IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 389 of 2002()
1. P.T.SREENARAYANAN UNNI,S/O.P.N.MENON,
... Petitioner
2. P.T.SREEKUMARI, D/O. P.N.MENON,
3. P.T.SREEVALSAN UNNI, S/O.P.N.MENON,
4. P.T.SREEDEVAN UNNI, S/O. P.N.MENON,
5. P.T.SREEKUMARAN UNNI,S/O.P.N.MENON,
6. P.T.SREEDEVI, D/O. P.N.MENON,
7. P.T.SREE BALA, D/O. P.N.MENON,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. CUSTODIAN OF VESTED FORESTS,
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent :SPL.GOVT.PLEADER
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :01/01/2008
O R D E R
J.B.KOSHY & K.HEMA, JJ.
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M.F.A.NO.389 OF 2002 (C)
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Dated this the 1st day of January, 2008
J U D G M E N T
KOSHY,J.
Appellant is a partnership firm consisting of seven
partners. They filed an application under Section 8 of the
Kerala Private Forest (Vesting and Assignment) Act (in short
‘Vesting Act’), for a declaration that 79 acres 68.5 cents of land
in Survey No.186/1A1 of Kunnathidavaka Village described in
the schedule is not a private forest and is not vested in the
Government. The partnership firm purchased 100 acres of land
from one Phathumma as seen from Ext.A47 document. In the
document, it is stated that the estate was sold for cultivation of
cardomom, rubber, coffee etc. It is also stated that earlier it
was cultivated with such plantations. But that was destroyed.
It was convinced that they can re-cultivate the same. Ext.A47
document is dated 15.5.1967 much prior to the enactment of
Vesting Act. The fact that scheduled property is held by the
MFA.389/2002 2
appellant, by registered title deed of the property is not
seriously disputed. Kerala Private Forest (Vesting and
Assignment) Act 1971 came into force with effect from
10.5.1971, the appointed day under the Act. The petitioner
firm obtained the title of the property before the relevant date.
All private forests are vested with the State under Section 3(1)
of the Vesting Act. Whether the land was demarcated and
notified or not, if the land is a private forest, unless it is
exempted, is vested with the Government under Section 3(1).
Section 3(2) provides exemption if the land is under personal
cultivation of the owner. Section 3(3) gives further exemption
that if the land is owned by a valid registered document
executed before the appointed day and intended for cultivation
and if the extent of land is below ceiling area under Section 82
of the Land Reforms Act. The tribunal found that there was no
evidence of cultivation of the land on the appointed day and
burden is on the appellants to prove that land is under personal
cultivation to claim exemption under Section 3(2). Various
Commissioners reports (Exts.C1, C2 and C4) produced show
that there was no evidence of cultivation. Ext.C1 report was
MFA.389/2002 3
dated 27.11.1993. Ext.C2 report was in 1998 and Ext.C4 was
in 1999. It is the contention of the appellant that after the Act
came into force they were not allowed to cultivate the land and
the forest department destroyed cultivation and that is why the
Commissioners were not able to find out any evidence of
cultivation. Reminiscence of cultivation was also not seen by
the Commissioners. But Ext.C4 report shows that part of the
land was ready for cultivation and part of the land had no
plants at all. There is also no evidence of wild trees or forest
trees in the area other than planted accasia on part of the land.
One boundary of the land was vested forest and others are
private lands. Since there was no evidence of personal
cultivation on the appointed day the appellants are not entitled
to the benefit under Section 3(2). We agree with the above
findings of the tribunal. Then the question is whether
appellants are entitled to exemption under section 3(3) as they
had intention to cultivate the land on the appointed day and
they were holding the land by a registered deed. Appellants
produced registration from the Rubber Board for cultivating 10
acres of land. The date of issue was 29.12.1967. The planting
MFA.389/2002 4
licence was given to plant the land on 31.12.1967 much prior
to appointed day (10.5.1971). Ext.A44 is the new rubber
planting licence. Petitioner also relied on Ext.A45 which is an
application for planting coffee. But there is no evidence to
show that such application was filed before the Coffee Board. It
is only a copy of application. After considering Ext.A44 tribunal
found as follows:
“To say that license was given to plant 10
acres of land with rubber is one thing and to say
that 10 acres of land was cultivated with rubber
is a different thing. The applicants have no case
that they have cut and removed those rubber
trees. Had 10 acres of land was cultivated with
rubber in pursuance of Ext.A44 there ought to
have been some rubber trees on the ground to
evidence that planting. There is no case for the
applicants there exists some rubber plants which
were planted in pursuance of Ext.A44. In my
opinion Ext.A44 shows the intention of the
applicants to cultivate 10 acres of land with
rubber.”
Therefore the tribunal found that there was intention to plant
10 acres of land with rubber that, on the appointed day land
was not cultivated. The claimants also produced various
exhibits, Exts.A1 to A37 to show that they spent large amount
MFA.389/2002 5
for planting the same through their Supervisor. It was found
by the tribunal that their intention is to cultivate 10 acres of
land. There is no case for the appellant in holding land in
excess of the land ceiling area under the Land Reforms Act.
They were holding the land by a registered deed executed prior
to the enactment of the Vesting Act. Hence, we are of the
opinion that in the normal course, they would have been
allowed 10 acres of land as exempted land which the
appellants had intention to cultivate before the appointed day
under the Act. In this connection we also refer to the decision
in Joseph v. State of Kerala (2007 (3) KLT 144 (SC)).
Apex Court held as follows:
“Such intention on the part of the purchaser
can be gathered from his conduct in regard to
the development of land for making it fit for
cultivation preceding to and subsequent to the
date of vesting.”
Here intention can be gathered by development of property
and obtaining the planting licence, specially made for planting
etc.
MFA.389/2002 6
3. Now we will again come to the Commissioners report.
Commissioners report and plan shows that the petitioner is in
possession of the land which is marked as ‘B’. According to
PW1, they were in possession of 20 and additional acres of land
and the Commissioner’s marked it as ‘B’ portion in yellow
colour which is only 8.2250 hectors, that means, 20 acres and
311/2 cents. It has come out in evidence that out of the above
land, 12.5 cents of land was already surrendered as excess
land. According to the Commissioners, 20 acres and 311/2
cents marked as ‘B’ (coloured yellow) in Ext.C5 Plan which is in
possession of the appellants is inclusive of the above excess
land surrendered. Therefore, excluding the land surrendered
as excess land, they are in active possession of 7.85 acres. So
the petitioners had intention to cultivate 10 acres of the land at
the time of appointed day. But after excluding the surrendered
land as the excess land, balance is 81.5 acres of land in the
plot marked as ‘B’ in Ext.C5 Plan. Hence against a claim for
79 acres and 68.5 cents of land, claimants are entitled to get
exemption of 7 acres and 81.5 cents only and it cannot be
MFA.389/2002 7
disputed that they had intention to cultivate the above land
and they had registered document in their favour even before
the Act came into force. Hence they are entitled for a
declaration that 7 acres and 85 cents of land in the portion
marked as ‘B’ (out of 20 acres and 311/2 cents coloured portion
after deducting surrendered land of 12.5 acres) are exempted
under Section 3(3) of the Vesting Act. Appeal is accordingly
partly allowed.
J.B.KOSHY, JUDGE
K.HEMA, JUDGE
prp
J.B.KOSHY & K.HEMA, JJ.
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M.F.A.NO.389 OF 2002 ()
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J U D G M E N T
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1st January, 2008