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2025 DIGILAW 2314 (KER)

M. Mymoonath,  D/o. Late M. P. Pathumma Umma v. State Of Kerala

2025-08-26

P.KRISHNA KUMAR, SATHISH NINAN

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JUDGMENT : Sathish Ninan, J. This appeal is by the respective claimants in O.A.Nos.25, 26, 27 and 28 of 2002 of the Forest Tribunal, challenging the dismissal of their original applications, seeking a declaration that the O.A scheduled properties are not vested under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (herein after referred to as “the Vesting Act”). 2. The extent of the property covered in each of the original applications is 20 acres; thus, the total extent of properties involved is 80 acres. The properties are situated in Sy.No.83(part), in Kumaranellur Village, Kozhikode Taluk. The properties originally belonged to Manakkal Puthiyaveetil Tharavadu. The applicants claim title under Ext.A1 Assignment Deed dated 29.03.1963 as included in schedule item No.7 in Ext.A1. Ext.A2 is the prior title deed. It is the 'Kanom Deed' dated 19.10.1920 entered into by the prior holder with the 'Janmi'. Ext.B1 is the notification dated 08.07.1977 issued under the Vesting Act. The property is stated to be included in VFC item No.129, as part of “Paikkada Malavaram”. 3. According to the applicants, the properties were under fugitive cultivation even before the coming into force of the Madras Preservation of Private Forests Act, 1949 (herein after referred to as “the MPPF Act”) and hence, the MPPF Act is not applicable. Since the MPPF Act did not apply as on the appointed day, the Vesting Act is also not applicable. Alleging that there has been obstructions from the Forest Department with regard to enjoyment of the properties, the original applications were filed. 4. The Tribunal had originally dismissed the original applications. Challenging the same, the applicants approached this Court in M.F.A. (Forest) No.1 of 2006. This Court set aide the order of the Tribunal and remanded the matter back to the Tribunal granting opportunity to both sides to raise additional pleadings and adduce additional evidence, and establish their contentions. After the remand, additional evidence was taken by the Tribunal. Again, the original applications were dismissed. 5. We have heard Shri.M.P. Madhavankutty, the learned counsel for the appellants-applicants and Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forest) for the respondent-State. 6. Shri.M.P. Madhavankutty, the learned counsel for the appellants, would submit that the primary requirement for the applicability of the MPPF Act is not satisfied in the instant case. The application schedule properties must be part of a private forest having a contiguous area of 100 acres. 6. Shri.M.P. Madhavankutty, the learned counsel for the appellants, would submit that the primary requirement for the applicability of the MPPF Act is not satisfied in the instant case. The application schedule properties must be part of a private forest having a contiguous area of 100 acres. The materials on record establish that the 100 acres criteria is not satisfied. He next contended that, even assuming that the total extend is 100 acres, still, there is a road dividing the properties into two. Thus, the contiguous nature is disrupted. The extent of each parts after such division will be less than 100 acres. Therefore, the MPPF Act is not attracted. He also argued that the explanation provided under Section 1 (2) (iii) that the existence of roads will not operate against the contiguous nature, does not apply for Section 1 (2) (i). It is next contended that, even if the said condition of contiguous area of 100 acres is taken as satisfied, still the application schedule properties were under fugitive cultivation prior to 14.07.2009. Hence, the application of the MPPF Act stands excluded under the Explanation to Section 1 (2) (i). Thus, viewed in any manner, the MPPF Act did not apply to the application schedule properties and is not a private forest under the Vesting Act, is the contention. 7. All the contentions urged by the appellants are countered by the learned Special Government Pleader. However, he would submit that the said questions would not crop up for adjudication in the present case since the Original Applications are bound to fail on the sole ground of failure of the applicants to establish the identity of the application scheduled properties. 8. The learned counsel for the appellants replied that, under Section 8 of the Vesting Act, an enquiry into the identity or the ownership of the land is not contemplated; it is not a suit on title. The OA schedule gives sufficient details necessary to identify the property claimed, in accordance with Order VII Rule 3 of the Code of Civil Procedure. The learned counsel also referred to the judgment of this Court in Savithri Ammal v. Padmavathi Amma [1990 (1) KLT 187] to contend that, verifiable details of the property sufficient to identify the same is sufficient and that there cannot be an inflexible rule whether survey numbers, boundaries or extent is to prevail. The learned counsel also referred to the judgment of this Court in Savithri Ammal v. Padmavathi Amma [1990 (1) KLT 187] to contend that, verifiable details of the property sufficient to identify the same is sufficient and that there cannot be an inflexible rule whether survey numbers, boundaries or extent is to prevail. He also argued that, as is evident from Ext.C3 report, the identification was done in the presence of the officials of the Forest Department. The Commissioner has also noted the present boundaries. Therefore, there could be no issue with regard to the identity of the property, it is argued. 9. Under Section 8 of the Vesting Act, when an applicant claims that the property claimed by him is liable to be excluded from the notification and that it is not a private forest under the Act, it is obligatory on the applicant to prove the identity of the property which he claims. The dispute which is being settled under Section 8 of the Vesting Act is in respect of the land that is claimed by the applicant. The claim of the applicant has essentially to be founded upon some right. Of course it need not be an absolute ownership; a right to possess it sufficient. As is evident from the definition of 'owner' as given in Section 2 (c) of the Vesting Act, 'owner' in relation to a private forest under the Act includes a mortgagee, lessee or other persons having a right to possess and enjoy the private forest. It is not as if any wayfarer can approach the Tribunal and seek for declaration in respect of any property. It is necessary that he must have right over the property; so also he is bound to establish the identity of the property. In Hamza Haji v. State of Kerala and another [2006 (3) KLT 941 SC] , the Apex Court held that it is the bounden duty of the Court to find on the title and possession of the claimant and also the identity of the land claimed in a proceedings under Section 8 of the vesting Act. The Apex Court held, “We hope that this judgment will act as an eye opener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. The Apex Court held, “We hope that this judgment will act as an eye opener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identity of the lands sought to be claimed, while entertaining applications under Section 8 of the Act.” (emphasis supplied) Hence the argument of the appellant that identity of and right over the property is beyond the scope of a proceeding under Section 8 of the Vesting Act, lacks merit. Therefore, we firstly proceed to determine the contention regarding identity of the properties. 10. Ext.A1 is the title deed of the applicants and Ext.A2 is its prior deed. The application schedule properties are included in item No.7 to the schedule in both Exts.A1 and A2 documents. The schedule description reveals that the properties are un-surveyed. In the counter filed by the respondent to the O.A, the description and identity of the O.A schedule properties were challenged. The relevant plea reads thus; “The description of the property as per the schedule in O.A is not true. The area shown by the applicant is the part of the vested forests of VFC item No. 129 in Peedikappara section of Thamarassery Range. It is submitted that on perusal of the document filed by the applicant along with OA, the schedule of the both documents cannot identify the schedule property and the survey number of the property and the description of the property is also different.” 11. After the remand, a Commission was taken out Ext.C3 is the report and Ext.C3(a) is the plan. In Exts.A1 and A2, the description of the properties is only as per the boundaries. The four boundaries as described in Exts.A1 and A2 read thus: - The most conspicuous among them is the northern boundary, which is a river. Exts.C3 and C3(a) reveal that, the river on the north has not been located. With regard to the other boundaries also, no evidence is adduced to prove that the boundaries noted tally with the description as given in the title deed. Exts.C1 and C2 are the Commissioner's report and plan obtained in the earlier round of the litigation. Exts.C3 and C3(a) reveal that, the river on the north has not been located. With regard to the other boundaries also, no evidence is adduced to prove that the boundaries noted tally with the description as given in the title deed. Exts.C1 and C2 are the Commissioner's report and plan obtained in the earlier round of the litigation. The Tribunal had found that the identification of the scheduled properties did not tally with the descriptions in Exts.A1 and A2 title deeds. On appeal, this Court in the judgment dated 24.07.2019 in M.F.A.(Forest) No.1 of 2006 concurred with the same. This Court held thus; “Much arguments are advanced about identity of the property. From Exts.A1 and A2 it is seen that a river flows through the northern boundary of the entire properties. However, from Exts.C1 and C2 report and plan it can be seen that a small stream is running in north south direction through the property mentioned in O.A.No.27/2002. According to the documents, a river must have been there through the northern boundary of the entire properties and this stream could be originating from the river. But there is no evidence to justify that the properties have been clearly identified by the Commissioner although he visited the properties with the help of village officers and forest officers.” This Court had further held thus; “However, we find that the appellants are not entitled to get any order, without identifying the properties to show that these lands, included in Exts.B1 and B2, are not private forests vested in the State as per Section 3(1) of the Vesting Act as on 10.5.1971. 12. The Tribunal noted that, even after remand, the very same properties were inspected in Ext.C3 report and Ext.C3(a) plan. The report does not give any reference to the discrepancies regarding the boundaries. It does not even refer to the boundaries in Exts.A1 and A2. It is not even attempted to be established by the applicants during the course of evidence to establish the identity of the properties with reference to the boundaries as mentioned in Exts.A1 and A2. 13. The learned counsel for the appellants would contend that, by the passage of time, there must have been changes in the holdings on the boundaries and therefore, it would not be possible to locate the very same boundaries as existed in Exts.A1 and A2. 13. The learned counsel for the appellants would contend that, by the passage of time, there must have been changes in the holdings on the boundaries and therefore, it would not be possible to locate the very same boundaries as existed in Exts.A1 and A2. Of course by the passage of time, the holdings might have changed. However, it was incumbent upon the applicants to adduce evidence to establish such changes. Such a course is not even attempted to. As noticed, in the earlier round of proceedings, it was found that the identity of the O.A scheduled properties, with reference to Ext.B1 notification, has not been established. As noted above, Ext.C3 report obtained after the remand has not made any difference. The identity of the property has not been established with reference to Exts.A1 and A2. 14. The mere fact that in the OA the applicant gave a boundary description claiming it to be the present boundaries of the property, without establishing that such boundaries correspond to the boundaries as stated in the document relied upon by them, will not help. While the forest officials would identify the notified property, it was for the applicants to establish the identity of the property which they claim with reference to Exts.A1 and A2. Admittedly Exts.A1 and A2 does not mention any survey number. River is a physical boundary which could be reckoned for identification. Placing reliance upon the same is in accord with the judgment in Savithri Ammal v. Padmavathi Amma (supra). Thus, we overrule the contention of the appellants regarding identity. The identity and right over the property, with reference to Exts.A1 and A2 having not been proved/established, the original applications are bound to fail. 15. Having found that the very identity of the properties has not been established, the other points urged by the appellants do not arise for consideration. Anyhow, we proceed to discuss on the merit of the contention that the notified land does not have an area exceeding 100 acres. Ext.B1 is the notification. It is not in dispute that the area notified is known by the name “Paikkada Malavaram”. In Ext.B1 notification the property is VFC item No.129 and is shown as situated in Survey No.83 Part. Ext.B1 is the notification. It is not in dispute that the area notified is known by the name “Paikkada Malavaram”. In Ext.B1 notification the property is VFC item No.129 and is shown as situated in Survey No.83 Part. Three properties have been included thereunder; one id situated in Kumaranellur having an extent of 32.87 hectares, and the other two in Kodiyathur village having an extent of 5.42 hectares and 7.82 hectares. This makes the total extent at 46.11 hectares which is more than 100 ares. In Ext.C3(a) Commissioner's Plan the VFC item 129, called “Paikkada Malavaram”, in Survey No.83 Part, and situated in Kumaranellur, Kodiyathur villages have been shown and indicated therein as plot A,B,C,D,E and F. The A to F plots taken together has an extent of more than 100 acres. Ext.B3 is the combined sketch. It shows the item No.129 situated in Survey No.83 Part. We find that the identification and measurements therein tally with that shown in Ext.C3. 16. The learned counsel for the appellant argued that, through the plot No.B shown in Ext.C3(a) plan, runs a public road (Thottumukkam - Mysorepatta – Thottakkad Road) in north-south direction. It is a Panchayat road. Since the Road splits the total extent into two, the contiguity of the forest is lost. After such division the extent of the either portions is only less than 100 acres. Therefore, the requirement of, contiguous extent of more than 100 acres for application of the MPPF Act, is not satisfied. 17. The above argument of the learned counsel for the appellant would have force if the appellants were able to satisfy that, when the MPPF Act came into force in the year 1949, the way referred to by him had existed. PW6 is the Panchayat Secretary. He deposed that the Panchayat road register is only for the period from 1992-93. PW5 claims to have been a former member of the Kodiyathur Grama Panchayat during the period 1979-84. He deposed that the road was in existence much before the year 1970 and that it was included in the road register of Kodiyathur Grama Panchayat. However, in cross examination he deposed that the Kodiyathur Grama Panchayat was formed in the year 1968 and that prior to that it was part of the Pannikkod Panchayat. He deposed that the road was in existence much before the year 1970 and that it was included in the road register of Kodiyathur Grama Panchayat. However, in cross examination he deposed that the Kodiyathur Grama Panchayat was formed in the year 1968 and that prior to that it was part of the Pannikkod Panchayat. He claimed that the existence of the road is recorded in the register at the Kodiyathur Panchayat and that he has seen such entry. He deposed, The register would have been the best piece of evidence to prove the existence of the road prior to the year 1970. However, the said document has not been produced nor even attempted to be summoned. No one from the said Panchayat is examined. Suffice to notice that, there is no evidence to find that the road in question was in existence at the time of coming into force of the MPPF Act. The existence of the road on the relevant date having not been proved, the contention of the appellant that the contiguity of the property is lost and that the total area falls short of 100 acres, fails. 18. In the light of the finding above, the argument based on the explanation provided under sub-clause (iii), whether the existence of a road would take away the contiguity, does not arise for consideration. 19. On the above discussions, we concur with the findings of the Tribunal. We do not find any merit in the appeal. The appeal fails and is dismissed. No costs.