STATE OF KERALA v. THOMAS — 1987 DIGILAW 76 (KER)

Judgment :- 1. The petition is filed to review the judgment of this Court dated 13-1-1982 in M.F.A. 449 of 1979. The Forest Tribunal Calicut dismissed O.A. 24 of 1977. Against the order of the Tribunal the applicant filed M.F.A. 449 of 1979. This Court set aside the order of the Forest Tribunal and allowed the applicant's claim under S.3(2) of Act 26 of 1971. 2. The applicant's case is that he was in possession and cultivation of about 150 acres of land in Poyyatnala known as Paoniyamala as a sublessee of Kunhikrishnan Nambiar under agreement dated 16-3-1971, that the property belonged to Kottiyoor Devaswom and Kunhikrishnan Nambiar was the lessee under the Devaswom, that be purchased the rights of Kunhikrishnan Nambiar in respect of 75 acres from out of the above said 150 acres by registered document dated 7-5-1968 and that his brother Abraham purchased rights of Kunhikrishnan Nambiar in respect of the remaining land by another registered document on the same date. According to the applicant, the entire land belonging to him was included in the reserve forest as vested with the Government after demarcation by the Forest Department Authorities. Applicant contended that the property does not come within the purview of Act 26 of 1971. It is urged that under S.3(2) of the Act he can hold the land for cultivation upto the ceiling limits applicable under the Kerala Land Reforms Act. Another contention is that he is entitled to exemption under S.3(3) of the Act. 3. Respondents filed counter statement contending that the land in question forms part of Poyyamala and other Malavaram in Kapad village and that it is lying contiguous to the forest and that it is not at all possible to locate the property claimed by the applicant. It is contended by the respondents that the property is lying as a forest with valuable trees of natural growth and that there are no records in the village office to show that the applicant ever had obtained valid title over the 75 acres of land as claimed by him. 4. Tribunal held that the applicant had confined his claim for exemption of the property under S.3(3), eventhough in the application he claimed exemption under S.3(2) of the Act also. Applicants contention in the appeal is against the finding of the Tribunal that be is not entitled to exemption under S.3(3) of the Act. 4. Tribunal held that the applicant had confined his claim for exemption of the property under S.3(3), eventhough in the application he claimed exemption under S.3(2) of the Act also. Applicants contention in the appeal is against the finding of the Tribunal that be is not entitled to exemption under S.3(3) of the Act. In the appeal memorandum it is urged that the Tribunal went wrong in ignoring his claim of exemption under S.3(3) of the Act. Applicant has no case that he pressed before the Tribunal his claim under S.3(2) of the Act. Learned Government Pleader pointed out that this Court allowed the claim under S.3(2) of the Act obviously overlooking the fact that the applicant himself did not have such a claim before this Court in the M.F.A. Counsel submitted that that happened as material particulars were not adverted to before this Court by the counsel appearing for the State and therefore review of the judgment has become really necessary. 5. The judgment of this Court in MFA 449 of 1979 dated 13-1-1982 shows that the appeal was allowed and the applicant's claim under S.3(2) of the Act was accepted. It has been held that the Tribunal erred in declining the relief to the applicant at least to the extent of the property covered by Ext. P-9 under S.3(2) of the Act. Order of the Tribunal shows that the applicant had confined his claim to exemption under S.3(3) even though in the application exemption under S.3(2) of the Act is also pleaded. As in the appeal memorandum the applicant has not challenged the said finding of the Tribunal it is apparent that the relevant aspect of the matter was not highlighted by the respondents' counsel before this Court and that was the reason why this Court happened to pronounce the judgment on a point which was not urged by the applicant at all. 6. There is no evidence in the case to hold that the property was under the applicant's personal cultivation. Applicant examined as pw.1 admitted that the entire property covered by Ext. P-1 is a forest. Evidence is lacking to hold that the applicant was in direct possession of the property consequent to the agreement with Kunhikrishnan Nambiar. There is also no evidence to bold that be has been is possession of the property after Ext. P1. Applicant examined as pw.1 admitted that the entire property covered by Ext. P-1 is a forest. Evidence is lacking to hold that the applicant was in direct possession of the property consequent to the agreement with Kunhikrishnan Nambiar. There is also no evidence to bold that be has been is possession of the property after Ext. P1. The contention of the applicant that there was punam cultivation in the property can never be true as evidence is wholly lacking. As punam cultivation entails payment of revenue failure to produce revenue receipts is fatal to the applicant's case. There is no evidence of any punam cultivation at any time prior to 10-5-1971. pw.1 admitted that be has no document to prove that he had cultivated the 75 acres of land or any portion of it from 1961 to 1975. 7. Under S.3(2) it has to be established that the property is under the applicant's personal cultivation. Evidence is completely lacking to bold that the property was under his personal cultivation at any point of time. So long as that evidence is lacking exemption under S.3(2) of the Act cannot be claimed by the applicant. Even if it is assumed that the applicant did not concede to the fact that he confined his claim under S.3(3) of the Act it has to be held that he cannot claim exemption under S.3 (2) as there is total lack of evidence regarding any personal cultivation done by him in the property. 8. As already stated, applicant confined his relief under S.3(3) of the Act. The registered assignment deed in favour of the applicant is Ext. P1. The recital in Ext. P1 is that the entire 75 acres of property was punam kothukad. Except with regard to the claim of 12 acres covered by the no objection certificate Ext. P9 there is no evidence to prove the case of the applicant that it was a punam kothukad. Though there is provision that rent at the rate of Rs. 200/- per acre should be paid by the applicant from 1969 onwards there is no evidence of any payment of such rent. Apart from Ext. P1 there is no acceptable evidence to hold that there was any lessor-lessee relationship between the Devaswom and the applicant or between the Devaswom and Kunhikrishnan Nambiar. Ext. 200/- per acre should be paid by the applicant from 1969 onwards there is no evidence of any payment of such rent. Apart from Ext. P1 there is no acceptable evidence to hold that there was any lessor-lessee relationship between the Devaswom and the applicant or between the Devaswom and Kunhikrishnan Nambiar. Ext. PI itself shows that the property covered by that document and other properties were leased by Devaswom on 8-11-1961 to Nayar Service Society and there was an agreement between N. S. S. and Kunhikrishnan Nambiar in March 1966. That agreement was not produced before the Tribunal. It is also stated that Kunhikrishnan Nambiar had paid rent to N.S.S. and obtained receipts. Those receipts were also not produced. Lease in favour of N.S.S. was set aside by the Government. That would unmistakably show that Kunhikrishnan Nambiar did not get any interest in the property. As this property was governed by the MPPF Act and as there is no sanction by the District Collector for assignment it cannot get any validity. The resultant position is that Ext. P-1 is not a valid registered document of title. To invoke the benefit of S.3(3) of the Act it has to be affirmatively established that the applicant had valid registered document of title in his favour before the appointed day and it was intended for cultivation. As there is no valid registered document of title in favour of the applicant be cannot claim any benefit under S.3(3) of the Act. The Tribunal has rightly held so. 9. Counsel for the respondent submitted that S.8C of Act 26 of 1971 is not attracted to the facts of this case. The submission is that the prior judgment was not based on any concession by counsel. It is also submitted that grounds for review of the prior judgment are not made out. 10. We have found that the only basis for the appellate judgment on the prior occasion was that the respondent was entitled to the benefit of S.3 (2) of the Act. The grounds urged in the memorandum of appeal related to the refusal of the Tribunal to grant exemption under S.3(3) of Act 26 of 1971. No grounds were urged regarding the rejection of the claim for exemption under S.3(2) of the Act. The grounds urged in the memorandum of appeal related to the refusal of the Tribunal to grant exemption under S.3(3) of Act 26 of 1971. No grounds were urged regarding the rejection of the claim for exemption under S.3(2) of the Act. Normally, counsel for the State and Custodian would have pointed out this fact to this Court and would have made the request not to entertain or consider any ground not specifically raised in the memorandum of appeal. The facts and circumstances which justify exemption under these two sub-sections 3(2) and 3(3) are substantially different. In the former, the applicant has to prove that the land was held under personal cultivation; whereas in the latter, what the applicant has to prove are that the land was held under a valid registered document of title, and was intended for cultivation. In either case the applicant has to prove, in addition, that be was not holding lands in excess of the ceiling area applicable to him under Chap.3 of the Kerala Land Reforms Act. It is elementary that a person who claims exemption under either of these subsections has to affirmatively prove by positive evidence that he fulfils all the requirements of the provision. A mere assertion by him will not be sufficient substitute for affirmative evidence of positive proof. These two are important aspects, which counsel for the State and Custodian omitted to urge before this Court on the prior occasion. 11. We have now to consider whether omission by counsel to urge an important point could amount to concession falling within S.8C of Act 26 of 1971 and justify invocation of the power of review. It appears to us that the point sought to be raised by counsel for the respondent are concluded against him by a catena of decisions. Two of the points decided by the Supreme Court in M.M.B. Catholicos v. F. P. Athanasius. AIR 1954 SC 526, were: whether a review can be entertained in a case where the judgment bad not effectively dealt with and determined the important issue in the case on which depended the title of the plaintiffs and the maintainability of the suit; and, whether a decision against the party on matters which need not come within the issues on which parties went to trial would justify the review of the judgment. On the former point it was held, that "the majority judgments, therefore, are defective on the face of them in that they did not effectively deal with and determine an important issue in the case on which depends the title of the plaintiffs and 'the maintainability of the suit. This, in our opinion, is certainly an error apparent on the face of the record". On the latter point it was held, that "to decide against a party on matters which do not come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record. It is futile to speculate as to the effect these matters bad on the minds of the judges in comparison with the effect of the other points." 12. As we have seen, the question whether the applicant was entitled to exemption under S.3(2) of Act 26 of 1971 was not a matter which arose for determination in the appeal, if we go by the memorandum of appeal. We have not been told that the applicant-appellant sought permission to urge additional grounds at the time when the appeal was being argued. The affirmative decision in favour of the applicant-appellant that be was entitled to exemption under S.3(2) of Act 26 of 1971 did, therefore, clearly amount to an error apparent on the face of the record justifying invocation of the power of review. Similarly, the question whether the applicant-appellant was an owner holding the land under his personal cultivation as would come within the ceiling limits applicable to him under the Kerala Land Reforms Act,1 of 1964, was an important matter which ought to have been considered. The affidavit accompanying the review petition discloses that the applicant-appellant himself bad filed a return before the Taluk Land Board claiming that the same area, as was the subject matter of his application under S.8 of Act 26 of 1971. was a private forest. It appears to us that this was an important aspect which ought to have been considered. Any concession by counsel for the State and the Custodian, whether expressly made or impliedly to be inferred would definitely attract the provisions of S.8C of Act 26 of 1971. 13. was a private forest. It appears to us that this was an important aspect which ought to have been considered. Any concession by counsel for the State and the Custodian, whether expressly made or impliedly to be inferred would definitely attract the provisions of S.8C of Act 26 of 1971. 13. Another aspect of the matter which has to be considered is the extent to which the court is entitled to interfere with the judgment passed on consent of parties. In Sadhosaran Rai v. Anant Rai, AIR. 1923 Patna 483, Das J., speaking on behalf of a Division Bench stated: "where the question is whether there was a consent in fact, there is power in the Court to investigate the matter in a properly constituted application and to set aside the decree if it is satisfied that a party never in fact consented to it but that the Court was induced to pass the decree on the fraudulent representation made to it that the party has consented to it, but that where there is a consent in fact, that is to say, where the parties have filed a compromise petition and they admit that they have filed it but one of the parties alleges that his consent was produced by fraud, the court cannot investigate the matter either in review or in the exercise of its inherent power, and that the only remedy of the party is to institute a suit to set aside the decree on the ground of fraud. In other words, the factum of the consent can be investigated in summary proceedings but the reality of the consent cannot be so investigated". 14. These observations were followed in Sheodhar prasad Singh v. Ramdeo prasad Singh. AIR. 1934 Pat 229 and Chuturprasad Sah v. Mt Bishunikuer. AIR. 1943 Pat 13. A similar view was taken by the Calcutta High Court in Peary Choudhury v. Sonoorydas. AIR 1915 Cal. 622, and the Bombay High Court in Basan Gouda v. Churchigiri Gouda (1910) ILR 34 Bom. 488 and Keshav Ramkrishna v. Subba Manga. AIR 1939 Bom 490. The Madhya Bharat High Court also took the same view in Hamira Subba v. Lalu Ganga. AIR 1954 Madh Bha 81. 15. In Govinda Chettiyar v. Varadappa, AIR. 1940 Mad. AIR 1915 Cal. 622, and the Bombay High Court in Basan Gouda v. Churchigiri Gouda (1910) ILR 34 Bom. 488 and Keshav Ramkrishna v. Subba Manga. AIR 1939 Bom 490. The Madhya Bharat High Court also took the same view in Hamira Subba v. Lalu Ganga. AIR 1954 Madh Bha 81. 15. In Govinda Chettiyar v. Varadappa, AIR. 1940 Mad. 17, Patanjali Sastri J., as he then was, held, that if "Owing to the misapprehension, the counsel for the respondents did not urge all his arguments in support of the finding recorded in favour of his client by first Court and the judge was led thereby to form an erroneous impression that he had no arguments to meet the points raised by the appellant's counsel", that was good enough ground to invoke the power of review Ramaswami J., in Ramaswami Padayachi v Shanmugha Padayachi, 1959 (2) MLJ. 201, following Moran Mar Basselios Catholicos v. Athansius, AIR. 1954 SC 526, held that an excusable failure to bring to the notice of the Court the relevant material or the mistake of counsel would be a "sufficient cause", justifying review of the judgment, under 0.47 R.1 of the Code of Civil Procedure. In Narasimha Rao v. Andhra Bank Ltd. MR. 1957 Andhra Pradesh 773 and Bank of Bihar v. Mahabir Lal, AIR. 1964 SC. 377, it was held that if the Court proceeded on an erroneous impression about the import of the word "concession" made by counsel, the only course open for the aggrieved party is to file an application for review of the judgment. 16. We do not propose to multiply authorities in this regard. We are satisfied that in so far as the earlier appellate judgment was rendered on a point which did not really arise in the appeal and on the assumption that the circumstances justifying exemption of the land of the applicant under S.3(2) of Act 26 of 1971 were not seriously disputed, the State and the Custodian of Vested Forests are right in invoking the jurisdiction of this Court under S.8 C of Act 26 of 1971. 17. As rightly held by the Tribunal, the applicant has not substantiated his claim of exemption under S.3(3) of the Act. 17. As rightly held by the Tribunal, the applicant has not substantiated his claim of exemption under S.3(3) of the Act. As the claim under S.3(2) of the Act was not pressed before the Tribunal and as the applicant confined his claim under S.3(3) it is not at all possible to allow the relief under S.3(2) of the Act. In view of the above position the judgment of this Court has to be reviewed and we do so. The Tribunal was perfectly justified in dismissing the original application. We find hardly any reason to allow the appeal. In the result the appeal is dismissed. There is no order as to costs.