K.J.Jose vs State Of Kerala
2023 Latest Caselaw 893 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT
         THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                &
         THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
  TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
                MFA (FOREST) NO.175 OF 2010
 AGAINST THE ORDER DATED 12.03.2010 IN O.A.NO.6/1999 OF THE
                 FOREST TRIBUNAL, KOZHIKODE
APPELLANTS:

    1     K.J.JOSE, S/O.JOSEPH IYPE
          KOCHUMUTTATHU HOUSE, THIRUVIZHAMKUNNU P.O.,
          MANNARKKAD, PALAKKAD.
    2     ELSAMMA GEORGE, W/O.GEORGE
          KOCHUMUTTATHU HOUSE, THIRUVIZHAMKUNNU P.O.,
          MANNARKKAD, PALAKKAD.
          BY ADV SRI.M.C.JOHN


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF
          KERALA, THIRUVANANTHAPURAM.
    2     THE CUSTODIAN OF VESTED FORESTS
          ARANYA BHAVAN FOREST COMPLEX, OLAVAKKODE,
          PALAKKAD.
          BY SRI.NAGARAJ NARAYANAN, SPL.G.P [FOREST]


     THIS MFA (FOREST)   HAVING COME UP FOR ADMISSION ON
17.01.2023, THE COURT    ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MFA(Forest) No.175/2010
                                   2




            K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
                  -------------------------------------------
                   MFA(Forest) No. 175 of 2010
                  -------------------------------------------
              Dated this the 17th day of January, 2023

                              JUDGMENT

K.Vinod Chandran, J

Three applications under S.8 of the Kerala Private Forest

(Vesting and Assignment) Act, 1971, (for brevity, the Vesting Act) were

filed before the Forest Tribunal, all of which stood rejected. The appeal

is from the common order, in which, only two applicants challenge the

same. Since the applicants in all the applications traced the title to a

common predecessor, the Tribunal disposed of the applications by a

common order. The scheduled properties were said to belong to one

Kuthiravattom family, a senior member of which leased out an extent of

9 acres comprised in Sy.No.235A1, 2 of Thiruvizhamkunnu amsom

desam in favour of one Pokker, S/o Syed Ali, as per a registered pattam

cheet no.2430 dated 15.10.1928 of S.R.O., Mannarkkad. Pokker

subleased the properties by written agreement dated 15.4.1962, in

favour of the predecessors-in-interest of the appellants herein. The MFA(Forest) No.175/2010

appellants are the son and daughter-in-law of the predecessors-in-

interest. The father of the 1st appellant is said to have purchased the

lease hold right from Pokker in 1970, and cultivated the land with cash

crops and then rubber in 1970. The first appellant purchased the

property by document No.716 dated 25.4.1986(Ext.A2) and the 2nd

appellant's husband another son of the couple, as per document

No.1584/83 dated 27.12.1983 (Ext.A4). We are not dealing with the

facts in O.A.No.7/1999, the applicant in which has not chosen to file an

appeal. However, it is pertinent to note that though the predecessor-in-

interest, Pokker had possession of only 9 acres, even the claim of the

applicant in O.A.No.7/1999 asserts purchase of 2 acres from the assignor

of Pokker, when the entire property in the possession of Pokker is

covered by the sale deeds executed in favour of the appellants herein.

2. The appellants themselves admitted that the scheduled land

was a part of Kelalloor Malavaram (slope of a hill) notified on

10.10.1977, and included as item No.17. The total extent of Kelalloor

Malavaram in Sy.No.235 part was also asserted by the respondents to be

having an extent of 560 hectares, whereas, the total extent of

Sy.No.235A1, 2 as per revenue records is 4875.72 hectares. It was MFA(Forest) No.175/2010

hence argued that there were areas which were not vested in the

Government and the particular scheduled land is neither a private forest

nor governed by the Madras Preservation of Private Forest Act, 1949,

(for brevity, the MPPF Act). It was also contended that the lands were

dry lands cultivated prior to and on the appointed day under the Vesting

Act. Alternatively it was also pleaded that the persons who were in

possession of the property as on the appointed day were intending to

cultivate the property and did not hold lands in excess of the ceiling

limits under the Kerala Land Reforms Act.

3. The Divisional Forest Officer, Mannarkad, asserted that the

disputed property is part of the vested forest called Kelalloor Malavaram

having an extent of 560 hectares notified on 10.10.1979, in which it was

included as V.F.C. item No.17. It was asserted that there were

predominant growth of forest species trees in the property which were

aged about 100 to 150 years and entire area was fully covered with

undergrowth. The applicants were alleged to have encroached on the

property. The title, possession and cultivation claimed by the applicants

were disputed. It was also alleged that there was nothing to establish the

owner as on the appointed day having not possessed property in excess MFA(Forest) No.175/2010

of the ceiling limit under the Land Reforms Act.

4. Once the applications were dismissed and there was a remand

made by this Court specifically directing the Tribunal to examine the

evidence and arrive at a finding as to whether the scheduled lands are

private forest under the Vesting Act, and if they are so found, whether

the owners are entitled to exemption under S.3(2) or (3) of the Vesting

Act. The Tribunal raised four issues; whether the land is governed by the

MPPF Act, if not, whether it is a private forest as defined otherwise under

the Act, the exemption either under S.3(2) or (3) of the Act and the

entitlement for the declaration. The Tribunal found that the land is a

property governed by the MPPF Act having a total extent of more than

100 acres, which is a private forest as defined under S.2(f)(1)(i) of the

Act. There was no evidence adduced as to who was in possession of the

property as on the appointed day and it was not also established that

there was any personal cultivation in the property. Since, there was no

registered document on the basis of which the land was held as on the

appointed day, the exemption under S.3(3) for lands held with intention

to cultivate was found to be inapplicable. On the third requirement

regarding lands being held by the owners within the ceiling limit under MFA(Forest) No.175/2010

the Land Reforms Act also, the Tribunal found no evidence adduced. The

applications stood rejected.

5. We heard Sri. M.C.John, learned Counsel appearing for the

appellants and Sri. Nagaraj Narayanan, Special Government Pleader

(Forest) appearing for the respondent.

6. It was the specific contention of the applicants that one

Damodharan @ K.C.M. Janardhanan Thampan who was the senior

member of Kuthiravattom family; on which family there was jenmam of

the properties, demised the properties on lease by a registered pattam

cheet of 1928 of S.R.O, Mannarkad. However, the original or a certified

copy of the same was not produced. The further agreement entered into

between Pokker and the predecessor-in-interest of the appellants, which

was stated to be a written agreement dated 15.4.1962, though produced

was not a registered document. Admittedly, Pokker obtained lease of

only 9 acres of property which was subleased in the year 1962 to Joseph

Iype and his wife Clara, the parents of the first applicant. On remand,

applicants produced Ext.A6 which is stated to be the pattam cheet

executed by Pokker in favour of the parents of the first applicant. Ext.A6

indicated the lease having been created for a rent of Rs.1/- with respect MFA(Forest) No.175/2010

to 9 acres of paramba and that the leasehold right of the lessee was

obtained by a registered deed. The proof with reference to Ext.A6 was

disputed by the Government Pleader, especially since PW1, through

whom it was marked, was not an executant. Subsequently, PW5, the son

of one Kunhimoidu, a witness to Ext.A6 document was examined to

prove the signature of the witness. The Tribunal found that PW5, at the

time of execution of the document, was only 10 years old and his

testimony was that he had acquaintance with his father's signature on

seeing him affixing his signature in a bank. The Tribunal disbelieved the

evidence of PW5, especially since the witness had seen his father affix

the signature only once. Ext.A6 hence was found to be not reliable by the

Tribunal, which we fully agree with.

7. In so far as the property being covered by the MPPF Act, it is to

be observed that even the applicants had admitted that the scheduled

lands are part of Kelalloor Malavaram. The respondent has specifically

stated that it is part of the Malavaram which has a total contiguous area

of more than 100 acres. Ext.B2 is also the periphery sketch showing that

the Malavaram has a vast area which is said to be 560 hectares. The total

extent of the properties covered by the three applications came to 11 MFA(Forest) No.175/2010

acres. The boundaries were also noticed by the Tribunal which were

private properties on the east and west, a road passing through the

south, and vested forest, on the north. There was no proof offered by the

applicants which could override the inference possible, from the

testimony and documents, that the property is governed by the MPPF

Act, and hence, is a private forest as defined under S.2(f)(1)(i) of the

Vesting Act, lying contiguous to a vested forest. There is absolutely no

evidence regarding any cultivation having been carried out in the

property as on the appointed day, which excludes the property under

Clauses (A) to (C) of S.2(f)(1)(i) of the Vesting Act. The applicants also

did not have a case of any building existing in the property which alone

could invite application of Clause (D) of S.2(f(1)(i). Hence, the property

has been established to be a land, coming within the definition of private

forest under the Vesting Act and governed by the MPPF Act.

8. As for the title, the applicant in O.A.No.6/2009 contended that he

obtained the property as per a registered deed, Ext.A2, dated 25.4.1986,

and claimed the land to be a pucca rubber estate under the possession

and enjoyment of the applicant. The original of Ext.A2 was not produced

since it was deposited before the Federal Bank. A certificate was MFA(Forest) No.175/2010

produced as Ext.A1 which was attested by the Manger of the Federal

Bank along with Ext.A2 attested photo copy; which is not even a certified

copy of the document. The Tribunal refused to accept Ext.A2 as a valid

piece of evidence of title of the first applicant, since it was neither the

original or the certified copy. We have to note that even the Bank

Manager was not examined, in whose custody the original of the

document was kept. Despite that we have looked into Ext.A2 which does

not refer to any sub-lease or a written agreement dated 15.4.1962, by

which the parents of the applicant obtained the properties from Pokker.

In fact the recitals in Ext. A2 indicate an oral purchase by the father of

the applicant from Pokker in the year 1970; which has not been proved.

The written agreement, Ext.A6, produced by the applicant was not at all

referred to in Ext.A2. Further, in Ext.A2, the sale is only of 4 acres 45

cents and there is no reference to the total extent of 9 acres obtained by

the vendor on sublease or purchase.

9. We have already referred to the document produced in

O.A.No.7/1999, Ext.A3, from which application there is no appeal filed.

The applicant in the above case also traced the title & possession of the

property to Pokker, from whom his father is said to have purchased MFA(Forest) No.175/2010

leasehold right and then transferred 2 acres in the name of the applicant.

The said contention has to be looked at with suspicion, especially since

the 9 acres obtained on lease by Pokker was said to have been given on

further sublease to the parents of the first appellant herein.

10. Be that as it may, we have examined the claim of title raised by

the 2nd appellant who was the applicant in O.A.No.8/1999. Ext.A4

document is said to be the purchase made by the husband of the

applicant from his parents. Obviously the husband of the 2 nd applicant is

the brother of the 1st applicant. The husband of the 2nd appellant is said

to have purchased 4.70 acres by Ext.A4. Ext. A4 is however a deed

executed by the 1st appellant in favour of his brother and the said

properties are said to be obtained by the 1 st appellant in the year 1970

from Pokker, again by an oral sale. This is quite in divergence to the

claim put forth in the application and before us. On a perusal of the

application in O.A. 8/1999 filed by the 2 nd appellant, Elsamma, the claim

of title is on the document of 1983 from the parents to the son. Ext.A4,

however is a document executed by the 1 st appellant, Jose, in favour of

his brother, George, the husband of Elsamma. The 1 st appellant who was

examined as PW1 admits execution of Ext.A4 and in cross examination MFA(Forest) No.175/2010

speaks a totally new story of he having taken the lands scheduled in O.A

8/1999 from Pokker Haji for Rs. 25/- per acre, pattam. The deed

however recites only an outright oral purchase as on 1970. The very

same defects noticed by the Tribunal in Ext.A2 document, vitiates the

validity of Ext.A4 also, more so since the purchase of Jose from Pokker is

not at all the case of the applicants. In the above circumstances, we have

to hold that neither was the title of the scheduled properties in the

respective O.As established on the respective applicants nor was the title

proved on any particular person or persons, who possessed the

properties as on 10.5.1971. From the pleadings, it has to be noticed that

the parents of the first appellant who are the in-laws of the 2 nd appellant

were holding the property as on the appointed day under the Vesting

Act, the proof of which is not forth coming from the evidence led.

11. The first appellant was examined as PW1 and two employees

were examined as PWs 3 and 4. PW1 has no consistent stand with

respect to how the predecessors came into possession of the scheduled

lands in both the O.As. A written sublease of 1962, with respect to both

the scheduled lands, was claimed, which was attempted to be proved by

Ext. A2; which miserably failed. The sub-lease is not seen referred to in MFA(Forest) No.175/2010

the documents A2 & A4, alleged title deeds of the respective applicants.

However both the deeds refer to the executants having made the

purchase orally from Pokker; without any evidence to substantiate it. In

the testimony the very facts pleaded in O.A 8/1999 was differed from

and an oral purchase claimed by the 1st appellant in 1970. We have to

hold that Ext. A2 & A4 cannot at all be relied on, putting to serious

dispute the title of the applicants and the locus standi, to make an

application before the Forest Tribunal.

12. The father of the first appellant, Joseph Iype was also examined

through a Commission; not noticed by the Tribunal. The deposition of

Joseph Iype is produced as Ext.C10, as available in the records. According

to him, as per an oral agreement, he had taken nine acres of land from

Pokker in 1962 and there was sesame and modan (paddy) cultivated in

that land. It was also stated that later, Pokker sold the property to him

and there were two witnesses to the said sale. He also admits that there

was no formal deed executed for the transaction and that he had not paid

the pattam agreed upon either to Pokker or the original landlord. It is to

be noticed that the above statements are contrary to the pleadings and

the evidence led. Ext.A6 was produced as the written lease executed by MFA(Forest) No.175/2010

Pokker in the year 1962 in favour of Joseph Iype. As for the sale of the

properties to Joseph Iype by Pokker; both the documents, Exts.A2 and

A4, speak of an oral purchase by which the respective vendors of the

documents came into possession and ownership of the lands.

13. Joseph Iype also makes a casual statement that the rubber trees

were planted at about 1968 and immediately corrects it as, the rubber

having been planted properly in 1974, which is now being tapped.

Joseph Iype also said that Jose, the 1st appellant had also purchased land

from Pokker which land was sold to the husband of the second appellant,

another son of Joseph Iype. In cross-examination, Joseph Iype further

admitted that the rubber plantation was after 1971. Even if Joseph Iype

is found to be the person who had possession of the properties as on the

appointed day under the Vesting Act, his evidence does not support or

bring forth a plantation having been raised prior to the appointed day.

The cultivation spoken of, is also sketchy and does not inspire confidence

in this Court to absolve the property from the statutory vesting under

the Vesting Act.

14. According to the applicants, after the sublease by the

predecessors-in-interest, the predecessors-in-interest were cultivating MFA(Forest) No.175/2010

the property with seasonal crops and in 1970, they commenced rubber

plantation. PW3, a nearby resident, aged 80 years, deposed that Joseph

Iype was cultivating the property with ginger, tapioca etc. and after 4 or

5 years, Joseph Iype's children planted rubber and pepper. PW3 also

deposed that the rubber trees are aged about 30 years. When the

children of the original lessee of Pokker obtained possession of the

property only long after the appointed day, in the year 1983-84

definitely PW3's testimony cannot be relied on to find rubber plantation

in the property as on 10.05.1971, the appointed day under the Vesting

Act. PW4 also deposed that Joseph Iype came to the locality in 1960-62

and cultivated the property with modan, ginger and tapioca. He also

endorsed that, at present, there is rubber, coffee, coconut and pepper in

the property. There is nothing to show that, as on the appointed day,

there was a rubber plantation existing in the property nor is there such a

contention taken in the application filed by the appellants.

15. Ext.C1 commission report in O.A 6/1999, indicated that there

are rubber trees aged about 20 to 25 years in the property which was

inspected by the Commissioner in the year 1999. There were also 14

forest species trees reported in Ext. C1 which trees were aged between 5 MFA(Forest) No.175/2010

to 30 years. The approximate age of the rubber trees as noticed by the

Commissioner makes it further clear that those were planted only after

the appointed day under the Vesting act. There was a further inspection

carried out to verify the number and girth of the rubber trees, which

were stated to be 564 and the Girth at Breast Height to be 77 cms, in Ext.

C2 report. Ext.C7 commission report in O.A 8/1999 also indicated

rubber trees aged about 20 to 25 years in the property which inspection

was also in the year 1999. The approximate age of the rubber trees as

noticed by the Commissioner makes it further clear that those were

planted only after the appointed day under the Vesting Act. There were

130 forest species trees reported in Ext. C7 which trees were aged

between 5 to 40 years along with 10 cashew trees of age 25 years and a

bamboo cluster. About 50 cents of the land in O.A 8/1999 was found to

be thick rocky portion. There was a further inspection carried out to

verify the number and girth of the rubber trees, which were stated to be

700 and the Girth at Breast Height to be 56 cms in Ext. C8 report. The

Tribunal has also noticed the girth of the trees as spoken of by the

Commissioner and age indicated by the Commissioner which does not

offer any valid ground for exemption on the basis of rubber plantation in MFA(Forest) No.175/2010

the property as on the appointed day.

16. We find no reason to interfere with the orders of the Tribunal.

The appellants herein had produced documents, by which they acquired

the property long after the appointed day; which itself are suspicious.

Their specific case regarding their predecessors-in-interest, that they

held the property as on 10.5.1971, is not established in evidence, either

on the strength of an oral agreement or a registered one reduced to

writing. Though there is reference to registered documents by which a

lease was created and later a purchase was made, none of these were

produced before Court. There are conflicting assertion of a written lease,

as attempted to be proved by Ext.A6, but the documents A3 & A4, the

title deed of the appellants, speak of an oral purchase. The document of

title as claimed by the first appellant was not produced in original or a

certified copy. The recitals in the title deeds produced by the appellants

herein did not support the case put forth by them as to how the property

was obtained by their vendors. The property having been found to be

covered under the MPPF Act and coming within the definition of private

forest under the Vesting Act, there was no claim of exclusion under

Clause (A) to (D) of S.2(f)(1)(i). Though rubber plantation was found by MFA(Forest) No.175/2010

the Commissioner, the same was found to be planted after the appointed

day; evident also from the testimony of Joseph Iype. The case put forth,

that the predecessor-in-interest planted rubber in the property in 1970

has not been established by any substantive evidence. As on the

appointed day, there is no proof that the predecessors-in-interest of the

appellant held the property on the strength of a registered deed and

hence, sub-section (3) of S.3 has no application. There is also no proof of

a cultivation in the property having been carried out as on the appointed

day. The so called neighbours examined as PW3 and PW4 makes bland

assertions of seasonal crops without any substantive evidence being

tendered. The claim under S.3(2) also fails miserably.

We reject the appeal leaving the parties to suffer their respective

costs.

Sd/-

K.VINOD CHANDRAN, JUDGE

Sd/-

C.JAYACHANDRAN, JUDGE

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