State of Kerala v. C. J. Alexander — 1992 DIGILAW 427 (KER)

JUDGMENT K.S. Paripoornan, J. 1. The State of Kerala and the Custodian of Vested Forests, Kozhikode have filed this appeal against the order passed by the Forest Tribunal, Kozhikode in O. A. No. 232 of 1981 dated 20th October 1984. The matter arises under the Kerala Private Forests (Vesting and Assignment) Act, 1971. The said Act came into force on 10th May 1971. The respondent herein was the petitioner in O. A. No. 232 of 1981, He filed an application under S.8 of the Act, for settlement of the dispute, and claimed relief in respect of five acres of land in Sy. No. 1226 of Muppeyanad Village of Vythiri Taluk, on the ground that the same has been brought under cultivation prior to the appointed day. In the application, it was stated that tree growths are available in the area and that there was a small shed, wherein the applicant is residing. He also relied on Pattayam No. 953 of 1978 issued by the Land Tribunal, Sultan Battery. His plea was that the area in dispute was taken on oral lease from one K. V. Gopalan prior to 1964 and it was planted mainly with coffee and other agricultural crops. Due to pest, drought, etc., a good number of plants were destroyed. The area in dispute is in his occupation. On 2nd September 1981, the forest officials obstructed the applicant in his agricultural operations and uprooted some coffee plants and destroyed the shed. According to him, the area in dispute is not a private forest and it did not vest in the Government. 2. The appellants denied the allegations contained in the application and submitted that the total extent of the vested forest, comprised in Sy. Nos. 1186, 1187, 1208, 1215 and 1226 is 2200 hectares. The said vested forest does not contain any cultivated area. The department exempted all developed and cultivated areas. There are no boundary marks to identity the five acres of land claimed by the applicant. The vested forest area is a thick forest, having spontaneous tree growth. No portion of this area was cultivated by any person. The claim that there are shade trees was denied. The jungle trees and spontaneous trees available point out that it was a natural forest. There was no shed, as contended by the applicant. The pattayam relied on is not valid and binding on the appellants. No portion of this area was cultivated by any person. The claim that there are shade trees was denied. The jungle trees and spontaneous trees available point out that it was a natural forest. There was no shed, as contended by the applicant. The pattayam relied on is not valid and binding on the appellants. The private forest vested in the Government is Government property. The lease in favour of the applicant was denied and was contended to be invalid. 3. The Forest Tribunal, Kozhikode posed the question as to whether the applicant is entitled to claim relief under S.3(2) of the Act or not. It was made clear that the applicant was not entitled to any relief under S.3(3) of the Act. The Forest Tribunal further posed the question that the applicant has to satisfy the Tribunal that he is the owner as denied in the Act and that he had brought the land under cultivation prior to the appointed day. After referring to the evidence of PW.1, Ext. P1 patta and Exts. P2 to 5 revenue receipts, the Tribunal held that the appellants had not challenged Ext. P1 by way of appeal or in any other appropriate proceedings, that Ext. P-1 has become final and so, the applicant before it is an owner. The Tribunal further adverted to the evidence of P. W. 1, Ext. P-6 complaint filed by the applicant before the Village Officer, and the evidence of PW. 2, and held that the land was brought under cultivation prior to the appointed day. It was observed that the report of the Commissioner specifying the age of the coffee plants is not a circumstance in favour of the applicant. In fact, the Commissioner's report showed that the coffee plants were aged three years and eight years. In the above view, the application was allowed and it was declared that the five acres of land in Sy. No. 1226 of Muppeyanad Village is not liable to be vested in the Government. It is from the aforesaid decision of the Forest Tribunal dated 20th October 1984, the State and the Custodian of Vested Forests have come up in appeal. 4. We heard Senior Government Pleader Mr. V. Bhaskara Menon, for the appellants and M/s C. K. Sivasankara Panicker and Radhakrishnan, counsel for the respondent. We also perused through the records. 5. It is from the aforesaid decision of the Forest Tribunal dated 20th October 1984, the State and the Custodian of Vested Forests have come up in appeal. 4. We heard Senior Government Pleader Mr. V. Bhaskara Menon, for the appellants and M/s C. K. Sivasankara Panicker and Radhakrishnan, counsel for the respondent. We also perused through the records. 5. Learned Government Pleader contended that the approach and conclusion of the Forest Tribunal to hold that the applicant before it is the owner, are patently wrong. It was further contended that there is no positive evidence nor a finding that the applicant before it had personally cultivated the property prior to the appointed day. It is due to the erroneous approach and faulty reasoning, findings have been entered against the appellants purely based on surmises. On the other hand, counsel for the respondent submitted that the grant of pattayam in favour of the applicant is perilously conclusive to hold that he is the owner and even discarding the Commissioner's report, the officials of the Forest Department were not examined to deny the averment of the applicant that the trees and the shed were destroyed and the evidence adduced by PW. 2 and Ext. P-6 are sufficient to hold that the disputed land was under cultivation prior to the appointed day. 6. On hearing the rival pleas urged before us, we are of the view that the plea of the appellants should prevail. As held by a bench of this Court in M. F. A. No. 403 of 1980 [Mani v. State or Kerala and another (1986 KLN case notes page 25 case No. 29)], the certificate of purchase issued under the Kerala Land Reforms Act without issue of individual notice to the concerned person cannot be said to be conclusive. In this case, the private forest vested in the State as early as 10th May 1971. Ext. P1 purchase certificate was issued in proceedings evidenced by Ext. P-1 on 13th November 1978. Ext. P-1 is only a certificate of purchase. The parent order has not been produced. There is no material to show that individual notice was served on the Government, in whom the forest had vested long ago. Ext. P1 purchase certificate was issued in proceedings evidenced by Ext. P-1 on 13th November 1978. Ext. P-1 is only a certificate of purchase. The parent order has not been produced. There is no material to show that individual notice was served on the Government, in whom the forest had vested long ago. So, in the light of the Bench decision aforesaid, the certificate of purchase issued under the Kerala Land Reforms Act will have no bearing on the right of the Government, in whom the land in question had vested under S.3(1) of the Act as early as 10th May 1971. The fact that the appellants did not file an appeal against Ext. P-1 is of no consequence. The Forest Tribunal was in error in holding that Ext. P-1 is binding on the appellants or that the failure to file an appeal against Ext. P-1 has got any consequence. Ext. P-1 will not bind the appellants. Similarly, Exts. P-2 to 5 revenue receipts are of no consequence. Acceptance of tax for the land by the Village Officer is not relevant [State of Kerala v. T. V. Chandran ( 1980 KLT 838 )]. 7. For the above reasons, the finding of the Forest Tribunal that the respondent is the owner is patently wrong. It deserves to be set aside. We hereby do so. The next important question to be considered is whether the land has been brought under cultivation prior to the appointed day. It is true that PW. 1, the brother of the applicant, gave evidence that lemon grass was cultivated in the property in 1964. The applicant filed Ext. P-6 complaint before the Village Officer stating that the officers of the Forest Department destroyed coffee, cardamom, etc., which were aged ten years. The Village Officer was examined as PW. 2, who proved Ext, P-6. As against this, the Commissioner appointed by the Court noticed that the coffee plants were aged three and eight years old. The Commissioner also noticed only jungle wood trees about 30 to 40 years old and 15 to 25 years old. The fragile evidence of PWs 1 and 2 is offset by the Commissioner's report - Ext. C1. There is no precise and definite material to hold that the land was brought under cultivation prior to the appointed day. The Commissioner also noticed only jungle wood trees about 30 to 40 years old and 15 to 25 years old. The fragile evidence of PWs 1 and 2 is offset by the Commissioner's report - Ext. C1. There is no precise and definite material to hold that the land was brought under cultivation prior to the appointed day. In order to get the benefit of S.3(2), the applicant should prove that he is the owner and further, there was personal cultivation in the land prior to the appointed day. The burden is on the applicant to prove the said facts. The said fact should be proved on solid and definite evidence. A finding on such facts cannot be entered on shaky and dubious materials. Mere statement by the party cannot form the basis for entering a finding in his favour. These propositions are well settled by the decisions of this Court in M. F. A. No. 272 of 1977, dated 13th July 1979, M. F. A. No. 248 of 1977, dated 26th September 1979, Chandran's case ( 1980 KLT 838 ), State of Kerala v. Kunhiraman ( 1990 (1) KLT 382 ), etc. 8. Tested by the touch-stones laid down in the above decisions, we have to hold that there is a total paucity of evidence in this case, to hold that the land was brought under the personal cultivation of the applicant prior to the appointed day. On the other hand, the tree growth of spontaneous origin noticed by the Commissioner in the wooden area would go to show that the disputed forest is a vested forest and the Bench decision in M. F. A. No. 398 of 1978 is relevant in this context. We hold that there was no reliable or acceptable, or positive material before the Tribunal to hold that the land was brought under cultivation prior to the appointed day. The finding to the contra entered by the Forest Tribunal is manifestly wrong and unjust. We vacate the said finding. 9. For the above reasons, we hold that the claimant - respondent has failed to prove that he is the owner and that the disputed land was brought under cultivation before the appointed day, in order to avail the benefit of S.3(2) of the Act. The Forest Tribunal was patently in error in holding to the contra. 9. For the above reasons, we hold that the claimant - respondent has failed to prove that he is the owner and that the disputed land was brought under cultivation before the appointed day, in order to avail the benefit of S.3(2) of the Act. The Forest Tribunal was patently in error in holding to the contra. We, therefore, set aside the order of the Forest Tribunal, Kozhikode dated 20th October 1984 rendered in O. A. No. 232 of 1981. This appeal is allowed.