Raveendranadhan (Died) vs State Of Kerala on 31 October, 2013

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Kerala High Court

Raveendranadhan (Died) vs State Of Kerala on 31 October, 2013

Challenge in this appeal is to the legality of the impugned common order of dismissal dated 31.10.2013 rendered by the learned Forest Tribunal, Kozhikode in O.A. Nos.51/2009, 52/2009 and 53/2009. The Original Applications were filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the Vesting Act), for a declaration that the application scheduled properties are not private forest vested in the Government under the Vesting Act and the appellants/petitioners are entitled to the benefits under Sections 3(2) and 3(3) of the Vesting Act.

2. The material facts in brief for disposal of the appeal MFA (Forest) 116/2014 2 are as follows: The appellants have alleged that all the properties scheduled in the applications originally belonged to their common ancestor Chathu Nair as puthravakasam thavazhi and on his demise the properties devolved upon his children viz Subhadra Amma, Sakunthala Amma, Sarojini Amma, Viswanathan Nair and Vasu Nair. The properties are lying contiguously and are in Survey Nos. 334/8, 337/1 & 2 of Erimayoor Village. After the death of Chathu Nair, his children partitioned the properties as per partition deed No. 1284/1972 of SRO, Alathur. As per the partition deed, Item B schedule property was allotted to Subhadra Amma. Her legal heirs are the appellants 1 to 7. O.A.No.51/2009 was filed by them. D schedule property in the partition deed was allotted to the share of Sakunthala Amma and C schedule property was allotted in favour of Sarojini Amma (9th appellant). O.A. No.52/2009 was filed by Sakunthala Amma (8th appellant). O.A. No.53/2009 was filed by Sarojini Amma. According to the appellants, the properties MFA (Forest) 116/2014 3 belong to them as per the partition deed and they also purchased jenmam rights over the same. While the properties were in their possession and enjoyment, the officials of the Forest Department on 29.7.2009 prevented them from enjoying the properties alleging that it is the forest land. But no forest species or trees are in the properties, even though the properties are lying in the bed of a small hillock. The entire property is known by name Cheruvaparambu. The properties are being cultivated by the members of the family of the appellants and it is not a forest land as defined under the Vesting Act and it is not coming under the Madras Preservation of Private Forests Act, 1949 ( for short 'MPPF Act'). The lands are abutting to the paddy land and used for fugitive cultivation. No notification as envisaged under Rule 2A(2) of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 (for short `the Vesting Rules') was published regarding the disputed land. Hence, they have filed the applications for a MFA (Forest) 116/2014 4 declaration that the properties in question are not forest lands and they are entitled to get the benefit under Sections 3(2) and 3(3) of the Vesting Act.

3. The Divisional Forest Officer refuted their claim contending that the properties scheduled in the applications form part of Malavaram known as Erattode Muringamala Malavaram having a total extent of 121.46 hectares of land and is vested with the Government by virtue of the vesting act with effect from 10.5.1971. The properties are part of a contiguous tract of Erattode Muringamala which leads to Choolannur Peafowl Sanctuary and is near to drought affected Palakkad gap which forms catchments area for Gayathripuzha and Bharathapuzha. That part of forest is highly sensitive and is of high ecological value and the inhabitants residing around this region are fully dependent on the springs, nullas and streams originate from these hill tracts. The ground vegetation along the slopes of rocky outcrops in these forests are the typical habitat of many MFA (Forest) 116/2014 5 endemic, rare and endangered species of flora and fauna. Hence, the protection of this land is of utmost importance for the preservation of the edaphic climatic and other environmental factors of this region. So, the properties scheduled in the applications are private forest attracting the provisions of the Vesting Act and the appellants are not eligible for exemption under the provisions of the Vesting Act. The respondents have also raised a contention that the claim is barred by limitation.

4. The court below conducted trial of all these cases together treating O.A.No.51/2009 as the leading case. PWs.1 to 5 were examined and Exts.A1 to A4 were marked on the side of the appellants. Exts.C1 to C1(3) series were also marked. RW1 was examined and Exts.B1 to B6 were marked on the side of the respondents. After evaluating the evidence, the learned Forest Tribunal dismissed all the applications on the finding that the properties involved are forest lands and the appellants are not entitled to get the MFA (Forest) 116/2014 6 properties exempted from vesting under Sections 3(2) and 3 (3) of the Vesting Act. The said findings of the learned Forest Tribunal is assailed in this appeal.

5. Heard the learned counsel for the appellants as well the learned Special Government Pleader (Forest).

6. The definite case of the appellants is that the properties scheduled in the applications are not private forests as defined under the Vesting Act. At the outset, it is to be noted that the respondents have raised a contention that the applications filed by the appellants are barred by limitation as per Section 3 of the Kerala Private Forest (Tribunal) Rules, but the said contention has been rightly held otherwise as the respondents did not produce documents to conclude that the notification as provided under Rules 3(2) and 3(3) of the Forest Tribunal Rules have been published in the Village Office, Panchayat Office, Office of the Forest Tribunal, Range Office, Office of the Divisional Forest Officer and in the Office of the Custodian of the forest MFA (Forest) 116/2014 7 as well in two or more newspapers having circulation in the locality simultaneously as contemplated in the above Rules. As publication of the notification was not made in respect of the properties involved, the learned Land Tribunal has rightly held that the claim raised by the appellants are not barred by limitation.

7. The appellants claimed their title over the properties scheduled in the applications on the basis of partition deed No. 1284/1972 of SRO, Alathur which has been produced and marked as Ext.A1. According to them, Chathu Nair, their predecessor in interest had puthravakasam thavazhi right over the property and on his demise the properties devolved upon his five children, viz. Subhadra Amma, Sakunthala Amma, Sarojini Amma, Viswanathan Nair and Vasu Nair and partition was effected as per Ext.A1 partition deed and they are holding possession of their respective shares after effecting cultivation in the property. But their claim has been denied by the MFA (Forest) 116/2014 8 respondents contending that the properties are part of a contiguous tract of Erattode Muringamala Malavaram having a vast extent governed by erstwhile MPPF Act and now vested with the Government under Section 3 of the Vesting Act. So, the first question to be answered is whether the disputed properties are private forest coming under the Vesting Act. The Vesting Act came into force on 10.5.1971. Execution of Ext.A1 was after the Act came into force. As per Section 2(a) of the Vesting Act, the appointed day means the 10th May, 1971. Section 2(f) of the Vesting Act defines 'private forest' which reads as follows:

"2. (f) "private forest" means--

(1) in relation to the Malabar district referred to in Sub-

section(2) of Section 5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956)--

(i) any land to which the Madras Preservation of Private Forests Act 1949 (Madras Act XXVII of 1949), MFA (Forest) 116/2014 9 applied immediately before the appointed day exclud- ing--

(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (I of 1964):

(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.

Explanation.- Lands used for the construction of office buildings, godowns, factories, quarters for work- men, hospitals, schools and playgrounds shall be deemed to be ands used for purposes ancillary to the cultivation of such crops;

C. lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and D) sites of buildings and lands appurtenant to and nec- essary for the convenient enjoyment or use of such buildings;

MFA (Forest) 116/2014 10

(ii) any forest not owned by the Government to which the Madras Preservation of Private Forests Act,1949 did not apply, including waste lands which are enclaves within wooded areas.

(2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, in- cluding waste lands which are enclaves within wooded areas.

Explanation.- For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs. Section 2(f)(1) (i) defines private forest as any land whatever be its nature and character to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949) was applicable to the land in 1949 and it continued to apply upto 10.5.1971, and that land would be treated as a private forest for the purpose of this Act. The lands, which are exempted from the definition of forest lands, are enumerated as items (A) to (D). So as per Section 2(f)(1) MFA (Forest) 116/2014 11 sub clause (i), any land to which the Madras Preservation of Private Forests Act, 1949 applied immediately before the appointed day of 10.5.1971 excluding the lands enumerated in (A) to (D) are to be treated as forest land.

8. In the Madras Preservation of Private Forests Act, 1949, forest is defined in Section 2(a) as :

(a) 'forest' includes waste or communal land containing trees and shrubs, pasture land and any other class of land declared by the State Government to be a forest by notification in the Fort St. George Gazette."

Section 2(i) of the MPPF Act applies to private forests in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres.

Explanation to Section 2 of the Act reads as follows:

" Nothing in this clause shall be deemed to apply to any land which was brought under fugitive or other cultivation prior to the 14th December, 1949, by an owner or any person claiming under him."

As per Section 2(f)(1)(i), of the Vesting Act any land to MFA (Forest) 116/2014 12 which Madras Preservation of Private Forest Act, 1949 applied immediately before the appointed day has to be treated as private forest excluding the categories of land enumerated as (A) to (D). Of course, it is to be noted that even though the `forest' is defined in the MPPF Act, no definition has been given to the word 'forest' in the Vesting Act. But in State of Kerala v. Moosa Haji (1984 KLT 494 (FB)), a Division Bench of this Court held as follows:

"3. As for the Madras Preservation of Private Forests Act, 1949 ("M P. P. F Act"), its object was to prevent indiscriminate destruction of private forests and interference with customary and prescriptive rights therein, pending further legislation. The Act was conceived as a temporary measure, but it continued to be in force by a series of amendments, till it was repealed in 1971 by the Vesting Act. The M. P. P. F. Act applied to private forests in the Malabar and South Kanara districts of the erstwhile Madras State, and the key provision was the one contained in Section 3 which prohibited alienation of any part of the forest, MFA (Forest) 116/2014 13 and the cutting of trees or the doing of any act likely to denude or diminish the utility of the forest, except with the previous permission of the District Collector. Section 6 empowered the Government, by notification, to prohibit or regulate the doing of any act detrimental to preservation, and to regulate exercise of customary or prescriptive rights. The other provisions which dealt with institution of prosecutions, bar of suits, rule making power etc. are not material for our present purposes."

It is further observed that:

"8. Speaking for a Division Bench of this Court in State of Kerala v. Anglo American D. T. T. Co. (1980 Ker LT 215), Poti J. (as he then was) had said :--

" "Forest'' is not a term defined in the Act. With refer- ence to lands in the Malabar area and to which the Madras Preservation of Private Forests Act applies on the appointed day the test for determination whether the land is 'private forest' is different. Evidently the scheme of that section appears to be that if the land is shown to be private forest on the date the Madras Preservation of Private Forests Act came into force, it would continue to be private forest even if it has actu- MFA (Forest) 116/2014 14 ally ceased to be a forest unless one or other of the exclusions in clauses A to D in the definition applies."

We respectfully think that that was true approach to be made to the definition in Section 2(f) (1) of the Vesting Act. The contrary view taken by another Division Bench in M. F. A. No. 480 of 1978, without much of a discussion, and without reference to the specific statutory provisions, does not appeal to us."

9. Admittedly, the properties scheduled in the applications are in the Malabar area. It is not having a contiguous area exceeding 100 acres. Since the appellants have a definite contention that the disputed area is not having the characteristic features of a forest land and is not a forest land coming under the provisions of the Vesting Act, the burden is upon them to prove the said facts on solid and definite evidence. Section 3 of the Vesting Act reads as follows:

"3. Private forests to vest in Government.- (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections MFA (Forest) 116/2014 15 (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.

(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.

Explanation.- For the purposes of this sub-section, "cultivation" includes cultivation of trees or plants of any species.

(3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling are applicable to him under Section 82 of the MFA (Forest) 116/2014 16 said Act.

(4) xx xx xx"

It is significant to note that the appellants have sought for the benefits under Sub-sections 3 (2) and 3( 3) of Section 3 of the Vesting Act, which are substantially different. Under sub-section(2) the appellants have to prove that the land was under personal cultivation, but under sub-section (3) the appellants have to prove that the land was held under a valid registered document of title and was intended for cultivation. In order to claim the benefit of Section 3 (2) of the Act the applicant should prove that he is the owner and he had personal cultivation in the land prior to the appointed day.

10. As mentioned earlier, the appellants claimed title over the properties as per Ext.A1 partition deed dated 28.6.1972. Ext.A8 executed in the year 1968 has been produced as the prior title deed of the partition deed. In Ext.A1, the property is described as paramba, but as per MFA (Forest) 116/2014 17 Ext.A8 except two items all other items are described as wet lands. The survey numbers are also different. Exts.A3, A4, A9 are only tax receipts and tax receipts issued by village officer cannot be taken as conclusive proof of title. Even though the appellants have a case that the entire property had been cultivated, the nature of cultivation alleged to have been effected in the property has not been narrated in the application. But PW1, who is the legal heir of Subhadra Amma, has admitted that there was no cultivation when the partition deed was executed in the year 1972 and it was lying as Valarthukadu planted with pullanthi and other shurbs for green manure for paddy cultivation. So, his case that land was under cultivation is absolutely incorrect as he has admitted in cross examination that the B Schedule property in Ext.A1 in his possession (which has been allotted to the share of Subhadra Amma) was not under cultivation. The person who claims that the property was cultivated has to prove its existence on the appointed day. MFA (Forest) 116/2014 18

11. Of-course the appellants examined PWs.2 to 5 to prove that the land in question was not a private forest on the appointed day. PW2 has deposed that she has not effected any cultivation in the disputed area and most of the boundaries of the properties are forest lands. Though she deposed that tapioca was cultivated in the property before 1971 for sometime there was no pleadings to that effect in the application. PW3 even though deposed that the property was cultivated with paddy till 1971, it is admitted by her in cross-examination that no cultivation was effected in the disputed land and now it is covered with shrubs and trees. The deposition of Pws. 4 and 5 also would also establish the fact that the properties were not cultivated with any fugitive cultivation as claimed by the appellants and their deposition will not any way help the appellants to substantiate their case that the property was having fugitive cultivation or other cultivation, to infer non- application of MPPF Act on the appointed day. MFA (Forest) 116/2014 19

12. Exts.C1 to C1(3) series also will not support their case that they cultivated the property, on the other hand, it could be gathered that most of the areas are covered with forest species and shrubs. The commission report will not support the case of the appellants that paddy has been cultivated in the property as claimed by the appellants. On evaluating the evidence adduced by the appellants, it is not possible to infer that the properties were lands under cultivation and that they had cultivated the same immediately prior to the commencement of 1971 Act and that therefore the properties are not private forest as defined in the Vesting Act.

13. On the other hand, RW1, the Range Officer of Alathur, who conducted personal inspection of the properties, has deposed that it is the portion of Erattode Muringamala Malavaram and the Malavaram has a total extent of 241.6 hectares. Ext.B1 is the sketch with respect to the property scheduled in O.A. No.51/2009 and Ext.B3 is MFA (Forest) 116/2014 20 the sketch of the property pertaining to O.A. No.52/2009. Ext.B5 is the sketch of the property scheduled in O.A.No. No.53/2009 and Ext.B2, Ext.B4, Ext.B6 respectively are the notifications pertaining to the disputed properties. He has deposed that the properties are fully covered with forest trees and it is lying contiguously and the rocky region having an extent of more than 100 acres comes within the purview of erstwhile MPPF Act.

14. In State of Kerala v. Amalgamated Malabar Estates (P)Ltd.(1979 KLT 829 (FB), this Court observed as follows:

"13. .....But we find it difficult to say that lands principally cultivated with eucalyptus trees would be lands principally cultivated with an agricultural crop coming within the ambit of the term "agricultural crop"

as used in the Act. One should not deviate from the normal rules of statutory construction and refuse to evaluate the meaning of the word "any other"

appearing before agricultural crop in S.2(f)(1)(i)(C) of the Act. We find much force in the contention of the learned Additional Advocate General that the use of MFA (Forest) 116/2014 21 these words attracted the principles of ejus- demgeneris, according to which the words 'agricultural crops' in the section can mean only a similar crop as cashew or other fruit bearing trees mentioned in the same clause.

14. In this connection we might refer to a decision of this Court in K.C.Alexander v. State of Kerala AIR 1966 Kerala 72. The question arose in that case was whether the trees would come within the ambit of the expression 'any crop or other product raised on land' occurring in S.9 of the Travancore Land Conservancy Act of 1091, S.9 there reads as follows:

"Any person unauthorisedly occupying any land for which he is liable to pay a fine under S.6 and an assessment or prohibitory assessment under S.7, may be summarily evicted by the Division Peishkar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other structure erected or anything deposited thereon shall also, if not removed by him after such written notice as the Division peishkar may deem reasonable, be liable to forfeiture. Forfeiture under this section shall be adjudged by the Division Peishakar and any property so forfeited shall be disposed of as the Division peishkar may direct."

MFA (Forest) 116/2014 22

A Division Bench of this Court (M.S.Menon, C.J. and P. Govindan Nair, J.) had held:

"S.9 speaks of 'any crop or other product raised on the land'. Trees cannot possibly be considered as a 'crop or other product raised on the land'. What is meant by 'crop or other product raised on the land' must be what is familiarly known in the law as 'Emblements' . According to Black's Law Dictionary the word 'Crop' or 'Emblements' means:

Such products of the soil as are annually planted, severed, and saved by manual labour, as cereals, vegetables, grass maturing for harvest or harvested etc., but not grass on land used for pasturage.""

It is further held that "The word 'cultivation' here is used in the general or broad sense in which the term "agricultural operations"

was understood by the Supreme Court in Benoy Kumar's case AIR 1957 S.C.768. In this wider sense, planting of eucalyptus may be an agricultural operation, and any land planted with eucalyptus may qualify for being treated as land under personal cultivation, for the purposes of that section. But when MFA (Forest) 116/2014 23 we turn to S.2, the scheme is different. The exclusion there are:

(i) gardens and nilams;

(ii) tea, cocoa, coffee, rubber, cardamom and cinnamon plantation; and

(iii) lands cultivated with cashew and other fruit-

bearing trees or other agricultural crops.

Every form of cultivation or agricultural operation is not within the scope of the exclusions here; the exclusions are limited to well-known classes. The first is garden land and nilams, a class with its own characteristics. The second is plantations of the specified categories, again a class with distinctive features. The third is land cultivated with fruit-bearing trees like cashew or other agricultural crops. The very setting and the order in which the exclusions are enumerated indicate that it is not the intention of the legislature to include in category (iii) above the product of every kind of cultivation or agricultural operation. If "agricultural crops" were to be construed widely, the detailed enumeration of the classes and the different kinds of crops comprised therein, would have been unnecessary."

15. Applying the principles laid down in this decision, MFA (Forest) 116/2014 24 with the materials available on record, it is difficult to conclude that any agricultural crop has been planted in the properties in dispute, even though the appellants asserts so. It is also to be noted that no reliable evidence was adduced by the appellants so as to indicate that fruit bearing trees or any other agricultural crop had been cultivated in the properties prior to the appointed day so as to exclude the lands in dispute from the definition of forest land. Under the Vesting Act exception is given to private forest under personal cultivation within the ceiling limits. No documentary evidence is available on record to infer that they are only holding properties within the ceiling limits. In State of Kerala Vs Thomas( 1987( 1 )KLT 530) it is held that, it is elementary that a person who claims exception under either of these sub-sections has to affirmatively prove by positive evidence that he fulfills all the requirements of the provision. A mere assertion by him will not be sufficient substitute for affirmative evidence or positive proof. As it MFA (Forest) 116/2014 25 has also come out in evidence that the boundaries of the properties are forest lands covered with forest trees, the learned Tribunal is justified in presuming that originally it was a forest land and continues as a forest.

16. Apart from Exts.A1 to A14, the appellants have not produced any documents so as to conclude that the properties were planted with agricultural crops or they are having the intention to plant the area with agricultural crops and their holdings are within the ceiling limits . But in the appeal, they have produced certain documents as Annexures A1 to A6 along with an application under Order 41 Rule 27 of CPC to accept the same in evidence. According to the learned counsel for the appellants, the documents produced as Annexures A1 to A6 would show that Chathu Nair, their predecessor in interest, was holding possession of the properties for cultivation and as his legal heirs, the properties were used for agricultural operations prior to the appointed day. So it is not having the MFA (Forest) 116/2014 26 characteristic features of a forest land and that MPPF Act is not applicable. So, their prayer is to accept the documents produced as Annexures A1 to A6 and to set aside the impugned order under challenge. Before going into the details of the documents referred above, the question to be looked into is whether the relevant provision can be made applicable to the facts of this case .

17. Order 41 Rule 27 of CPC reads as follows:

R.27(1) -The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) xx xx xx (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree appealed against was passed, or

(b)the appellate court requires any document MFA (Forest) 116/2014 27 to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission.."

18. It is well settled that normally the appellate court should not travel outside the records produced before the trial court and cannot take any evidence in appeal. Order 41 Rule 27 of CPC enables the court to take additional evidence only in the circumstances specifically enumerated therein. The first point to be established by a person seeking introduction of additional evidence is that even after due diligence such evidence was not within his knowledge or could not after exercise of due diligence be produced by him at the time when the decree appealed against was passed. MFA (Forest) 116/2014 28 Therefore, the appellate court is entitled to call for fresh evidence only on satisfaction of the conditions laid down in the rules. Here, it is to be noted that in the appeal memorandum, there is no mention that the documents produced along with the petition were not within their knowledge or could not produce before the trial court even after exercise of due diligence. It is also well established that the power under Order 41 Rule 27 of CPC should be used sparingly and only if the party is able to establish that even after their best efforts, such additional evidence could not be adduced at the first instance and the documents are relevant for deciding the issue. Here it is to be noted that there is no whisper regarding the same in the appeal memorandum, but they have simply produced the documents, without any satisfactory explanation for not having produced it before the trial court. So, it is not just and proper to accept Exts.A1 to A6 produced along with the appeal memorandum in evidence as prayed for by the MFA (Forest) 116/2014 29 appellants. Moreover, most of the documents have been obtained only much later after disposal of the O.As. by the learned Forest Tribunal. So, the prayer for acceptance of additional documents under Order 41 Rule 27 is rejected. In short, we find absolutely no justification to interfere with the findings of the learned Forest Tribunal.

Hence, the appeal is dismissed with no order as to costs.

Sd/-

ANTONY DOMINIC JUDGE Sd/-

SHIRCY V. JUDGE ks.

TRUE COPY P.S. TO JUDGE

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