{"id":226361,"date":"2010-06-29T00:00:00","date_gmt":"2010-06-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mrs-k-c-padmakshy-vs-state-of-kerala-on-29-june-2010"},"modified":"2018-12-06T07:50:24","modified_gmt":"2018-12-06T02:20:24","slug":"mrs-k-c-padmakshy-vs-state-of-kerala-on-29-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mrs-k-c-padmakshy-vs-state-of-kerala-on-29-june-2010","title":{"rendered":"Mrs.K.C. Padmakshy vs State Of Kerala on 29 June, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Mrs.K.C. Padmakshy vs State Of Kerala on 29 June, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMFA.No. 11 of 2005()\n\n\n1. MRS.K.C. PADMAKSHY, D\/O. BHARGAVI AMMA\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, NOTICE FOR WHOM\n                       ...       Respondent\n\n2. CUSTODIAN OF VESTED\n\n                For Petitioner  :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice A.K.BASHEER\nThe Hon'ble MR. Justice P.Q.BARKATH ALI\n\n Dated :29\/06\/2010\n\n O R D E R\n<\/pre>\n
                 A.K. Basheer & P.Q. Barkath Ali, JJ.\n<\/p>\n
                – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                         M.F.A. No. 11 of 2005-E\n<\/p>\n
               – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                 Dated this the 29th day of June, 2010
\n                                    Judgment
\nBasheer, J:\n<\/p>\n
      This appeal filed under Section 8A of the Kerala Private<\/p>\n
Forests (Vesting and Assignment) Act 1971 is directed against the<\/p>\n
order passed by the Forest Tribunal, Kozhikode dismissing the<\/p>\n
application filed by the appellant.\n<\/p>\n
      2. Appellant filed the application before the Tribunal under<\/p>\n
Section 8(3) of the Act contending that the petition schedule<\/p>\n
property, having an extent of 100 acres, is not a private forest and<\/p>\n
that it is a cardamom plantation. The specific case of the appellant<\/p>\n
was that the petition schedule property came into her possession in<\/p>\n
the year 1965,        though the         registered        assignment deed was<\/p>\n
executed in her favour by the previous owner only in the year<\/p>\n
1969. Thus, on the appointed day viz., May 10, 1971 the plaint<\/p>\n
schedule property was a full fledged cardamom plantation.<\/p>\n
Alternatively it was prayed by the appellant that in the event of her<\/p>\n
prayer for the benefit under Section 8(3) was not found to be<\/p>\n
tenable, appellant would be at least entitled to re-claim 20 acres<\/p>\n
out of the plaint schedule property under Section 3(3) of the Act.<\/p>\n
           3.   The Original Application was initially dismissed by<\/p>\n
the   Tribunal by order dated 5\/4\/2001.                      The said order was<\/p>\n
MFA.11\/2005.                    : 2 :\n<\/p>\n
challenged before this Court in MFA.928\/2001. It was noticed by<\/p>\n
this Court that the Tribunal had found that the appellant had got<\/p>\n
title over the property. But since the land was governed by the<\/p>\n
Madras (Preservation of Private Forests) Act, it was a private<\/p>\n
forest. This Court held that since the title had been found in favour<\/p>\n
of the appellant,the Tribunal ought to have considered the question<\/p>\n
whether the plaint schedule property was in fact cultivated with<\/p>\n
cardamom as contended by the appellant. It is on record that an<\/p>\n
Advocate Commissioner was appointed by this Court in the above<\/p>\n
appeal. The Division Bench disposed of the appeal directing the<\/p>\n
Tribunal to consider the report of the Advocate Commissioner<\/p>\n
regarding ” “personal cultivation by the appellant”.<\/p>\n
          4. The impugned order has been passed by the Tribunal<\/p>\n
after considering the report of the Advocate Commissioner and the<\/p>\n
oral testimony of Pw.1, one of the sons of the appellant and Rw.1<\/p>\n
the Forest Range Officer, Alathur. The Tribunal has found that<\/p>\n
the evidence available on record would not be sufficient to hold<\/p>\n
that the plaint schedule property was planted with cardamom on or<\/p>\n
before May 10, 1971. The Tribunal therefore held that the plaint<\/p>\n
schedule property did in fact vest in the Government as on the<\/p>\n
crucial day when Act 1971 was enacted.\n<\/p>\n
MFA.11\/2005.                    : 3 :\n<\/p>\n<\/p>\n
         5. We have heard Sri.P.N.K.Achan learned counsel who<\/p>\n
appears for the appellant and Sri.Prakash, learned Senior Govt,<\/p>\n
Pleader (Forests) at length. We have also perused the lower court<\/p>\n
records.\n<\/p>\n
         6. It is contended by the learned senior counsel that the<\/p>\n
Tribunal has proceeded at a tangent while deciding the crucial<\/p>\n
issue which was directed to be considered by this Court while<\/p>\n
remitting the case back to the Tribunal. It is pointed out by the<\/p>\n
learned senior counsel that the fact that the plaint schedule<\/p>\n
property was cultivated with cardamom was never in dispute,<\/p>\n
especially in the light of the pleadings and the other materials that<\/p>\n
were brought on record when the case was considered by this<\/p>\n
Court in the earlier round of litigation. What had to be decided<\/p>\n
further was only whether the plaint schedule property was planted<\/p>\n
with cardamom on or before the crucial date . It is true that the<\/p>\n
Advocate Commissioner had not considered the above aspect<\/p>\n
when he inspected the property. As is revealed from the report of<\/p>\n
the Advocate Commissioner, the only two issues which he was<\/p>\n
directed to consider were:\n<\/p>\n
             “(a) The nature and extent of cultivation of<\/p>\n
            cardamom in the OA schedule property and<\/p>\n
MFA.11\/2005.                   : 4 :\n<\/p>\n<\/p>\n
            (b) Whether the respondents have removed<\/p>\n
            any cardamom plants or whether there is any<\/p>\n
            attempt on the part of the respondents for<\/p>\n
            removing the cardamom plants in the area<\/p>\n
            OA schedule property.”\n<\/p><\/blockquote>\n
Learned senior counsel points out that the report of the<\/p>\n
Commissioner was accepted by this Court and the application filed<\/p>\n
by the respondents to set aside the report was dismissed. The<\/p>\n
Advocate Commissioner in his report had stated thus:<\/p>\n
                   “..I could see cardamom plants spread<\/p>\n
                   over    the entire area of the O.A.<\/p>\n
                   Schedule property. In areas where it is<\/p>\n
                   level and plain, it is abundant. In<\/p>\n
                   steep and precipitous areas the plants<\/p>\n
                   are very scarce. The plants seem to<\/p>\n
                   have been planted; not sporadic or<\/p>\n
                   haphazard.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
The Commissioner further stated thus:\n<\/p>\n
                   “…I examined a few plants at its<\/p>\n
                   roots. The roots are aged. It withers.\n<\/p>\n
MFA.11\/2005.                  : 5 :\n<\/p>\n<\/p>\n
                  Then it sprouts. Due to neglect and<\/p>\n
                  abandonment, the plants being       ill-<\/p>\n
                  nourished, ill-maintained, its growth<\/p>\n
                  is stunted; yet another factor that has<\/p>\n
                  impaired the growth of the plants is<\/p>\n
                  the sweep and fast spreading, lush<\/p>\n
                  growth of reeds all through the area.”<\/p>\n<\/blockquote>\n
Placing heavy reliance on the above observations made by the<\/p>\n
Advocate Commissioner, it is contended by the learned senior<\/p>\n
counsel that the Tribunal was wholly unjustified in relying on<\/p>\n
some stray sentences of Pw.1 to hold that the cardamom plants<\/p>\n
which the Commissioner had noticed in the property were not<\/p>\n
cultivated or  planted on or before the appointed day. While<\/p>\n
conceding that the evidence of Pw.1      may not be satisfactory<\/p>\n
enough, since as on the appointed day Pw.1 was only a minor, it is<\/p>\n
submitted by the learned senior counsel that the failure of the<\/p>\n
appellant to adduce better evidence may not be allowed to stand in<\/p>\n
her way to substantiate her case. He submits that the appellant is<\/p>\n
prepared to examine her Power of Attorney Holder who had been<\/p>\n
looking after the property since 1965. Learned senior counsel<\/p>\n
MFA.11\/2005.                   : 6 :\n<\/p>\n
further submits that interest of justice demands that such an<\/p>\n
opportunity be given to the appellant,      especially since it has<\/p>\n
already been found that the appellant has got title over the property<\/p>\n
and also since it has been found that the petition schedule property<\/p>\n
is planted with cardamom. According to the learned counsel, the<\/p>\n
only question that remains to be decided is whether           on the<\/p>\n
appointed day the property stood planted with cardamom or not.<\/p>\n
Therefore learned senior counsel prays that appellant may be<\/p>\n
granted a further opportunity to “complete” the evidence.<\/p>\n
         7. Per contra, it is contended by Sri. Prakash, learned<\/p>\n
Special Government Pleader that         the Tribunal was wholly<\/p>\n
justified in dismissing the application,       especially since the<\/p>\n
appellant had totally failed to establish that it was a full fledged<\/p>\n
cardamom plantation as contended by him. He points out that the<\/p>\n
appellant did never have a case that she had obtained a licence that<\/p>\n
is envisaged for plantation of cardamom under the relevant statute.<\/p>\n
The appellant also did not have a case that the plaint schedule<\/p>\n
property was ever maintained as a plantation by employing<\/p>\n
workers or by carrying out such activities for the upkeep and<\/p>\n
maintenance of the said plantation. If in fact the appellant had<\/p>\n
been doing so, some documents would have been available with<\/p>\n
MFA.11\/2005.                    : 7 :\n<\/p>\n
her. It is further pointed out by the learned Government Pleader<\/p>\n
that the report of the Advocate Commissioner gives no clue as to<\/p>\n
the time when the cardamom plants were planted. Therefore the<\/p>\n
entire burden was on the appellant to establish that these plants<\/p>\n
were planted prior to the appointed day. Having failed to do so, it<\/p>\n
is too late in the day for the appellant to pray for a further<\/p>\n
opportunity.\n<\/p>\n
          8. In this context learned Government Pleader invites<\/p>\n
our attention to a decision of their Lordships of the Supreme Court<\/p>\n
in Jagadambal v. The Southern Indian Edn. Trust & Ors. (AIR<\/a><\/p>\n
1988 SC 103). It is true that in the above decision it has been held<\/p>\n
that a case cannot be remanded to the trial court to enable one of<\/p>\n
the parties to make good their lapse.\n<\/p>\n
          9. We have carefully perused the judgment of the Apex<\/p>\n
Court referred to above. We are afraid the factual matrix available<\/p>\n
in this case is totally different from what was available in the<\/p>\n
reported case. As has been noticed already, the crucial question to<\/p>\n
be decided is whether as on the appointed day, the plaint schedule<\/p>\n
property was planted with cardamom or not. Undoubtedly the<\/p>\n
appellant did not adduce any specific evidence with regard to that<\/p>\n
aspect. The Tribunal did notice that the report of the<\/p>\n
MFA.11\/2005.                   : 8 :\n<\/p>\n
Commissioner unambiguously indicated that the plaint schedule<\/p>\n
property was in fact planted with cardamom. But the Tribunal<\/p>\n
“discarded” the report merely for the reason that the evidence of<\/p>\n
Pw.1 was    not at all satisfactory. The Tribunal observed that<\/p>\n
during May 1971, Pw.1 was hardly aged 14 or 15 and therefore he<\/p>\n
did not have competence to speak about the state of affairs as it<\/p>\n
then existed. The Tribunal further observed that the two elder<\/p>\n
brothers who were admittedly majors at that time might have been<\/p>\n
better witnesses. Anyway we do not propose to make any further<\/p>\n
observation on that aspect.\n<\/p>\n
         10. Having regard to the entire facts and circumstances<\/p>\n
of the case we are satisfied that the appellant can be afforded a<\/p>\n
further   opportunity;   but it can only be on terms.      We are<\/p>\n
persuaded to take the above view particularly since it has been<\/p>\n
admittedly found that the appellant has got title over the property<\/p>\n
and also that the plaint schedule property was found to have been<\/p>\n
planted with cardamom as revealed from the report of the<\/p>\n
Advocate Commissioner.\n<\/p>\n
         11.      Keeping in view all the above          facts and<\/p>\n
circumstances the order of the Tribunal is set aside. The case is<\/p>\n
remanded to the court below on condition that the appellant pays a<\/p>\n
MFA.11\/2005.                  : 9 :\n<\/p>\n
sum of Rs.25,000\/- as cost to the respondents. Cost shall be paid<\/p>\n
by the appellant to the respondents on or before August 4, 2010,<\/p>\n
failing which this order will stand recalled. If the cost is paid, the<\/p>\n
Tribunal shall reconsider the matter and pass fresh orders in<\/p>\n
accordance with law, after affording sufficient opportunity to the<\/p>\n
appellant to examine her Power of Attorney Holder or such other<\/p>\n
competent witnesses. It will be open to the respondents also to<\/p>\n
adduce further evidence, if so advised.\n<\/p>\n
         12.   The parties shall appear before the Tribunal on<\/p>\n
August 10, 2010.\n<\/p>\n
         The order of injunction passed by this Court during the<\/p>\n
pendency of this appeal shall remain in force for a further period<\/p>\n
of two months from today.\n<\/p>\n
         The Registry shall send back the lower court records to<\/p>\n
the Tribunal forthwith.\n<\/p>\n<\/p>\n
                                     A.K. Basheer<\/p>\n
                                         Judge.<\/p>\n
\n\n\n                                    P.Q. Barkath Ali\nan.                                       Judge.\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Mrs.K.C. Padmakshy vs State Of Kerala on 29 June, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM MFA.No. 11 of 2005() 1. MRS.K.C. PADMAKSHY, D\/O. BHARGAVI AMMA … Petitioner Vs 1. STATE OF KERALA, NOTICE FOR WHOM … Respondent 2. CUSTODIAN OF VESTED For Petitioner :SRI.P.N.KRISHNANKUTTY ACHAN(SR.) For Respondent :GOVERNMENT PLEADER […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-226361","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMrs.K.C. 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