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2004 DIGILAW 175 (SC)

APPUKKUTTAN v. State Of Kerala

2004-02-05

D.M.DHARMADHIKARI, SHIVARAJ V.PATIL

body2004
Order 1. The order made by the Division Bench of the High Court in MFA No. 379 of 1987 affirming the order made by the Forest Tribunal, Palghat in OA a No. 137 of 1976 is under challenge in this appeal. 2. The appellants applied to the Forest Tribunal under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for brevity "the Act"). The Tribunal accepted the claim made by the appellants. The respondents challenged the order of the Tribunal before the High Court. The High Court set aside the order and remanded the case to the Tribunal for b fresh consideration. On remand, the Tribunal found that the appellants were not entitled to claim made under Section 8 of the Act. The Tribunal held that the appellants failed to establish their title over the land in question; failed to establish their personal cultivation on 10-5-1971, that is, the appointed day under the Act; and they failed to establish that the total holding of the appellants, including the land in question, did not exceed the ceiling limit C prescribed under the Kerala Reforms Act. In that view the application filed by the appellants was dismissed. Aggrieved by and not satisfied with the order of the Forest Tribunal, the appellants filed MFA No. 379 of 1987 questioning the validity and correctness of the order passed by the Tribunal. The High Court took up only one point for consideration, namely, whether the total holding was not in excess of the ceiling limit prescribed under the d Kerala Reforms Act and recorded a finding that the appellants failed to establish that the total holding did not exceed the ceiling limit. In that view, the High Court thought it unnecessary to consider the other two questions, namely, as to the title and as to the personal cultivation of the appellants over the land on the appointed day. 3. In view of the conclusion arrived at on Point 1, the High Court dismissed the appeal concurring with the finding recorded by the Forest Tribunal. 4. The learned Senior Counsel for the appellants before us contended that although the appellants could not produce the documents of title before the Tribunal they produced them before the High Court. 3. In view of the conclusion arrived at on Point 1, the High Court dismissed the appeal concurring with the finding recorded by the Forest Tribunal. 4. The learned Senior Counsel for the appellants before us contended that although the appellants could not produce the documents of title before the Tribunal they produced them before the High Court. But, unfortunately, the High Court did not consider all the points; the High Court committed an error f in reaching the conclusion that the appellants failed to establish that the total holding did not exceed the ceiling area; there was no good reason for the High Court to reject the evidence of PW 2 P.G. Ranganathan, when there was no cross-examination on material points over as to the total holding within the ceiling limit or as to the personal cultivation. The learned counsel further contended that the Tribunal as well as the High Court were not right in g expecting to prove negative fact, namely, that the appellants holding did not exceed ceiling limit. Learned counsel added that although on the appointed day, the appellants were not the owners the benefit of exclusion otherwise available to the original owners was equally available to the appellants. 5. Per contra, learned counsel for the respondent State made submissions supporting the impugned order. She pointed out that apart from the oraltestimony of P.G. Ranganathan, PW 2, there is no other evidence otherwise placed by the appellants before the Tribunal; it is not a case where the documentary evidence is not available. The appellants ought to have produced the revenue record or other documents to show as to their holding and their personal cultivation over the land in question. According to the learned counsel, the finding of fact recorded by the Tribunal was rightly sustained by the High Court in regard to the ceiling area. She also further submitted that even otherwise the High Court was not justified in not answering the other two points. 6. We have considered the above submissions made on behalf of the parties. It is a fact that the appellants purchased the land in question only in 1974, that is, much subsequent to the appointed day, that is, 10-5-1971. No documentary evidence was placed before the Tribunal or before the High Court to show the personal cultivation of the appellants over the land in question. It is a fact that the appellants purchased the land in question only in 1974, that is, much subsequent to the appointed day, that is, 10-5-1971. No documentary evidence was placed before the Tribunal or before the High Court to show the personal cultivation of the appellants over the land in question. Similarly, no documentary evidence was placed on record to show that the holding of the appellants or their vendor was within the ceiling limit. 7. No doubt, their title deed was produced before the High Court. In a case where the best evidence that could be produced, has not been produced, namely, the documentary evidence was not produced by the appellants in support of their claim and the Tribunal did not accept the mere oral testimony of P.G. Ranganathan, PW 2, who being the vendor supported the case of the appellants to some extent. Although the High Court did not examine as to the personal cultivation of the appellants over the land and also as to the title with regard to the property, the finding recorded by the Tribunal on the personal cultivation cannot be found fault with and that the High Court relied merely on the oral testimony of P.G. Ranganathan in the absence of other material to support the case. This being the position, we find it difficult to accept the case of the appellants. Hence, we find no merit in the appeal. It is accordingly dismissed. No costs.