Dismissed

Mohammed Ali v. State

Kerala HC26 Feb 2016MFA (FOREST)/75/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the appeal by appellants who challenged the Forest Tribunal's dismissal of applications seeking declarations that their properties were not private forests. The Court found the Tribunal correct in holding the appellants failed to prove cultivation prior to 1971.

What did the court decide?

The appeal was dismissed, the Tribunal's order was affirmed, and no costs were awarded.

Mohammed Ali Vs State — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR &

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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FRIDAY, THE 26TH DAY OF FEBRUARY 2016 / 7TH PHALGUNA, 1937

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MFA.No. 75 of 2010

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AGAINST THE ORDER IN OA No.38, 39 & 40 OF 2002 of FOREST TRIBUNAL, KOZHIKODE DATED 31.10.2009

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APPELLANTS/APPELLANTS/APPLICANTS.

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1 MOHAMMED ALI, S/O.KONGATH HYDROSE,

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ALANELLUR DESOM, MANNARKAD, PALAKKAD.

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2 HYDER ALI, S/O.KONGATH HYDROSE, ALANELLUR DESOM, MANNARKAD, PALAKKAD.

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3 SHOUKATH ALI, S/O.KONGATH HYDROSE, ALANELLUR DESOM, MANNARKAD, PALAKKAD.

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BY ADV.SRI.M.C.JOHN

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RESPONDENTS:

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1. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.

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2. THE CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN FOREST COMPLEX, OLAVAKODE, PALAKKAD.

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SRI.M.P.MADHAVANKUTTY SPL GP (FORESTS)

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THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T.Ravikumar & Mary Joseph, JJ.

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M.F.A (Forest Act) No. 75 of 2010

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Dated this the 26^th day of February, 2016

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JUDGMENT

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Mary Joseph, J.

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The appellants are applicants in O.A.Nos.38, 39 & 40 of 2002 on the files of the Forest Tribunal, Kozhikode (for short 'the Tribunal' for easy reference). The Tribunal has passed a common order dismissing all O.A.s on 31.10.2009. Aggrieved by the said common order, the applicants have approached this Court in this appeal.

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The claimants are brothers. The properties scheduled in the applications originally belonged in Jenmom to Kuthiravattom Kottayil Third Sthanam. From there the property was outstanding as Kanam right to Knjunni Thampuran @ Damodaran of Kuthiravattom Kottayil Family. On his demise, the properties were devolved on his legal heirs. A suit for partition was filed by the members of the family before the Sub Court, Ottapalam as O.S.No.30/1963. The property stands on lease in the name of one Sebastian who entrusted

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the property to one Mohammed, son of Abu on an oral arrangement of lease. Sri.Mohammed, on account of his possession of item No.145 in Survey No.235/A12 was the 62^nd defendant in the suit. On 10.03.1967, a preliminary decree for partition was passed by the Sub Court, Ottapalam in the suit. Item No.145 in the possession of defendant No.62 was not partitioned.

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Sri.Mohammed purchased the leasehold right as per document No.3404/1973 of S.R.O. Mannarkad. From the said Mohammed the applicants purchased portions of properties as per registered assignment deeds and since then they are holding the respective properties in absolute enjoyment of the same to the exclusion of others. The claim was that, much earlier to the commencement of the MPPF Act, the property was developed into plantation by Sebastian, and was replanted by Sri.Mohammed. Rubber was planted during 1969 and therefore, it would not come within the purview of private forests as defined under the Act and therefore, is not liable to be vested in the Government. The areas

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are not notified as envisaged under Rule 2A of the Vesting and Assignment Rules. In such circumstances, that O.A.Nos.38, 39 & 40 of 2002 were moved before the Tribunal seeking for a declaration that the property is not a private forest since it is not part of the MPPF area and also for the relief under Section 3(2) and 3(3) of the Act.

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The Tribunal after appreciation of the entire evidence brought on record by both sides, dismissed all the three applications on 27.10.2004 by a common order. The aggrieved claimants filed MFA No.69/2005 before this Court and by judgment dated 28.08.2006 the common order under challenge was set aside and the case was remanded back to the Tribunal for consideration afresh of the question whether the land was a private forest as governed by the MPPF Act. The Tribunal did not accept the specific contention of the applicants before it that the area was planted with rubber trees originally by the predecessor of the claimants prior to 10.05.1971, the appointed day and that the

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existing plantation is the replantation done by the applicants and arrived at a finding that MPPF Act is applicable as the property is part of a larger extent.

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Being aggrieved by the said finding and consequent dismissal of the original applications filed by them, the claimants are now in appeal alleging that the Tribunal went wrong in holding so.

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Sri.M.C.John, the learned counsel and

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Sri.M.P.Madhavankutty the learned Government Pleader advanced arguments on behalf of the appellants and the respondents.

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It is contended by the learned counsel that while remanding the case for fresh consideration by judgment dated 28.08.2006 in MFA No.69/2005, the only point directed to be re-considered by the Tribunal was whether the scheduled properties are private forests as governed by the MPPF Act. According to the counsel, the claimants moved an application before the Tribunal as I.A.No.91/2007 for directing the production

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of the register maintained by the DFO and District Collector wherein entries are incorporated regarding the permissions granted to the parties holding properties under Section 3 of the MPPF Act for clear felling/selection felling of trees. The authorities concerned did not produce the same in compliance of the direction and the reasoning of the Tribunal that the applicants are bound to show that such registers are maintained and in the event of their failure to do so, the authorities cannot be found fault with is totally perverse. According to the learned counsel, rather than forming an opinion to that effect, the Tribunal ought to have drawn adverse inference against it that registers were not maintained by them.

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The argument secondly raised was that the MPPF Act will not be applicable to the disputed property as the area involved is larger than 100 acres. The counsel pointed out to us on the strength of the evidence as record that the scheduled properties have been excluded from the process of partition for twin reasons, the first was that the plantation was leased out and the sale of the

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right to slaughter tap the rubbers planted in the O.A. schedule properties having been noticed by the Forest Department. It is contended by the counsel that the Tribunal overlooked those aspects while appreciating the evidence and accordingly the finding is totally perverse.

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It is urged by the counsel that had certain points been adverted to and the evidence is appreciated in the proper perspective, the Tribunal would not have been instrumental in passing the judgment under challenge.

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On the contrary, the learned Public Prosecutor contended that the Tribunal was correct in passing the impugned common order of dismissal which is well supported by the evidence on record. According to him the Tribunal is perfectly justified in passing the common order under challenge and interference of any nature is totally uncalled for.

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In the backdrop of the rival arguments advanced by the counsel representing the respective parties, this Court has

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appraised the evidence to see whether the Tribunal is erred in its appreciation of evidence or overlooked any valid pieces of evidence adduced by the claimants to enter into a finding against them.

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The claimants adduced oral evidence as PW1 and documentary evidence as Exts.A1 to A20. The respondent mounted the box and deposed as RW1 and got examined a witness as RW2. Exts.B1 to B4 produced and marked in evidence by the respondent were also formed part of the record.

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Except Ext.A20 dated 10.03.1967, all other documents marked in evidence as Exts.A1 to A19 are related to years succeeding 10.05.1971, the appointed day, the crucial date decisive of the issue involved in the case in question. Claimant as PW1 testified the sequence of transactions to which the scheduled properties have been subjected to prior to the reaching of the same in his hands. Ext.A1 is produced by him which is nothing but a document bearing No.3404/1973 by which title was conferred on

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Mohammed, the allegedly immediate predecessor in interest of him of the properties scheduled in the Original Applications. Admittedly of the applicants, the respective extent of property claimed to be in their possession have been purchased by each of them from Sri.Mohammed. As evidenced from document No.3404/1973, the title to the property having been owned and possessed by Sri.Mohammed only in the year 1973, the transactions that conferred title to the respective properties on the claimants could have been performed only in years succeeding 1973. Exts.A8, A9 and A10 are allegedly title deeds conferring title on each of the claimants with reference to the respective shares. A perusal of those documents would make it clear that the conveyance between Mohammed and the respective claimants was in the year 1984. It is clear from the oral evidence of PW1 that in O.S.No.30/1963, the suit for partition, the receiver appointed by the court was administrating the property and after the partition of the same, it was given on lease to one Mr.Sebastian, the immediate

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predecessor in interest of Sri.Mohammed for cultivation and ever since then, there were plantations. The specific plea of claimants was that the scheduled properties and the adjoining properties were cultivated lands and developed with improvements by the respective owners in possession of the property, even prior to 10.05.1971, the appointed day. The further plea was that Sri.Mohammed purchased the scheduled properties with intention to cultivate the same and subsequently the applicant purchased intending so.

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The evidence tendered by PW1 when evaluated would impress us that it suffers from instability and inconsistency. During chief examination PW1 maintained consistency with the pleas in the original application but, during cross examination, deposing in divergent terms against what was transpired in chief examination, PW1 established himself as an incredible witness so long as his claim is concerned. At one instance, PW1 turned ignorant of the year in which possession of the property was

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obtained by Mr.Sebastian on leasehold arrangements. PW1 had also gone to the extent of stating in cross examination that the scheduled properties have been originally cultivated with rubber plantation by Sri.Mohammed. It is well supported by Ext.A1 that the entire scheduled properties have been purchased by Sri.Mohammed in the year 1973. With reference to the properties scheduled in O.A. No.38/2002, the advocate commissioner narrated in Ext.C1 page 11 . “Ùøß¼ßMGßµ ÕÙµ{ßW 18 ÕV×¢ dÉÞÏ¢ çÄÞKßAáK 326 ùÌîVåÎøBZ ©Ií. ¿ß ÎøB{áæ¿åøIí ÍÞ·B{á¢ ¿ÞMß¢·í æºÏñá ÄàVKßGáIí µâ¿ÞæÄ 10 ÎáÄW 20 ÕV×¢ dÉÞÏ¢ ©U 25 µÖáÎÞÕáµ{á¢ 10 ÕV×¢ dÉÞÏÎáU ÎâKí ÎÞÕá¢ 5 ÕV×¢ dÉÞÏÎáU øIí ÎGßÏá¢ 8 ÕV×¢ dÉÞÏÎáU 3 ÉïÞÕá¢ 5 ÕV×¢ dÉÞÏÎáU 8 çÄAá¢ ©Ií.”

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With reference to the properties scheduled in O.A. No.39/2002, the advocate commissioner narrated in Ext.C1 page 12. “ Ùøß¼ßMGßµ ÕÙµ{ßW 18 ÕV×¢ dÉÞÏÎáU 480 ùÌîV ÎøBZå©Ií.å¿ß ùÌîV ÎøB{áæ¿ øIí ÍÞ·Õá¢ ¿ÞMßBí æºÏñí ÄàVKÄÞÏß µÞÃáKá.åµâ¿ÞæÄ 10 ÎáÄW 20 ÕV×¢ dÉÞÏ¢ ©U 48 µÖáÎÞÕá¢ 5 ÕV×¢ dÉÞÏÎáU 4 ÎGßÏá¢ 5 ÕV×¢ dÉÞÏÎáU 8 çÄAá¢ µÞÃáKá.åÙøß¼ß ÉGßµ ÕÙµ{ßW ¥BßBÞÏß ¥ ¿ßAÞ¿áµZ ©Ií.”

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With reference to the properties scheduled in O.A. No.40/2002, the advocate commissioner narrated in Ext.C1 page 13 . “ÉGßµ ÕÙµ{ßW 18 ÕV×¢ dÉÞÏÎáU 415 ùÌîV ÎøBZ ©Ií. ¿ß ÎøB{áæ¿ §øáÍÞ·Õá¢ ¿ÞMß¢·í æºÏñí ÄàVKÄÞÏß µÞÃáKá. µâ¿ÞæÄå10 ÎáÄW 15 ÕV×¢ Õæø dÉÞÏ¢ ©U 231 µÕáBáµ{á¢ ØáÎÞV 20 ÕV×¢ dÉÞÏ¢ ©U 7 æÄBáµ{á¢ 10 ÎáÄW 20 ÕV×¢ ÕæøådÉÞÏ¢ ©U 13 µÖáÎÞÕáµ{á¢ µÞÃáKá. §ÄßÈí ÉáùæÎ 5 ÕV×¢ dÉÞÏ¢ ©U 10 ÎGßÏá¢å©Ií.åÕÙµ{ßW ¥¿ßAÞ¿áµZ µÞÃáKá.”

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As already noticed, except Ext.A20, all other documents available in evidence are related to years after 1971. Ext.A20, though related to 1967, has no relevancy in the matter of proving existence of cultivation prior to or from 1971. The crucial aspect in the circumstance is to see whether the oral version of PW1 that the plantation was there in the scheduled properties prior to 1971 or even thereafter is substantiated by the documentary evidence on record. PW1 had also deposed that the rubber trees in the scheduled properties are aged fifteen years. Therefore, the fifteen years' period has to be counted back from 1994 and then the year of plantation could only be in the year 1979, i.e. 8 years after 1971.

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It follows from the versions of PW1 that he has no definite case to lent support to his claim. A commission was taken up at the instance of PW1 and Ext.C1 is the commission report available in evidence on record. Ext.C1 being a piece of evidence having the feature of independence and therefore requires appraisal in the context to see whether it lend support to the claim of the claimants.

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It is provided in paragraph 6 that in scheduled properties of 2 acres 84 cents with reference to which O.A.No.38/2002 was filed, 326 rubber trees of age 18 years were noted. Similarly in 2 Acre 35 cents of property with reference to which O.A.No.39/2002 was filed, 480 rubber trees of the age 18 years were noted. In 3Acre 43 cents of property with reference to which O.A.40/2002 was filed, 415 rubber trees of the age 18 years were noted. In paragraph 6 of the Commission Report, reference is also made about presence of cashew trees, mutty and teak trees. But, the age of all those trees are shown as varying from 3 to 20

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years. It is the specific case of the appellant that there were rubber plantation in the property prior to taking possession thereof. But, no materials are forthcoming in respect of that. The appellant as PW1 has also stated that he had replanted the rubber in the petition scheduled property in the year 1979. As per Ext.C1, the rubber trees found in the scheduled property was of the age 18 years. As per Ext.C1, the Commissioner inspected the scheduled properties on 15.1.2004. If that be so, it can be inferred therefrom that the rubber trees found in the scheduled property might have been planted there 18 years back, i.e.in the year 1986. Therefore, Ext.C1, in no way supports the claim of the appellant that he had replanted the rubber in the scheduled property in the year 1979. Even if the claim of the petitioner is accepted for a moment, that also would not support him in establishing his case that the petition schedule properties were not private forests for the sole reason of want of evidence to establish that cultivation with rubber plantation was available in the scheduled properties even prior to

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10.05.1971, the appointed day or stated otherwise for a claim of the nature to sustain, the claimants have to establish by evidence that the schedule properties have been under cultivation with rubber plantation from 1971 onwards.

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Now it is relevant to see whether the documents marked in evidence as Exts.A4,A5,A6 and A7 lend any support to the claim raised by the claimants. Ext.P4 bears the date 26.5.1962. Ext.P4 is a letter issued from the Regional Office of the Rubber Board to Sri.K.Muhammed, who is none other than one among the claimants. The contents of the document, would make it clear to us that it is an intimation given from the Regional Office of the Rubber Board to the applicant regarding the grant of subsidy permit. The reference made in the letter is relevant in the context and is extracted:-

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It is clear from the evidence that the appellant has been

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granted subsidy permit under the Rubber Plantation Development

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Scheme for an extent of 4.60 Hectares of property held by him, based on his application dated 3.1.1981. It is clear on a reading of the contents that the permit was granted to him in the year 1980. It is relevant to notice that the date it bears is 26.05.1962. The date is not printed but handwritten. Once the reference in the letter is of an application dated 03.01.1981 and the permit of the year 1980, Ext.P4 cannot be accepted as a document dated 26.05.1962. The date 26.05.1962 being not in the printed form, gives an impression that it was manipulated by the petitioner to suit his claim. In a letter dated 26.05.1962, a reference about application filed at a later point of time is impossible. Therefore, Ext.P4 lost credence and is liable to be discarded. Exts.A5,A6 and A7 are letters issued from the Regional Office of Rubber Board at Palakkad to the appellant, but all those documents are related to rubber plantation in 4.60 Hectares of property held by the appellant but those being related to his permit bearing No.PD/PG/529/1980(A), it is discernible from those documents that the appellant had only

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rubber plantation in the property from 1980.

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In the case on hand the appellant has thoroughly failed to establish that his property is not a private forest. On the contrary, evidence adduced by him indicates that the property was not cultivated with rubber plantation prior to 1971 as claimed by the petitioner. The appellant therefore failed to establish that the scheduled properties are not private forest liable to be vested in Government.

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In the light of the discussion as hereinabove made, we are constrained to hold that the finding of the Tribunal is not tainted with illegality, impropriety or perversity calling for interference.

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In the result, this appeal stands dismissed. No orders as to

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costs.

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Sd/- C.T.Ravikumar, Judge.

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Sd/Mary Joseph, Judge.

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MBS/

Mohammed Ali v. State

Case brief

What is this about?

What did the court decide?

Mohammed Ali v. State

Case brief

What is this about?

What did the court decide?

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