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2001 DIGILAW 661 (KER)

Ammulakandiyil Ayichutty v. State of Kerala

2001-11-20

K.A.ABDUL GAFOOR, P.R.RAMAN

body2001
Judgment :- Abdul Gafoor, J. Certain land belonging to the appellants as scheduled to the application filed before the Tribunal below vested with Govt. in terms of Sec. 3(1) of the Kerala Private Forest (Vesting and Assignment) Act, 1971. There upon a dispute was raised and the application under Sec. 8 was filed before the Forest Tribunal, Palakkad seeking exemption from vesting under Sec. 3(2) of the Act. The Tribunal considered the matter with reference to the evidence and the pleadings and the application was dismissed. It was confirmed in appeal. There is finding in that judgment with respect to the claim of cultivation raised by the appellant. There is also a finding with reference to the absence of evidence as to whether the appellants did have in their possession cultivable land in excess of the ceiling area provided for in Act 1 of 1964. Later the appellants again attempted to get exemption from Sec. 3(1) invoking Sec. 3(3) and filed a fresh application. That was also dismissed. That dismissal is impugned in this Appeal. 2. The application originally filed by the appellants was under Sec. 8 raising a dispute whether any private forest or portion of there of had vested in Govt. In support of an application two grounds are available to the incumbent concerned, one under Sec. 3(2) and the other under Sec. 3(3) of the Act. First is in respect of the land held by the owner concerned under his personal cultivation and the second in respect of the land held under a valid registered document of title executed before the date of enforcement of the Act in respect of the property intended for cultivation by him. To invoke both of these grounds it was incumbent on the applicant to show that the applicant did not have land beyond the ceiling limit applicable in terms of Act 1 of 1964. The tribunal below considered the present application with reference to the ground in terms of Sec. 3(3) and found that there was no reason to accept the case of the appellants. The tribunal below also found that the issue had already been concluded by the decision of the tribunal in the earlier application admittedly filed by the appellants which had been confirmed by this Court in the appeal preferred by them. 3. The tribunal below also found that the issue had already been concluded by the decision of the tribunal in the earlier application admittedly filed by the appellants which had been confirmed by this Court in the appeal preferred by them. 3. These findings are assailed by the appellants contending that though the general principles of res-judicata is applicable to tribunals as well, that relating to constructive res-judicata as contained in explanation IV to Sec. 11 of the Code of Civil procedure 1908 cannot be made applicable. That is made applicable only in a duly constituted suit. Therefore the appellants were entitled to invoke the grounds available Under Sec. 3(2) and 3(3) separately to file applications under Sec. 8 one after another. Dismissal of earlier application shall not stand in the way of consideration of the second application with regard to the contention on merit. It is submitted that the personal cultivation as enjoined in Sec. 3(2) and the intention to cultivate as enjoined in Sec. 3(3) are different. Even though the claim of personal cultivation had been found against in the earlier application, the appellants are not precluded to agitate for exemption from vesting on the ground that they intended to cultivate the land in question. 4. We do not find any merit in these contentions. The principles of res judicata is applied by the courts in order to give a queetus to the dispute between the parties so that same parties shall not be vexed of successive litigations on the same subject matter or cause of action. There shall always be finality of resolution of disputes arising out of same cause. That is the principle behind res judicata. The principles as contained in Explanation IV to Sec. 11 CPC is also aimed at that general principle to give finality to resolution of disputes raised by the same parties. That means when an incumbent has a cause of action, touching same disputes whatever be the grounds available to get the relief incumbent ought to have raised all such grounds and pleaded all the reliefs touching the subject matter. Whatever not raised in a particular case pleading for a relief shall always be taken as forgone and has been settled between the parties as if such grounds have been raised. This is applicable to the tribunal as well. Whatever not raised in a particular case pleading for a relief shall always be taken as forgone and has been settled between the parties as if such grounds have been raised. This is applicable to the tribunal as well. The Supreme Court has, in the decision reported in The Direct Recruit Class-II Engineering Officers Association v. State of Maharashtra and others (AIR 1990 SC 1607) held that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have decided as independently or essentially connected with subject matter of the litigation and every matter coming into the legitimate part of the original action both in respect of the matters of claim and defence. Thus the principle of constructive res judicata underlying in Explanation IV to Sec. 11 of the Code of Civil Procedure 1908 was applied to writ cases. CPC is excluded for the purpose of writ applications. Even then the general principles of res judica is applied in writ proceedings as held by this Court in Kandankutty and others v. State of Kerala and others (AIR 1996 Kerala 337) and Byram Pestonji v. Union Bank of India (1992(1) KLT 368). Supreme Court also considered that aspect and applied the principles underlying Explanation IV of Sec. 11 of CPC namely the constructive res judicata as well to writ applications. In such circumstances it cannot be contended that in the matter of proceedings before the Forest Tribunal the principles of constructive res judicata underlying in Explanation IV to Sec. 11 of CPC cannot be applied. Thus when the appellants had agitated the case for exemption from vesting urging ground available under Sec. 3(2) in support of their application under Sec. 8, without raising the ground available under Sec. 3(3), which was very well available to them at that time, they are certainly barred to raise it in a fresh proceedings by reason of constructive res judicata. 5. 5. The tribunal had in para 24 of the impugned judgment considered the contention with respect to all these two grounds and held that "the allegation in colum (1) of the said petition at the end that applicants being agriculturists and having no other area to cultivate, intend to continue cultivation for their livelihood shows that the petition was filed claiming exemption under Sec. 3(3) as well." The tribunal also therefore found that otherwise there was no necessity to allege that the petitioners were holding the properties with an intention to cultivate. Thus in effect the contention raised in the earlier application itself encompassed within it all the ingredients of Sec. 3(3) as well. 6. More over in order to urge the ground under Sec. 3(2) there should have been personal cultivation of the property concerned. It is something more than an intention to cultivate. What is to be proved under Sec. 3(3) is an intention to cultivate . When the personal cultivation itself was found against in the earlier application there arise no separate situation to intention to cultivate. With reference to the contention regarding personal cultivation also the tribunal has delt with in detail and found that there was nothing on record to prove such an intention. More over the tribunal had also found that on both the grounds under Sec. 3(2) and 3(3), the petitioner had the liability to plead and prove that the appellants did have land in their ownership and possession not exceeding the ceiling area provided for in Act 1 of 1964. With respect to that aspect there was a conclusive finding in the earlier series of applications that "No certificate from the Tahsildar regarding the properties held by the petitioner and the extent of it or regarding the number of members in her family is produced." It is therefore not possible to say the extent of land that she will be entitled to retain under sec. 82 of the KLR Act. The claim had not been proved and was dismissed. This findings had become final when upheld by this Court and that is bending to the present case as well. Therefore even if it is found that the petitioner can maintain a separate application under Sec. 3(3) the petitioner cannot escape out of the clutches of this finding. 7. The claim had not been proved and was dismissed. This findings had become final when upheld by this Court and that is bending to the present case as well. Therefore even if it is found that the petitioner can maintain a separate application under Sec. 3(3) the petitioner cannot escape out of the clutches of this finding. 7. Added to this is a finding now entered by the tribunal with regard to the title. One among the three ingredients in terms of ground available under Sec. 3(3) is that the applicant should hold the land as owner "under a valid registered document of title executed before the appointed day". The case of the appellants was that they are the legal heirs on one kunhi who held the property under a partition deed. But no partition deed effecting partition among the legal heirs of kunhi has been produced before the tribunal and thereby the appellants did not prove their title. The burden to prove ownership based on a valid registered document of title executed before the appointed day and proof there of is essential to succeed on ground available under sec. 3(3). On that ground of title also the tribunal had found against the appellants. They were not able to assails these findings also. Appeal therefore fails and is dismissed.