YEARS,P.O. CHELLANKODE,
             (VIA) VADUVANCHAL, MUPPAINADU AMSOM DESOM,
             WAYANAD DISTRICT.

             BY ADVS.
             SRI.R.SUDHISH
             SMT.M.MANJU
             SRI.K.R.RANJITH

RESPONDENTS/RESPONDENTS:

      1      THE STATE OF KERALA
             REPRESENTED BY THE CHIEF SECRETARY,
             GOVT. OFKERALA, THIRUVANANTHAPURAM.

      2      THE CUSTODIAN OF VESTED FORESTS,
             "ARANYABHAVAN", FOREST COMPLEX,
             RAILWAY COLONY, OLAVAKKODE, PALAKKAD.

              BY ADV. SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FOREST

     THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD             ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MFA(Forest)No.27 of 2012                  2




                                   JUDGMENT

Dated this the 27th day of January 2021

Hariprasad,J.

Heard the learned counsel for appellant and the learned

Special Government Pleader for respondents.

2. Aggrieved by the dismissal of an application filed by the

appellant before the Forest Tribunal, Kozhikode under Section 8 of the

Kerala Private Forest (Vesting and Assignment) Act, 1971 (in short,

"Vesting Act") for a declaration that the scheduled property is not a private

forest, she has preferred this appeal.

3. Case borne out from the pleadings in the application is thus:

Appellant is the absolute owner in possession of the property scheduled

to the application. She purchased the property as per Ext.A1 document

dated 01.02.1989 from Thayyullathil Pathumma. In Ext.A1 title deed what

is mentioned by the assignor is that the property belonged to the State

Government in jenm and it was assigned as per proceedings of the

District Collector, Kozhikode in favour of Thayyullathil Pathumma.

4. According to the appellant, the property was originally

belonging to one Annamma Jacob; against her there was a proceedings

under the Kerala Land Reforms Act, 1963 (in short, "KLR Act") and she

was directed to surrender the land held by her in excess of the ceiling

provisions under the said Act. Thereafter the excess land so surrendered

was assigned by the State to various persons including Thayyullathil

Pathumma from whom the appellant had purchased the property.

Appellant further contended that Thayyullathil Pathumma planted coffee

and arecanut trees in the property. Apart from that, pepper vines, silver

oak, jack fruit trees, etc. are also cultivated in the property. It is also

contended that the disputed land was never a private forest. If at all it was

a private forest she is entitled to get exemption under Section 3(3) of the

Vesting Act.

5. The Divisional Forest Officer filed a counter affidavit opposing

the contentions in the application. According to the respondents, the

application is barred by limitation. Respondents also disputed correctness

of the boundaries shown in the document and in the sketch attached to

the application. Respondents further contended that the appellant's

attempt is to claim ownership over vested forest by relying on

unconnected documents. Appellant has not produced any document to

prove that the scheduled property was under her possession and

personal cultivation. She is not entitled to claim exemption under Section

3(2) of the Vesting Act. The area shown in the application is part of vested

forest VFC item No.20 notified as per Ext.B1 notification dated

14.12.1979. The ownership over the land stood vested in the State from

Nilambur Kovilakam as on the date of commencement of Vesting Act,

viz., 10.05.1971. Document executed in the year 1989 between the

appellant and any other person is null and void. It does not confer any

title on the appellant. It is also contended by the respondents that if at all

any decision was taken by the Taluk Land Board constituted under the

KLR Act in respect of the disputed land it will not bind them.

6. After considering the testimony of PW1 and RW1 and

Exts.A1 to A10, B1 and B2, documents marked on both sides and on

perusal of Exts.C1 and C2, commissioner's report and plan, the Tribunal

found that the appellant failed to establish her title over the disputed

property. Tribunal also found that the document produced do not reveal

that the appellant has title in respect of the disputed land.

7. Learned counsel submitted that the appellant committed a

mistake before the Tribunal. Instead of producing all the relevant

documents, Ext.A1 document of the year 1989 alone was produced

before the Tribunal. In this appeal I.A.No.1 of 2019 under Order XLI Rule

27 of the Code of Civil Procedure, 1908 (in short, "CPC") is filed seeking

indulgence of this Court to receive additional evidence. It is pointed out

that despite due diligence, the relevant documents could not be produced

before the Tribunal to establish the appellant's title. Annexure-A3

produced along with the application under Order XLI Rule 27 of CPC is

an assignment deed bearing No.137 of 1963 of Vythiri Sub Registrar

Office. As per Annexure-A3, one Pottakkattu Narayanan Nair had

assigned 85 acres of land in survey No.1110/5A 1A 1C of Muppainad

amsom and desom of Thekke Wayanad Taluk to P.C.Jacob and P.T.John.

In Annexure-A3 it is mentioned that the property belonged to Nilambur

Kovilakam in jenm. From Nilambur Kovilakam it was demised in favour of

the assignor in Ext.A3 for improving the property and for effecting

cultivation. Annexure-A2 is the proceedings of the District Collector,

Kozhikode dated 17.07.1976 showing the allotment of excess lands taken

possession from Annamma Jacob, the widow of first assignee in

Annexure-A3. These lands were assigned by the State to various persons

as per the provisions under the KLR Act. Annexure-A2 shows that an

extent of 50 cents of land was assigned by the District Collector in favour

of Thayyullathil Pathumma. According to the appellant, the disputed land

was assigned to her by Thayyullathil Pathumma. None of these

documents could be produced before the Tribunal to establish appellant's

title.

8. Learned Special Government Pleader contended that

proceedings under the KLR Act do not bind the Forest Department. They

were not heard before issuing the proceedings and they were not made

parties thereto. Therefore, the Department is not bound by the

assignment relied on by the appellant is the contention.

9. True, assignment of the excess land effected under the KLR

Act may not bind the Forest Department if the disputed land was a private

forest, which had been statutorily vested on 10.05.1971 under Section 3

of the Vesting Act. The questions raised here are whether the appellant

can establish her title and whether she is able to show that the land is not

a vested private forest. On going through the reasoning in the order, we

are of the view that none of the vital facts have been brought to the notice

of the Forest Tribunal on account of the non-production of relevant

documents.

10. Relying on the judgment of this Court in M.F.A.No.67 of 2003

dated 23.01.2009 learned counsel for the appellant contended that the

land covered by Annexure-A3 document, which was later assigned

through the proceedings under the KLR Act, was found to be eligible for

exemption. It is also pointed out that the appellant is also entitled to the

same benefit.

11. After hearing the learned counsel on both sides, we are of

the view that this is a fit case where the appellant should be given an

opportunity to produce proper documents before the Forest Tribunal to

establish her title in respect of the disputed property. If the appellant

succeeds in proving title in respect of the disputed property and that it is

not a vested private forest, certainly she is entitled to get a declaration

under Section 8 of the Vesting Act. At the same time we make it clear that

the Forest Department is free to take up all contentions referable to the

Vesting Act. Therefore, we find that to meet the ends of justice, the

impugned order of the Tribunal must be set aside and a remand has

become inevitable in this case.

In the result, the appeal is allowed. The impugned order

O.A.No.13 of 2009 of the Forest Tribunal, Kozhikode is set aside and the

matter is remitted back to the Tribunal for a fresh disposal in accordance

with law and merit of the case. Appellant shall take back the additional

documents produced before this Court vide I.A.No.1 of 2019 and produce

and prove them in accordance with law before the Tribunal. On an

application, the Registry shall return the same to the appellant. In that

event the Tribunal after hearing both sides shall dispose of the matter

within a period of six months.

All pending interlocutory applications will stand closed.

A.HARIPRASAD

JUDGE

T.V.ANILKUMAR

JUDGE

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