Kerala High Court
Ammarukunhi Amma And Ors. vs State Of Kerala And Ors. on 9 August, 2002
Equivalent citations: AIR2003KER33, AIR 2003 KERALA 33
JUDGMENT Sankarasubban, J.
1. This M.F.A. is filed under Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971) (hereinafter referred to as 'the Act') against the judgment in O.A. No. 170 of 1976 of the Forest Tribunal. Kozhikode. The facts of the case are as follows :
2. Appellants are petitioners 2 to 9 in O.A. No. 170 of 1976 before the Forest Tribunal, Kozhikode. The application was filed by one Karimbil Kunhikoman under Section 8 of the Act for a declaration that the properties described in the petition are plantations and not liable to be vested with the Government as forest, Kunhikoman died pending the application and the appellants herein, who are the widow and children were impleaded as petitioners 2 to 9.
3. It was the case of the appellants that the petition schedule property having an extent of 1048 acres and 21 cents is a cardamom plantation, mainly coffee having been planted in certain areas. Therefore it was contended that the area involved is not a forest area liable to be vested with the Government under the Act. Originally, the area had been shown as 910.54 acres and subsequently, the area was shown as 1048.21 acres, by way of amendment of the petition.
4. In the counter filed by the respondents State and the custodian of Vested Forests, Calicut, it was specifically stated that out of 910.54 acres claimed by the petitioners, about half portion was seen planted with crops and about half portion was left without any cultivation prior to 10-5-1971. As per order 8-8-1971, the Tribunal had found that the disputed area had been cultivated prior to 10-5-1971 with cardamom and is not a forest liable to be vested with the Government. The O.A. was allowed. The respondents had filed M.F.A. No. 454 of 1979 before this Court. The petitioner in the O.A. had tiled (A. 831 of 1977 for amendment of the petition to show the total extent of land as 1048.21 acres. That I.A. had been dismissed by the Tribunal. Against that M.F.A. No. 466 of 1979 was filed this Court. M.F.A. No.454 of 1979 and M.F.A. No. 466 of 1979 were heard together and disposed of by this Court by a common judgment dated 22-1-1985. This Court was pleased to set aside the order of Tribunal and remand the matter to it for further enquiry and for fresh decision. The amendment application was directed to be dealt with by the Tribunal.
5. Subsequently to the remand, the Tribunal allowed the application for amendment of the extent of the area. The original applicant died by that time and the appellants herein was impleaded as his legal representatives. After considering the evidence, the Tribunal dismissed the O.A. holding that there was no evidence to show that the disputed area is a plantation. It is against the above order that the present appeal is filed.
6. Before the Forest Tribunal, on behalf of the appellants, PWs 1 to 5 were examined and Exts. P1 to P39 were marked. On the side of the respondents Exts. R1 to R8 were marked and RWs 1 to 5 were examined. Exts. C1 to C 6 were marked as Court Exhibits. According to the appellants, the disputed land comprised in R.S. Nos. 193, 200 and 201 in Meloth Village. Hosdrug Taluk originally belonging to Kodoth tarward in jenm right. There was a suit. O.S. No. 114 of 1936 of the Sub Court, South Canara, for partition of the Kodoth tarward property. In the final decree passed in the suit, the property was allotted to the share of some of the members of the tarward. Karimbil Kunhikoman and Cherippadi Kunhlkannan Nair jointly purchased the property between 1947 and 1955 under various registered documents. By Ext. P3 partition deed dated 16-7-1964. Kunhikoman and Kunhikannan Nair divided the property. Ext. P3 partition deed refers to the partition suit of the year 1936 and the subsequent assignment in favour of Kunhikoman and Kunhikannan Nair. One half of the properly was set apart to the share of Kunhikoman and the other to the share of Kunhikannah Nair by Ext. P3. In Ext. the properly is described as "Elathottam", As per Ext. P1 patta karar dated 16-7-1964. the half share of Kunhikannan Nair was taken on least; by Kunhikoman. That lease was renewed by Ext. P2 on 28-8-1967. In the records, relating to O.S. No. 114 of 1936, viz., Exts. P25 to 27 and P32 to P36, the property had been shown as "Elamala".
7. In the counter statement filed by the respondents in O.S. No. 170 of 1976, it is stated as follows : "Out of 910.54 acres claimed by the petitioner about half portion was seen planted with crops and about half portion was left without any cultivation prior to 10-5-1971." It also referred to the affidavit dated 25-11-1978 filed in support of an interlocutory application in O.A. No. 170 of 1976 before the Forest Tribunal. It was stated that out of 910.54 acres claimed by the petitioner about half portion was seen planted with crops and about half portion was left without any cultivation prior to 105-1971. Therefore, according to the appellants, the half portion referred to as planted with crops is the one half of 910.54 acres which is the petition schedule property. Originally when the matter was pending before the Tribunal, Tribunal held that the disputed property was planted with cardamom prior to 10-5-1971 and was not private forest on the appointed day and therefore, the property is not liable to be vested in the Government.
8. The appeal was filed before this Court As already stated it was remanded to the Forest Tribunal for fresh consideration. This is what this Court held :
"The question before the Tribunal was whether the entire extent of land (910.54 acres) had vested in Government under the provisions of the Kerala Private Forests (Vesting and Assignment) Act. It appears that the Forest authorities and the Custodian had exempted about 50% of the area as not vested and that the real dispute related only to the remaining 50%.
2. On the basis of revenue receipts and Ext. P1 to P3, the Tribunal held that no part of the land had vested in the Government in M.F.A. No. 454 of 1979 the State and the Custodian attack this conclusion."
This Court further held as follows : "The view taken by the Tribunal that demand or acceptance of land tax after the commencement of Act 26/71 would be relevant for deciding the question of vesting, cannot be supported in the light of the decision of this Court. Exts. P1 to P3 no doubt show that the whole area was a cardamom plantation during the period from 1964 to 1967, but that again cannot be conclusive, as the real existence in 1971, The commission report and the minutes of the Tribunal's local inspection were unfavourable to the appellants claim. Counsel for the applicant however contends that there were other documents, including proceedings under Act I of 1964, to establish the claim. Oral evidence was also there. There are not fully referred to in the order under appeal. It is siad that two commissioners had earlier reported in favour of the appellant. On a consideration of the entire material on record, we think that the matter requires further examination. The Tribunal's order is accordingly set aside and the matter is remitted to it for further enquiry and for a fresh decision, after giving due opportunity to the parties to adduce further evidence."
9. Sri. T.P. Kelu Nambiar, learned senior counsel for the appellants stressed the fact that originally the entire O.A. had been allowed and there was no dispute regarding the half portion of the property. No doubt this Court set aside the order and remanded it back to the Tribunal. According to the learned counsel, since there was an admission on the part of the respondents that half portion of the property was private forest, the only jurisdiction of the Tribunal was to find out whether the remaining half was also private forest. But that the Tribunal has held is that the entire property is private forest. According to us, the contention of the senior counsel cannot be accepted. The respondents contended that half of the portion is not forest. But the Tribunal held that the entire portion was forest. When the matter was set aside and remanded, there was no finding that half the portion was forest. Hence, it was necessary for the Tribunal to enquire into the question whether the land was forest. There was no finding by the Appellate Court to consider whether the remaining half portion was forest or not. Hence, we reject this preliminary argument.
10. The main ground taken by the learned counsel for the appellants is that in the documents the areas have been referred to "Elathottam" and there was cultivation. Learned counsel referred to Exts. P25 to P27 and Exts. 32 to 36 in which the property had been shown as "Elamala". In Ext. P3, the property is described as "(Vernacular matter is omitted)." Ext. P3 states as follows :
Learned counsel referred to the evidence of PW 1, who is the brother of the applicant. He had deposed thus :
"(Vernacular matter is omitted)"
He also referred to the depositions of PWs 3, 4 and 5. But the Tribunal did not believe this. The view taken by the Tribunal is that unless the area was plantation prior to 10-5-1971, it cannot be said that it is a plantation. Learned Advocate General Sri. Ratna Singh appearing for the respondents submitted that the section makes it clear that the Tribunal should be satisfied that the area was plantation on 10-5-1971, According to him, there is no case to show that it was a planatation. Learned Advocate General submitted that if there was extensive cultivation of cardamom in 1048 acres of land it must necessarily find a place in the cardamom registration book. If a person is in possession of 1048 acres of cardamom planted area he must necessarily be having account books to show the income and expenditure, stock registered etc. No book of accounts or receipts are shown regarding sale. So also the Advocate General submitted that to cultivate such a big area one has to purchase large quantities of fertiliser and pesticides. No record or receipt is placed before the Courts to show such fertilisers and pesticides have been purchased by the petitioner. He also referred to the notice of this Court that the burden is on the applicant to show that it continued to be cultivated. It was contended on behalf of the appellants that when once a concession has been made by the Government, it cannot go back from it. It is in these circumstances that we have to hear and dispose of the appeal. The only question is whether the disputed area is a plantation immediately before 10-5-1971.
11. The appeal is filed under Section 8A of the Act. The Act came into force on 10-5-1971. Section 3 of the Act states that 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 (2) and (3), with effect on and from the appointed clay, 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. This date has been fixed as 10-5-1971. But exemption has been given with regard to certain areas under Sections 3 and 4. Section 8 is the section which deals with settlement of disputes. Section 8 says thus :
"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 land 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 forms 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."
So far as this case is concerned, the main question to be decided is whether the petition schedule property was a private forest or not on 10-5-1971.
12. The first contention taken by the learned counsel for the appellants is that since in the counter affidavit filed by the respondents there is an admission that half portion of the property has been planted, this admission can be taken and at least half portion should have been treated as private forest, vested in the Government. We went through the counter affidavit filed by the respondents. The counter affidavit is filed by one Ranganathan, Divisional Forest Officer. In the beginning of paragraph No. 2, it is stated that out of 910.54 acres claimed by the petitioner about half portion was seen planted with crops and about half portion was left without any cultivation prior to 10-5-1971. In paragraph 5, it is stated as follows : "There is no surveyed boundary or any sort of demarcated boundary on that ground to differentiate this 910.54 acres of land in Rs. 193 and 200 of Malom Village. This land forms extensively part of other vested forest lands which were also under his possession prior to 10-5-1971 and in the absence of definite boundary on the ground for this 910.54 acres, he claims vested forests as well as his part of estate. There art-many patches of ever green forests ranging from 2 to 20 acres in extent amidst this estate and the petitioner claims these patches in the guise of fire belt, which has been demarcated and included in the vested forest. These patches of vested forests contain costly tree growth of different age. The exact area thus demarcated as vested forest can be ascertained only after survey which is in progress." Thus, it cannot be said with definiteness that there was an admission on the part of the respondents regarding vested forests. Further, according to us the dispute in a legislation like the Act which is public legislation cannot be decided on a mere admission of parties. It is for the benefit of the public that the Act has been passed. On a mere admission of a party, the issue cannot be decided. A duty is vested with the Tribunal to find out whether the property has vested or not. No doubt, in assessing the evidence to find out whether there has been vesting of the property, the Tribunal can take into consideration the statement made by the parties. But how far the statement could be accepted depends upon the other evidence adduced in the case. So far as this case is concerned, there is no evidence to show that on the day previous to the appointed day, the land was continuing as a plantation area. No doubt, documents have been produced to show that the area in question was a plantation. Description of the property as"(Vernacular matter is omitted)" had been highlighted to show that it was cardamom plantation. There is evidence in this case to show that in 1967, there was some plantation. Even though the patta karar was produced it can only show that the land was continuing as planatation upto 1967.
13. A Full Bench of this Court in State of Kerala v. Chandralekha, 1995 (2) KLT 152 : (1996 AIHC 4946) (FB), has held that the burden to establish that a property is not a private forest is on the person who prefers the claim. Apart from the reference to Eiathottam in some of the documents, there is no clinching evidence in the form of registration of the plantation as cardamom plantation or documents to show payment of agricultural income tax or other such authoritative documents. The sheet anchor of the arguments of the learned counsel for the appellant is the so called admission in the counter affidavit in the O.P. But that sentence in paragraph 2 if read along with the sentence in para 5 of the same counter will show that there was no such admission. The entire property obtained by the petitioner under Ext. P3 and by Kunhikannan Nair under Ext. PI is included in the schedule to the O.A. It is a portion of this entire property which is said to contain the cardamom plantation according to the counter statement. Both the Commissioner as well as the Tribunal have found that those portions where there is plantation in the petitioner's land are already exempted, Therefore, it is not a case where the entire land obtained by the petitioner is said to have vested in the Government.. The extent of the property in the petition schedule originally is 910.54 acres. It is in this background also that the extent to which the so called admissions can be relied on has to be considered.
14. The learned senior counsel relied on the decision of the Supreme Court in Avadh Kishore v. Ram Gopal, AIR 1979 SC 861. The Supreme Court has held that unless shown to be wrong evidentiary admission shift the burden of proof on the person making them. That decision itself shows that such admissions can be shown to be wrong. It is also to be noticed that under the proviso to Section 58 of the Evidence Act the Court may in its discretion require the facts admitted to be proved otherwise than by such admission. There is similar provisions in Order 8, Rule 5 of the Code of Civil Procedure. There is also enough judicial precedents to the effect that a plaintiff cannot be allowed to avail only those parts of the written statement which is favourable to him. A plaintiff cannot be allowed to dissect a written statement (Sunil Chandra Ghosh v. Hemendra Kr. Deb, AIR 1985 Cat 233, Trikam Jivraj v. State of Gujarat. AIR 1969 Guj 69 : (1969 Cri LJ 409). Ext. R2 proceedings of the Taluk Land Board shows that 910.54 acres of property is shown as private forest in the ceiling case of the petitioner subject to the findings in this case.
15. Learned counsel for the appellants made much of the evidence given by the appellants and some respondents to show that there has been proof to show that the petition schedule property was a plantation. But as rightly held by the Tribunal, except for some oral evidence unsupported by any documentary evidence, there is nothing to show that the property in question was a plantation on 10-5-1971 or before that. This is a case where the appellants claim that 1048 acres of land is a plantation. Normally, one would have expected the evidence to show the income from the plantation. The amount spent on the plantation, the amount spent on the labourers and other documents which are mandatory to be kept by a plantation. No such document is forthcoming, There is no evidence to show that whether any agricultural income tax has been paid for the year in question. Lack of production of these documents creates suspicion in the minds of the deciding authorities as to whether the case set up by the appellants is correct or not.
16. The appellants relied on the commission report, Ext. C5, to show that there are observations in the report to show that portions of the property were planted. Those portions were exempted by the Tribunal. But we endorse the view of the Tribunal that the report cannot be relied on for coming to the conclusion that the property in dispute is not vested property. The mere fact that a person pays tax for the lands does not prove his title to the land. It may he taken as evidence of title along with such other material as is relevant in the matter of proof of title. There is no question of any waiver or relinquishment or estoppel. Learned counsel tried to argue that since till 1967, the property was continuing as estate there is presumption that this continues to be an estate unless it is rebutted. Learned counsel relied on the decision of The Supreme Court in Ainbika Prasad Thakur v. Ram Ekbal Rai, AIR 1966 Supreme Court 605. In that case, it is stated that if a thing or a state of things is shown to exits, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. Basing on this, learned counsel for the appellants argued that this Court presume that the estate was continuing to exist after 1967. We are not able to accept this contention, because so far as the existence of the plantation is concerned, it may depend upon she age of the plantation. If the period is over, it may be necessary to replant and there should be proof with regard to replantation. But no evidence was adduced to show that there was replantation and when the replantation took place. Failure to give such evidence will go to show that there was no such plantation during the period in question.
16A. An attempt was made to show that on the basis of the evidence, the Tribunal also found that some parts are private forest and vested area and at least those parts should have been exempted. The judgment of the Tribunal goes to show that the learned Judge himself has found that it is not possible to say whether those portions form part of the petition schedule property. According to it, those are exempted parts and hence, it cannot be taken into consideration. Here is a case where a very weak oral evidence was given by the appellants. It is not possible for us on the basis of this to conclude that the land was continuing as a plantation. Failure to produce relevant evidence clearly show that the case set up by the appellants is not true.
In the above view of the matter, we don't find any ground to interfere in the matter. Accordingly, the appeal is dismissed.