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1986 DIGILAW 85 (KER)

K. D. Mani v. The State Of Kerala

1986-02-26

K.T.THOMAS, U.L.BHAT

body1986
JUDGMENT 1. The Forest Tribunal, Manjeri has dismissed an application filed by the appellant under section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short 'the Act') for a declaration that the petition schedule property is not a private forest. Hence the appellant has come up with this appeal. 2. In the application the appellant claims right over an area of 7 acres in Agali Village (Mannarghat Taluk). The application further states that the said area forms part of 50 acres of land which his brother, Chacko and nine others obtained as per an assignment of a leasehold right in the year 1956, the appellant got 12 1/2 acres of land by way of an oral sale in 1960 from his brother Chacko, which is a portion of the aforesaid 50 acres of land and later the appellant had attorned to the lessor in 1962. According to him, the land sold to him had been cultivated by him with rubber, jack trees, plantain etc., from 1962 onwards, and he has obtained a certificate of purchase from the Land Tribunal, Agali in respect of the said land. But when the forest officials prevented him from enjoying the petition schedule property he filed the application for a declaration that the said land is not a forest area. In the counter statement filed by the Divisional Forest Officer, on behalf of the State of Kerala, it is contended that the petition schedule property is a portion of the vested forest coming within the definition of private forest under the erstwhile Madras Preservation of Private Forests Act, 1949 (for short 'the MPPF Act'). He further says that no sort of cultivation was raised in the area at any time prior to 10th May 1971 which is the appointed day as per section 3(1) of the Act. 3. The Forest Tribunal has found that the petition schedule property was governed by the provisions of the erstwhile MPPF Act immediately prior to 10th May, 1971. He further found that the appellant has failed to prove his ownership over the land and that the said property had not been cultivated at any time prior to 10th May 1971. 4. 3. The Forest Tribunal has found that the petition schedule property was governed by the provisions of the erstwhile MPPF Act immediately prior to 10th May, 1971. He further found that the appellant has failed to prove his ownership over the land and that the said property had not been cultivated at any time prior to 10th May 1971. 4. The appellant cannot possibly support his case of ownership based on the oral sale alleged by him in his application and even the learned counsel for the appellant has not attempted to make out such a case. His main contention is based on Ext.A2, a certificate of purchase, dated 25th July, 1975 issued from the Land Tribunal Agali in OA No. 1005 of 1972. It pertains to a land having an extent of 5 hectares and 2609 acres in Agali Village. According to the appellant, the petition schedule property is a portion of the Land covered by Ext.A2 certificate of purchase. The contention of the appellant is that due weight, ought to have been given to a certificate of purchase in view of section 72K of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) (for short 'the KLR Act'), As per the said section, "the certificate of purchase issued under sub-section.(1) shall be conclusive proof of the assignment of to the tenant of the right, title and interest of the land owner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates". The learned counsel has referred to the decision of the Supreme Court in Mathew v. Taluk Land Board 1979 KLT 601 in support of his contention that a certificate of purchase is conclusive proof of the assignment of the right, title and interest of the landowner for the land mentioned in it. No doubt that the certificate is conclusive proof of the same. But, what is the ambit of that conclusive proof, when such a certificate is pressed into service in different proceeding. The Supreme Court in the decision cited supra has observed that: "...........It is however not the requirement of the law that the certificate of purchase shall be conclusive proof of the surplus or other land held by its holder so as to foreclose the decision of the Taluk Land Board under sub-section (5) of section 85. The Supreme Court in the decision cited supra has observed that: "...........It is however not the requirement of the law that the certificate of purchase shall be conclusive proof of the surplus or other land held by its holder so as to foreclose the decision of the Taluk Land Board under sub-section (5) of section 85. It would thus appear that even though the certificate of purchase issued under sub-section (1) of section 72K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder in respect of the holding concerned under sub-section (2), that only means that no contrary evidence shall be effective to displace it, unless the so called conclusive evidence is 'inaccurate on its face' or fraud can be shown. It may be stated that 'inaccuracy on the face' of the certificate is not as wide in its connotation as an 'error apparent on the face of the record'. 5. It is contended by the learned counsel for the appellant that unless a certificate is vitiated by fraud or collusion, it has to be acted on and the conclusiveness of its proof has to be upheld. The Supreme Court has made it clear that if the conclusive evidence is inaccurate on the face of the certificate of purchase, contrary evidence shall be effective to displace the conclusiveness. If in a case a certificate of purchase is granted without notice to the necessary parties, what is its consequence? Reference has been made to some of the decisions of this Court on the subject. 6. In the decision in S. A. No. 588/79-F of this Court (the ratio is reported in 1979 KLT SN 69) Khalid, J. (as he then was) has held that "the conclusive nature of the certificate can be put forward only when it has been secured properly and it is not tainted by any vitiating circumstances and also when the tenancy on which it is based has not been finally settled earlier, and a person who flourishes a purchase certificate under circumstances obtaining in this case, secured without notice to necessary parties, calculated to unsettle concluded findings of civil courts regarding the tenancy put forward without telling the Land Tribunal all the relevant facts and materials should not be allowed to benefit by his act". The Learned Judge in another decision in Velappan v. Thomas 1979 KLT 412 has observed that "a purchase certificate issued in proceedings where individual notice is not issued to the landowner cannot operate against him in spite of section 72K(2), even if a public notice has been issued under sub-section (1) of section 72F". The above observation has been followed by M. P. Menon, J. in Sree Karikad Devaswom v. Wandoor Jupiter Chits 1980 KLT 760 . It must be noted that the learned Judge in the said decision has considered the Supreme Court decision cited supra and he did not find any reason to dissent from the view taken by Khalid, J. in Velappan's case 1979 KLT 412 . One of us (Bhat, J.) had occasion to consider the effect of the conclusive nature of the proof envisaged in section 72K of the KLR Act in SA No. 875 of 1976 [Judgment, dated 2nd September, 1981 - Chandran Nair v. Kunhabu Nair 1981 KLT SN 83]. It has been observed therein that ''a purchase is not conclusive as against a person to whom individual notice has not been issued before passing such order directing issuance of the purchase certificate". We are of the view that the law has been correctly stated in those decisions. 7. If the land in question had vested in the Government as on 10th May 1971 [the appointed date as per section 3(1) of the Act] it is clear that a certificate of purchase issued long thereafter, in a proceeding initiated subsequent to the aforesaid vesting, without the junction of the Government in the proceedings, cannot affect the rights of the Government. There is no case for the appellant that the Government was made a party in the proceedings in the Land Tribunal which issued Ext.A2. That is an inaccuracy on the face of Ext.A2. Thus the certificate of purchase, Ext.A2, cannot be given the benefit of section 72K of the KLR. Act. If so, Ext.A2 cannot have more evidentiary value than any other document. The appellant has not produced a copy of the order of the Land Tribunal pursuant to which Ext.A2 certificate was issued. That is an inaccuracy on the face of Ext.A2. Thus the certificate of purchase, Ext.A2, cannot be given the benefit of section 72K of the KLR. Act. If so, Ext.A2 cannot have more evidentiary value than any other document. The appellant has not produced a copy of the order of the Land Tribunal pursuant to which Ext.A2 certificate was issued. As the appellant's case is based on an oral purchase of a leasehold right which cannot be recognised as valid in law, how could the Land Tribunal have granted a certificate of purchase to the appellant upholding his claim of tenancy right ? Thus we are unable to act on Ext.A2. There is a further difficulty with Ext.A2. As per section 72K, the assignment of the fight, title and interest of the landowner would take place only upon the determination of the purchase price by the Land Tribunal. Ext.A2 shows that it was granted in OA No. 1005 of 1972. Evidently the determination of the purchase price could have been made only long after the date of vesting i.e. 10th May 1971. Hence if the vesting has taken place on that date, no further right will remain with the landowner or intermediary (if any) as far as this land is concerned. Therefore Ext.A2 will have no bearing on the right of the Government with whom the land is vested as per section 3(1) of the Act. 8. As the appellant has no other material to prove his title to the land in dispute, we hold that the appellant has failed to show that he is its owner. 9. There is no satisfactory evidence to establish that the land had been brought under cultivation either by the appellant or anyone else prior to the appointed date. The appellant's testimony as PW1 is interested and hence we cannot rely on that as the sole basis for his claim that the land was under his cultivation before the appointed day. No other point has been urged by the learned counsel for the appellant. Thus we find no reason to interfere with the order under attack. In the result we confirm the order and dismiss the appeal, but without any order as to costs.