M. T. Mathew v. State of Kerala — 1989 DIGILAW 237 (KER)

JUDGMENT P. Krishnamoorthy, J. 1. This appeal by the claimant arises out of a proceeding under S.8 of theKerala Private Forests (Vesting and Assignment) Act, 1971 (for short the Act).The petition was filed before the Forest Tribunal for a declaration that 8 acresof land (3 hectares 24 ares) in Survey No. 1742 of Sholayar Village has notvested in the Government as a private forest under the Act. The appellantclaimant alleged in the application that, he obtained the property fromMannarghat Moopil Sthanam under an oral lease of 1961, the rent being Re- 1per acre. He planted cardamom in 5 acres and got registration under theCardamom Act. He was doing fugitive cultivation in the balance 3 acres andthe entire property was being cultivated by him before 10th May 1971. Hefurther alleged that he had made preparations for the construction of a housein the property, that he is having land only below the ceiling area under theLand Reforms Act and that the above land will not come with in the M. P. P. F.Act and it is not a private forest. But on 25th July 1979 the forest officials cameand obstructed the claimant from carrying on agricultural operations andhence he filed the present application under S.8 of the Act for a declarationthat the land has not vested in the Government. 2. The State and the Custodian of Vested Forests opposed the applicationcontending that the property is part of Varadi Mala coming under the M.P.P.F.Act, that it has vested in the Government and that the claimant has no title orpossession over the same. They further contended that no cultivation wasraised in the land prior to 10th May 1971, that it is bounded on four sides withvested forests and contains forest trees like vatta, thani etc. aged 30 years. Onthese allegations they prayed for a dismissal of the application. 3. On these pleadings evidence was adduced by the parties and originally theapplication was allowed by the Forest Tribunal against which the State filed anappeal M.F. A. No. 50 of 1981 before this Court. By judgment, dated 23rdMarch 1983, this Court set aside the order of the Tribunal and remanded thecase with the following observations: "On a consideration of the evidence in the case, we feel that the respondenthas not satisfactorily established that the land had ceased to be private forestprior to 10th May 1971 to entitle him to claim the exemption. By judgment, dated 23rdMarch 1983, this Court set aside the order of the Tribunal and remanded thecase with the following observations: "On a consideration of the evidence in the case, we feel that the respondenthas not satisfactorily established that the land had ceased to be private forestprior to 10th May 1971 to entitle him to claim the exemption. The case shouldhave been founded on better evidence. In view of this view of ours, therespondent's counsel makes a request that an opportunity may be given to hisclient to call fresh evidence to prove satisfactorily his case that the land inquestion does not come within the purview of Act 26 of 1971. We feel that thisrequest can be granted in view of the indifference shown by the appellantsbefore the Tribunal." After remand, P.W. 2 was examined and the file relating to Ext. A-4 cardamomregistration certificate was produced as Ext.X-1. 4. The Forest Tribunal under the present order found that there is no validlease in favour of the claimant and that he has no title over the property. TheTribunal also came to the conclusion that there is no satisfactory evidence toprove that the land in question was cultivated before 10th May 1971 andconsequently held that the land has vested in the State under the Act. Theappeal is by the claimant against the above order. 5. Before this Court the appellant claimant challenged both the findings by theTribunal. The Tribunal came to the conclusion that the claimant has no title tothe property on the ground that no permission under S.3(1) of the M.P.P.F. Actwas obtained for granting a lease. It is an admitted fact that no permission wasobtained from the Collector under the above Act and the oral lease claimed bythe claimant is invalid. But learned counsel for the appellant claimantcontended that he is a tenant under S.7D of the Kerala Land Reforms Act andas such even though there is no permission for the granting of a lease underS.3 (1) of the M.P.P.F. Act, he will be a deemed tenant under S.7D of the LandReforms Act. S.7D of the Land Reforms Act reads as follows: "7D. Certain persons occupying private forests of unsurveyed lands to bedeemed tenants. S.7D of the Land Reforms Act reads as follows: "7D. Certain persons occupying private forests of unsurveyed lands to bedeemed tenants. -- Notwithstanding anything to the contrary contained in S.52or any other provision of the Transfer of Property Act, 1882, or any other law,or in any contract," custom or usage, or in any judgment, decree or order ofcourt, any person in occupation at the commencement of the Kerala LandReforms (Amendment) Act, 1969 of the land of another situate in Malabar, towhich the provisions of the Madras Preservation of Private Forests Act, 1949(XXVII of 1949), were applicable on the 11th day of April, 1955 or which wasunsurveyed on that date, shall be deemed to be a tenant as if he or hispredecessor in interest was continuously in occupation of such land for notless than two years within a period of twelve years immediately preceding the11th day of April, 1967." The scope of S.7D came up for consideration before the Supreme Court in K.M. Mathew v. Hamsa Haji 1987 (2) KLT 1 Construing the above section theSupreme Court held: "5. On a careful scrutiny of the aforesaid provisions, it become; abundantlyclear that the intention of the legislature was to gram protection only topersons whose possession had a lawful origin in the sense that they hadeither bona fide believed the lands to be Government's lands of which theycould later seek assignment or had taken the lands on lease from personswhom they bona fide believed to be competent to grant such leases or hadcome into possession with the intention of attorning to the lawful owners or onthe basis of arrangements like varam etc., which were only in the nature oflicences and fell short of a leasehold right. It was not within the contemplationof the legislature to confer the benefit of protection on persons who had wilfullytrespassed upon lands belonging to others and whose occupation wasunlawful in its origin. The expression 'in occupation' occurring in S.7D must beconstrued as meaning 'in lawful occupation'." It is clear from the above decision that in order to claim the benefit under S.7D,the occupation of the person shall be lawful. In this case, the claim of thepetitioner is that he got an oral lease of the property in 1961. Apart from theoral evidence of the claimant as P.W. 1, the other evidence adduced by theclaimant to prove the lease is Ext. In this case, the claim of thepetitioner is that he got an oral lease of the property in 1961. Apart from theoral evidence of the claimant as P.W. 1, the other evidence adduced by theclaimant to prove the lease is Ext. A1, a rent receipt said to have beenexecuted by the landlord. Ext. A1 is dated 25th June 1962. The case of theclaimant is that the rent fixed was Re. 1 per acre and the rent for the scheduleproperty will be Rs. 8 per annum. Ext. A1 shows that a payment of Rs. 32 wasmade by the claimant as rent which is for a period of four years. If the landwas taken on lease only in 1961, it is un understandable how he paid Rs. 32 in1962. His explanation for the payment of Rs. 32 is that he was required by thelandlord to pay arrears of rent payable by his former tenant also. It is not as ifa premium has been paid for the lease; but the receipt clearly shows that it isarrears of rent. It is too much to believe that a tenant would have paid thearrears of rent payable by the former tenant and in the circumstances it isdifficult to accept the rent receipt Ext. A1 as a genuine one. The landlord is notexamined in the case nor is there any other evidence to prove the oral leaseset up by him. In these circumstances, the case of oral lease of 1961 set up bythe appellant claimant cannot be accepted. If the oral lease is found againstthen there is no explanation for his possession, if at all he has any, and itcannot be said to be lawful. The payment of revenue under Exts. A-2 and A-3are in 1973, long after the date of vesting and no reliance can be placed onthem to prove the lease or possession. In the circumstances, we feel that he isnot entitled to claim protection under S.7D of the Land Reforms Act. 6. Even otherwise, the claimant has set up a definite oral lease of 1961. A-2 and A-3are in 1973, long after the date of vesting and no reliance can be placed onthem to prove the lease or possession. In the circumstances, we feel that he isnot entitled to claim protection under S.7D of the Land Reforms Act. 6. Even otherwise, the claimant has set up a definite oral lease of 1961. It iswell settled by a series of decisions of this Court that a person who has set upa specific lease and failed to establish that plea cannot turn round and contendthat he should be treated as a deemed tenant under the Land Reforms Act[see Kunhambu Nair v. Kunhammaru Amma 1973 KLT 1048 , Kaliyannan v.Narasimha Iyer 1974 KLT 286 , and Yesodha v. Sankunni 1984 KLT SN 98]. Inview of the above, we hold that the claimant is not a tenant coming under S.7Dof the Land Reforms Act. 7. The appellant contended that even if he is not a deemed tenant under S.7D,as a person in possession of the land he is entitled to maintain an applicationunder S.8 of the Act. But the learned Government Pleader contended that aperson merely in possession without any right to possession is not entitled tomaintain an application under the Act. It is not necessary to finally decide thatquestion, if the land in question will not come under any of the exemptionsmentioned in S.2(f) of the Act. Whoever be in possession, a private forest willvest in the Government unless the land comes within any of the exceptionsmentioned in S.2(f) of the Act. The claim of the appellant is that the land isexempt in view of the fact that it was cultivated "with cardamom and otherfugitive cultivation before 10th May 1971. 8. Now we shall consider the question as to whether the appellant has provedthe above fact. According to the appellant, out of the 8 acres of land 5 acreswas planted with cardamom before 10th May 1971 and the balance 2 acreswas cultivated with fugitive crops. For proving the fact of cardamom cultivationin 5 acres of land, reliance was placed on Ext. A-4 dated 30th June 1971, aregistration certificate issued by the Tahsildar under the Cardamom Act. InM.F.A. No. 50 of 1981, this Court held that the above certificate and the otherevidence produced by the applicant are not sufficient to prove that the landwas cultivated with cardamom before the appointed day. A-4 dated 30th June 1971, aregistration certificate issued by the Tahsildar under the Cardamom Act. InM.F.A. No. 50 of 1981, this Court held that the above certificate and the otherevidence produced by the applicant are not sufficient to prove that the landwas cultivated with cardamom before the appointed day. After remand, theclaimant summoned the file relating to Ext. A-4 which was marked as Ext. X-1series. P.W. 2 who was the Revenue Inspector at that time and who preparedExt. X-1(a) report in pursuance to which Ext. A-4 certificate was granted, wasalso examined. So, as rightly observed by the Tribunal, the correctness of Ext.A-4 will depend upon the evidence of P.W. 2 and his report Ext. X-1(a). TheTribunal has discussed the evidence of P.W. 2 and his two reports Exts.X-1(a) and X-1(b) and has come to the conclusion that they do not representthe true facts. It is clear from the evidence of P.W. 2 that he has not visited thepetition schedule property, but some other property on the representation ofthe claimant. The boundaries of the property as mentioned by him are differentfrom the petition schedule property. P.W. 2 has even given a report Ext. X-1(b)stating that the land in question does not come under the M.P.P.F. Act, whileadmittedly it will come under the above Act, Ext. X-1(a) shows that he wasshown an M.R. receipt dated 8th June 1965 which is not the one produced bythe appellant as Ext. A1. The Tribunal also suspected the correctness of Exts.X-1(a) and X-1(b) as they were prepared in an unduly hasty manner. He hasnot given in his report the age of the cardamom plants except saying that theymight have been planted in 1968-69. No data is available as to how he cameto that conclusion. No notice was issued by him to the forest authorities or theCardamom Board, as his visit was admittedly after 10th May 1971. P.W. 2 didnot find any cultivation in the surrounding areas whereas according to P.W. 1the surrounding areas were cultivated lands. On the basis of thesediscrepancies the Tribunal came to the conclusion that it is clear that Ext.X-1(a) report was prepared by P.W. 2 only on the representation made by theappellant and that he did not take care to verify the correct facts and theidentity of the property. It is also pertinent to note that P.W. 2 was undersuspension at the time of his examination for dereliction of duty. It is also pertinent to note that P.W. 2 was undersuspension at the time of his examination for dereliction of duty. In view of theabove, we agree with the finding of the Tribunal that no reliance can be placedon Ext. A-4 certificate which was admittedly issued after 10th May 1971 tocome to the conclusion that the land was planted with cardamom before thatdate. Regarding the balance 3 acres, there is absolutely no evidence to proveany sort of cultivation. In view of our finding that the land in question was notcultivated before 10th May 1971 it will not come under any of the exceptionsmentioned in S.2(f) of the Act and it will vest in the Government. In thecircumstances of the case, we do not think it necessary to resolve thecontroversy as to whether a person in possession without title is entitled tomaintain an application under S.8 of the Act. 9. Coming to the exemptions under S.3(2) or 3(3) of the Act, it is clear that theappellant is not entitled to claim exemption as he has no right to possessionover the land to become an owner, nor is he holding the land under a validregistered document. In the light of the above findings, we confirm the findingof the Tribunal that the land in question has vested in the Government as aprivate forest under the Act. In the result, we find no merit in the appeal and we dismiss the same, but, in the circumstances, without any order as to costs.