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2017 DIGILAW 953 (KER)

Antony v. Kerala State Government

2017-06-28

K.RAMAKRISHNAN

body2017
JUDGMENT K. Ramakrishnan, J. 1. Plaintiff in O.S.130/94 on the file of the Munsiff Court, Alathur, is the appellant herein. The suit was one filed by the plaintiff for declaration and permanent injunction with following allegations. 2. The plaint schedule properties belonged to in jemn to Poomullimana. The said properties along with other properties were entrusted with Kanakkannur Kandakathil veedu as per Kanam charthu and the properties were partitioned as per partition deed No.2379/1933 of Sub Registrar's Office, Alathur and the plaint schedule properties were allotted to the share of Bhaskaran Nair, S/o. Kamalakshyamma and others and they were in possession and enjoyment of the same. While so the forest authorities had taken possession of the property alloted to Bhaskaran Nair and others in the partition deed as vested forest under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter called 'the Act') as Private Forest. Said Bhaskaran Nair and others filed O.A.106/85 before the Forest Tribunal, Palakkad for resumption of those properties on the ground that it was not a private forest and the said application was allowed and it was held that it was not a private forest vested under the Act and even if it is a private forest, they were entitled to get exemption under Section 3 of the Act and directed the forest authorities to return the property. Though State filed M.F.A. 522/87 before this court, the same was dismissed by this court on 25.09.87. Thereafter the Government had restored 2.54 acres in survey No.43 of Kazhani Amsom, Pattura Desom of Alathur Thaluk as per letter No.2398/E2/92F FWLD 13.03.992 and Bhaskaran Nair and others were in possession of the same. As per the orders of the forest tribunal, 3.67 acres of land was exempted and Government in their letter mentioned above stated that only so much land had been taken by them and the remaining land if any would be with the said Bhaskaran Nair and others and this property is shown as plaint-A schedule property. Thus Bhaskaran Nair and others were in possession of 3.67 acres of land. While so, they assigned that property to the plaintiff as per sale deed No.195/94 of Alathur Sub Registrar's Office and he has been in possession and enjoyment of the same. Thus Bhaskaran Nair and others were in possession of 3.67 acres of land. While so, they assigned that property to the plaintiff as per sale deed No.195/94 of Alathur Sub Registrar's Office and he has been in possession and enjoyment of the same. The present survey numbers and boundaries were shown in the document and the property ordered in favour of Bhaskaran Nair and others as per the order of the forest tribunal was assigned to the plaintiff and he is in possession and enjoyment of the same by putting up boundaries by way of fencing on the east, south and north. He had for the purpose planting coconut saplings, dug pits. The plaintiff and his brother are having properties near the plaint schedule property and it is being managed by a manager. 3. While so on 27.07.94, third defendant and his staff trespassed into the plaint schedule property and removed certain coconut saplings. While that was questioned, they told that plaintiff had no right over the same and it was forest land. In fact the forest authorities had no right over the same. The property released by the forest department as per the orders of the forest tribunal as land taken by them is shown as plaint-A schedule and the remaining property in the possession of his predecessor and latler assigned is shown as plaint-B schedule. The defendants were trying to trespass into the plaint-B schedule property and they had no right over the same. It was not part of forest land as well. Since the relief claimed was emergent in nature and he prayed for dispensing with notice to the first defendant/government under whom defendants 2 and 3 were working under Section 80 of the Code of Civil procedure. Since the defendants were making some claims, the plaintiff filed the above suit for declaration that plaint-A and B schedule properties were not forest land and it was a land exempted and directed to be returned by the forest tribunal as per order in O.A.106/85 to Bhaskaran Nair and others and it was in the possession of Bhaskaran Nair and others and thereafter with the plaintiff on the basis of sale deed and for injunction restraining the defendants and their men from trespassing into the plaint schedule property causing any obstruction to the peaceful possession and enjoyment of the plaintiff. 4. 4. The defendants filed written statement contending as follows: The suit is not maintainable and it is barred by virtue of Section 13 read with Section 8 of the Kerala Private Forest (Vesting and Assignment) Act (Act 26 of 1971) and it is bad for want of notice under Section 80 of the Code of Civil Procedure. They admitted that the properties scheduled to the plaint originally belonged in Jemn to Poomullimana and plaintiff were put to strict proof regarding the averment that Bhaskaran Nair and others, who were the predecessors in interest of the plaintiff obtained property as per registered partition deed No.2379/1933 of Sub Registrar's Office, Alathur and they were in possession of the same. They denied the allegation that the entire plaint schedule properties were got exempted by said Bhaskaran Nair and others as per proceedings in O.A.106/85 of Forest Tribunal, Palakkad. They had admitted that said Bhaskaran Nair and three others filed O.A.106/85, claiming exemption of an extent of 3.67 acres in survey No.43 of Kazhani Amsom, Padur Desom of Alathur Thaluk from the purview of the Act and forest tribunal by judgment dated 05.02.87 allowed the application. They had admitted that the property comprised in Survey No.43 of Kazhany amsom alone was the subject matter in O.A.106/85 and the said property alone was restored to the applicants therein. The other properties mentioned in the plaint schedule property were not at any point of time the subject matter in O.A.106/85 of Forest Tribunal, Palakkad. 5. In fact the other properties mentioned in the plaint were vested in the Government under Section 3 of the Act and form part of Malavaram known as Kadambidy Forest bit-1 having an extent of 19.50 hectors. The entire properties were duly surveyed and demarcated by the forest department as per the provisions of the Act and custodian of vested forest had duly notified its details as provided under Rule 2A of Kerala Private Forest (Vesting and Assignment) Rules. So neither the plaintiff nor his predecessors could claim any title or possession over the properties described in the plaint schedule property, except the property comprised in survey No.43 of Kazhani Amsom, Kavassery-II village. None of the predecessor of the plaintiff filed any application in respect of the other land for getting exemption under Section 8 of the Act. So neither the plaintiff nor his predecessors could claim any title or possession over the properties described in the plaint schedule property, except the property comprised in survey No.43 of Kazhani Amsom, Kavassery-II village. None of the predecessor of the plaintiff filed any application in respect of the other land for getting exemption under Section 8 of the Act. The assignment if any made in favour of the plaintiff was not binding on the defendants or the State. The predecessors in interest of the plaintiff could not have entrusted the property other than in Survey No.43 which alone was subject matter in the O.A. mentioned above. When the plaintiff made an attempt to encroach into the properties vested in the Government, other than one comprised in Survey No.43 of Kazhani Amsom on the basis of the registered assignment deed in his favour that was objected by the officials of the third defendant and a crime was registered as O.R.36/94 of Alathur Range against the plaintiff. The allegations mentioned in Para 4 of the plaint were imaginary and against facts. No damage had been caused in any portion of the property belonging to the plaintiff. The attempt of the plaintiff was only to encroach into the property vested to the Government and in possession of the custodian of vested forest under the above Act. The plaintiff had suppressed material facts and came to court with unclean hands and he was not entitled to get the relief claimed. They had further contended that the suit was bad for want of notice under Section 80 of the Code of Civil Procedure and they prayed for dismissal of the suit. 6. On the basis of the pleadings, the following issues were framed by the court below for consideration: i. Whether the suit is maintainable? ii. Whether the jurisdiction of this Court is barred under section 13 read with section 8 of the Kerala Private Forest (Vesting & Assignment) Act? iii. Whether the entire plaint schedule properties were exempted by the Forest Tribunal in OA.No.106/1985? iv. Whether the plaintiff is entitled for any other relief as sought for in the plaint? v. Relief and costs? 7. In order to prove the case of the plaintiff, Pws 1 and 2 were examined and Exts.A1 to A3, A3(a) and C1 to C4 were marked on the side of the plaintiff. iv. Whether the plaintiff is entitled for any other relief as sought for in the plaint? v. Relief and costs? 7. In order to prove the case of the plaintiff, Pws 1 and 2 were examined and Exts.A1 to A3, A3(a) and C1 to C4 were marked on the side of the plaintiff. No oral or documentary evidence adduced on the side of the defendant. After considering the evidence on record, the trial court found that the suit was not maintainable in view of the bar under section 13 read with section 8 of the Kerala Private Forest (Vesting & Assignment) Act and further found that the plaintiff had failed to prove that the entire plaint schedule property claimed now was the exempted property as per Ext.A2 judgment of the Forest Tribunal and plaintiff was not entitled to get the relief claimed and dismissed the suit. Aggrieved by the same, the appellant herein filed AS.No.178/1996 before District Court, Palakkad and the District Judge by the impugned judgment concurred with the findings of the court below on the question of maintainability and identity of the property and dismissed the appeal. Aggrieved by the same, the present second appeal has been preferred by the appellant. 8. When the second appeal was admitted, the substantial questions of law raised in the Appeal Memorandum had been accepted as substantial question of law arose for consideration which reads as follows: a. Is the finding of the lower appellate court that the suit is not maintainable on account of the provisions of Kerala Private Forest (Vesting & Assignment) Act sustainable in law? b. Has not the lower appellate court acted illegally in readily inferring the ouster of jurisdiction of the civil court? c. Is it legal and proper for the civil court to presume that the suit property or a portion thereof is vested forest in the absence of the details and records relating to the alleged notification issued under Rule 2A of the Kerala Private Forest (Vesting & Assignment) Rules? d. Whether on the facts and circumstances of the case the defendants have the right to disturb the settled possession or alleged "encroachment" of the plaintiff without following the procedure prescribed by law? e. Whether the judgment and decree of the lower appellate court is sustainable in law? 9. Heard Sri. P.B. Krishnan, representing Sri. d. Whether on the facts and circumstances of the case the defendants have the right to disturb the settled possession or alleged "encroachment" of the plaintiff without following the procedure prescribed by law? e. Whether the judgment and decree of the lower appellate court is sustainable in law? 9. Heard Sri. P.B. Krishnan, representing Sri. S.V. Balakrishna Iyer, senior counsel appearing for the appellant and Sri. M.L. Sajeev, learned Special Government Pleader appearing for Revenue. 10. The learned counsel appearing for the appellant submitted that as per Ext.A2 judgment of the Forest Tribunal, Palakkad, the predecessors in interest of the plaintiff namely Bhaskaran Nair and others got exempted 3.97 acres of land in Sy.No.43 of Kazhani village within the boundaries shown therein and also found that the property was not a private forest liable to be vested under the Act and as per Ext.A3 letter dated 19.10.1992, the Government had returned 2.54 acres of land as the land taken by them comprised in Sy.No.43 of Kazhani amsom, Padur desom and even if any excess property was there, that would be with the petitioners in that case. According to the plaintiff, he purchased the property from the said Bhaskaran Nair and others and when the third defendant attempted to trespass into some portion of the property, the present suit had been filed for a declaration that this was the exempted property and for injunction. So the question is whether the plaint schedule property claimed by the plaintiff is the property covered by Ext.A2 judgment and if it is so, he is entitled to get the relief claimed and this aspect has not been considered by the courts below and as such, the decree and judgment of both the courts below are liable to be set aside as this can be agitated only in the civil court. Further he also submitted that, according to the defendants, the other portion of the plaint schedule property claimed by the plaintiff is part of the vested forest but they have not produced the notification required under Rule 2A of the Kerala Private Forest (Vesting & Assignment) Rules and as such, since they have not discharged their burden and on the basis of the evidence available, the courts below ought to have decreed the suit in favour of the appellant. He had relied on the decision reported in State of Kerala v. Komalavally, 1995 (2) KLT 26 in support of his case. 11. On the other hand, learned Special Government Pleader appearing for the Revenue submitted that the subject matter covered by Ext.A2 is the property in Sy.No.43 of Kazhani village and the property taken possession from Bhaskaran Nair and others had been returned to them and they have received the same without any objection and as such, they cannot now claim that any excess land is available with them. Further the descriptions of the property shown by the plaintiff do not tally with the description of the property shown in Ext.A2 and survey numbers were also different and the case of the defendants was that the property claimed by the plaintiff is part of the vested forest notified under the Act and as such, civil court has no jurisdiction to entertain the same. So the courts below were perfectly justified in dismissing the suit. 12. The case of the plaintiff in the plaint was that the plaint schedule property was obtained by the predecessor in interest of the plaintiff namely Bhaskaran Nair and others as per partition deed No.2379/1933 of Sub Registrar Office, Alathur and they were in possession and enjoyment of the same and when there was dispute arose as to whether any portion of the property alloted to them was a vested forest or not, they filed OA.No.106/1985 before the Forest Tribunal Palakkad claiming that 3.67 acres of land in RS.No.43 belongs to them and it was not a forest land and after enquiry, the Forest Tribunal as per Ext.A2 judgment had directed to release the same. As per Ext.A3 proceedings, 2.54 acres of land in RS.No.43 of Kazhani village was returned stating that, that was the only portion of the land that was taken by the Government as vested forest with a plan attached to the same, which was shown as plaint A schedule and the remaining property was in the possession of predecessor in interest themselves. The case of the plaintiff was that the third defendant attempted to trespass into the property and that prompted him to file the suit for declaration and injunction as he had purchased the property from his predecessors as per Ext.A1 document. The case of the plaintiff was that the third defendant attempted to trespass into the property and that prompted him to file the suit for declaration and injunction as he had purchased the property from his predecessors as per Ext.A1 document. But according to the defendants, the subject matter in O.A.No.106/1985 of Forest Tribunal, Palakkad was only in respect of the property comprised in Sy.No.43, but the plaintiff was now claiming property in other survey numbers as well. According to them, those properties were vested forest notified by the custodian of the vested forest under the said Act. 13. The short question is whether in the property claimed by the plaintiff, any portion of the vested forest is included and whether the plaintiff could establish that the property covered by Ext.A2 and the plaint schedule property are one and the same. 14. It is true that the defendants have not produced the notification said to have been issued under Rule 2A of Kerala Private Forest (Vesting & Assignment) Rules. In the decision reported in State of Kerala v. Komalavally, 1995 (2) KLT 26 it has been held that: "When there is no notification under Rule 2A of the vesting Rules in respect of a land over which the dispute was raised on or after 6.10.1981, then the Forest Tribunal has no jurisdiction to deal with the dispute concerning that land. Civil court has jurisdiction to determine such disputes". 15. But this decision was overruled by a Full Bench of this Court in Bhargavi Amma v. State of Kerala, 1997 (2) KLT 513 where it has been held as follows: "The Tribunal's jurisdiction is all comprehensive and admits of no restriction in regard to disputes coming under sub-sections (2) and (3) of Section 3, which are comprehended by clauses (a) and (b) of Section 8 whether it pertained to notified or non-notified properties. A dispute is what it is under the Act and not that it should also have originated subsequent to or as a consequence of the notification published under Rule 2A r/w section 6 of the Act, whose scope and purpose seem to have been over emphasized to dilute the wide reach of section 8 and unsettle generally the very scheme of the Act itself. What section 6 enjoins upon the custodian is to demarcate boundaries of private forests vested with the Government under sub-section (1) of section 3. What section 6 enjoins upon the custodian is to demarcate boundaries of private forests vested with the Government under sub-section (1) of section 3. He could do so even when an application under section 8 is pending before the Tribunal, if he was satisfied the land is vested forest, which without anything more showed that the publication of the notification is not a condition precedent to entertain the application by the Tribunal. In other wards, the existence of a dispute is not to be found from whether thee was or not a notification, but from the allegation in the petition that show its exist4ence and it is barred by the relevant rules as to form and limitation. The Tribunal's jurisdiction is not conditioned by the notification even in whose absence it could entertain the application, WE also wish to point out that in several other decisions too this court had taken a consistent view that without entering on a finding whether a notification had been issued and if so it was valid and property, dismissal of the application filed under section 8 treating them as relating to non- notified properties and hence beyond the Tribunal's jurisdiction, was held to be bad and the Tribunal was directed to entertain the applications and dispose them on merits. The civil court will not have jurisdiction to entertain". 16. So the dictum laid down in Komalavally's case (supra) is no longer good in law. 17. Sections 8 and 13 of the Kerala Private Forest (Vesting & Assignment) Act reads as follows: 8. Settlement of disputes:-(1) Where any dispute arises as to whether:- (a) any land is a private forest or not; or (b) any private forest or portion thereof has vested in the Government or not, the person who claims that the and is not a private forest or that the private forest has not vested in the Government, [may, within such period as may be prescribed, apply to the Tribunal] for decision of the dispute. (2) Any application under sub-section (1) shall be in such form as may be prescribed. (2) Any application under sub-section (1) shall be in such form as may be prescribed. [(3)] If the Tribunal decides that any land is not a private forest or that a private forest or portion thereof has not vested in the Government and - (a) no appeal has been preferred against the decision of the Tribunal within the period specified therefor; or (b) such appeal having been preferred has been dismissed by the High Court, the custodian shall, as soon as may be after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or private forest or portion, as the case may be, to the person in possession thereof immediately before the appointed day] "13. Bar of jurisdiction of civil courts:- [Except as otherwise provided in this Act], no civil Court shall have jurisdiction to decide or deal with any question or to determine any matter which is, by or under this Act, required to be decided or dealt with or to be determined by the Tribunal, the custodian or any other officer." 18. So it is clear form the provisions of the Act that when the dispute is as to whether the disputed land is vested Forest or not, then it can only be decided by the Forest Tribunal under section 8 of the Act and civil court's jurisdiction is barred in this regard in view of the bar provided under section 13 of the said Act. So in this case the attempt of the plaintiff is to get a declaration that no part of the vested forest is included in the plaint schedule property. But according to the defendants, a portion of the plaint schedule property claimed in the plaint is part of the vested forest notified under the Act. So the plaintiff indirectly wants to decide the question as to whether any portion of the property claimed by him is part of the vested forest or not, which is clearly outside the purview of the jurisdiction of the civil court in view of the dictum laid down in Bhargavi Amma's case (supra) and section 13 read with section 8 of the Kerala Private Forest (Vesting & Assignment) Act 1971. So the courts below were perfectly justified in coming to the conclusion that the suit filed by the plaintiff before the civil court is not maintainable in view of the express bar provided under section 13 read with section 8 of the above said Act and rightly dismissed the suit on that ground. 19. It is true that as per Ext.A2 judgment of Forest Tribunal, an extent of 3.67 acres of land in RS.No.43 of Kazhani amsom of Padur desom was exempted and directed to be returned to the petitioners therein who are the predecessors in interest of the plaintiff. The property claimed in that case is in RS.No.43 with boundaries on the east Karthyani Amma thavazhi parambu, south Bhargavy Amma thavazhy vadakekara parambu, west Bhargavi Amma thavazhy vadakekara parambu and north Maruthum parambum Edathara parambum. But in Ext.A1, two schedule of properties were sold, one having an extent of 2.54 acres in old Sy.No.43/1 and 33/0 with new RS.Nos.6/18, 6/38, 19/3 and 19/4 and second item of property was shown as 96 cents in old Sy.No.33/P1A1.38/86 and RS.No.19/4/1 and the boundaries shown therein is entirely different from the boundary shown in Ext.A2. So either by survey number or by boundaries, it cannot be said that these two properties are one and the same as claimed by the plaintiff. It is true that the plaintiff had taken out a commission and the Commissioner by Ext.C4 plan shown item No.1 as unshaded portion in Sy.Nos.6/38, 6/18,19/3 and 19/4 and item 2 in yellow shaded portion as Sy.19/4 and according to the plaintiff, this yellow shaded portion is part of Ext.A2 property and not forest land, but according to the defendants, it is part of the forest land. So the dispute is whether item No.2 is vested forest or not and that question can be considered only by the Forest Tribunal and the civil court has no jurisdiction to enter into that aspect and record any finding on this aspect. Further courts below also found that Ext.C4 plan is not helpful to prove that the property covered by Ext.A2 and the property described in the plaint are one and the same. Further courts below also found that Ext.C4 plan is not helpful to prove that the property covered by Ext.A2 and the property described in the plaint are one and the same. Further the evidence of PW1, the predecessor of the plaintiff also will go to show that he had only property in Sy.No.43 and he did not know as to whether any other survey number is included in Ext.A1 and he had claimed exception only in respect of Sy.No.43 alone. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the plaintiff has failed to prove the identity of the property as claimed by him as the same property exempted as per Ext.A2 judgment of the Forest Tribunal and held that the plaintiff is not entitled to get a declaration as prayed for in view of the deficiency in evidence in this regard and consequently not entitled to injunction as well and dismissed the suit on that ground also. I do not find any reason to vary from concurrent finding arrived by the court below on this aspect as well. So the the courts below were perfectly justified in dismissing the suit as not maintainable and there is no substantial question of law arises for consideration in view of the fact that this aspect has been no longer res integra in view of the Full Bench decision in Bhragavi Amma's case (supra).So the appeal lacks merit and the same is hereby dismissed. In the result, the appeal fails and the same is hereby dismissed. The remedy of the plaintiff is to approach the appropriate forum, if he has got a right to establish to redress his grievance, if it is available, in accordance with law. Considering the circumstances, the parties are directed to bear their respective costs in the appeal.