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1987 DIGILAW 147 (KER)

STATE v. KODAKKAT POCKER

1987-03-24

V.SIVARAMAN NAIR

body1987
Judgment :- 1. The appeal is filed against the order of the Forest Tribunal, Palghat in OA Nos. 889 and 1102 of 1974. The applications were allowed by the Forest Tribunal holding that the entire extent shown in the respective Original Applications are not private forest but cashew plantation coming within the exclusion under Act 26 of 1971. 2. The parties will be referred to in this judgment by their ranking before the Tribunal. 3. The applicants in OA Nos. 889 of 1974 and 896 of 1974 are brothers. The applicant in OA 1102 of 1974 is the wife of the applicant in OA 889 of 1974. The lands comprised in the Original Applications lie contiguous. The extent of the lands in the Original Applications are 10 acres, 14.40 acres and 8 acres respectively. The entire extent of the land was purchased by the mother of the applicants in OA No. 889 and 896 of 1974 on kanom rights. Their case is that after they obtained rights over the properties they planted cashew trees in almost the entire extent of the property and in small portions they have raised fugitive cultivation. 4. Respondents filed counter statement contending that the lands in dispute form part of Anangan Mala which is an extensive forest area governed by the MPPF Act, that there is natural forest growth in the properties and that no cultivation was effected in it. 5. The Forest Tribunal by common order dated 19-8-1977 held that the applicants are not entitled to exemption either under S.3(2) or S.3(3) of Act 26 of 1971 and dismissed the applications. Applicants filed MFA No. 172,173 and 174 of 1977. On 23-7-1979 this court set aside the order of the Tribunal and remanded the case for fresh disposal. There was a direction to afford opportunity to adduce fresh evidence. After remand the present Tribunal allowed the Original Applications holding that the properties in the OAs. are cashew plantations. 6. The Tribunal relied on the commission report for its finding that the properties are cashew plantations. Government Pleader submitted that the commissioner has not properly identified the property and therefore on that score alone no reliance can be placed on his report. are cashew plantations. 6. The Tribunal relied on the commission report for its finding that the properties are cashew plantations. Government Pleader submitted that the commissioner has not properly identified the property and therefore on that score alone no reliance can be placed on his report. Government Pleader also submitted that at the time when the commissioner visited the property nobody was present on the side of the respondents, and the commissioner identified the properties only with the help of its boundaries as scheduled in the Original Applications and as pointed out by the applicants. It is pointed out that the commissioner has not properly identified the properties and this has resulted in a thoroughly wrong report which has nothing to do with the real state of affairs. To substantiate the above contention Government Pleader referred to the averments in the petitions. The averments in the petitions are not sufficient to show that the properties are cashew plantations. Hence it is evident that the properties inspected by the commissioner are not the properties scheduled in the Original Applications. 7. Commissioner stated in the report that the property in OA 839 of 1974 is a cashew plantation. He stated that he saw in the property yielding cashew trees, which are 15 to 20 years of age. In OA 889 of 1974 the applicant has stated that cashew trees are planted only in a portion of the property. But the commissioner has stated that the property is a cashew plantation. In OA 896 of 1974 the commissioner stated that the property is a cashew plantation except in some rocky portion where no plantation is possible. In the OA what the applicant has stated is that a portion of the property is cashew plantation and the rest used for agricultural purposes. In the property scheduled in OA 1102 of 1974 the commissioner did not see any coconut trees though it is the specific case of the applicant that it is planted with coconut trees and cashew trees. The commissioner has not mentioned the number of cashew trees in the properties and merely stated in the report that they are plantations. This would show that he prepared the report in a casual manner. The very fact that the commissioner did not see any coconut trees in the property lends considerable strength to the respondents' contention that the commissioner visited some other property. 8. This would show that he prepared the report in a casual manner. The very fact that the commissioner did not see any coconut trees in the property lends considerable strength to the respondents' contention that the commissioner visited some other property. 8. 0.26 R.9 CPC enables the Court to issue commission for local inspection whenever it finds that it is necessary for deciding any matter in dispute. The object of deputing a commissioner for local inspect-on is to gather evidence which from its peculiar nature can best be had from the spot itself. The evidence collected and reported by the commissioner will enable the Court to properly and correctly analyse it commission report will be helpful to clarify or explain any point which is left doubtful in evidence on record. 0.26 R.10(3) CPC enables the Court, if for any reason it is dissatisfied with the proceedings of the commissioner, to make further enquiry as it shall think fit. Under the sub-rule it is always open to the Court to analyse the commission report and to call for fresh report if it is found that the report and truth are poles apart. The Court has necessarily to consider the correctness or falsity of the commission report on the basis of materials and data available before it. Merely because one of the parties did not file objection to the commission report it cannot be said that the court is powerless to deal with it in a case coming under Sub-Rule (3). Not only the trial Court, but also the appellate Court can exercise this power. In a case where the Court finds that the commission report is totally unacceptable as it is not in accordance with true state of affairs, it can always attempt to get at the truth by deputing another commissioner and its power to act under sub-rule (3) cannot be minimised or overlooked on the ground that the contesting party has not filed any objection to it. It is always the endeavour of the court to arrive at the correct decision in a given case and whenever it is found that the commission report is unacceptable for any valid reason it can legitimately exercise its power under sub-rule (3). It is always the endeavour of the court to arrive at the correct decision in a given case and whenever it is found that the commission report is unacceptable for any valid reason it can legitimately exercise its power under sub-rule (3). It is very well within the competence of the appellate Court also to exercise in appropriate cases power under 0.26 R.10(3) to set aside the commission report and call for fresh report by deputing another commissioner. 9. As the evidence on record discloses that the commissioner has not correctly identified the properties in question, we hereby set aside Ext.C1 commission report and the order of the Tribunal and the case is remanded with a direction to depute another commissioner to identify the property with the survey plan and documents for submitting a fresh report before the Tribunal. After obtaining the report the Tribunal shall dispose of the Original Applications afresh in accordance with law. The order of the Tribunal in O. As. 899, 896 and 1102 of 1974 is hereby set aside and the case is remanded as aforesaid. The appeal stands allowed. There is no order as to costs.