M.J. Mathew vs State of Kerala and Another

Krishnamoorthy, J.—This appeal by the claimant arises out of a proceeding u/s 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short the Act). The petition was filed before the Forest Tribunal for a declaration that 8 acres of land (3 hectares 24 ares) in Survey No. 1742 of Sholayar Village has not vested in the Government as a private forest under the Act. The Appellant-claimant alleged in the application that he obtained the property from Mannarghat Moopil Sthanam under an oral lease of 1961, the rent being Re. 1 per acre. He planted cardamom in 5 acres and got registration under the Cardamom Act. He was doing fugitive cultivation in the balance 3 acres and the entire property was being cultivated by him before 10th May 1971. He further alleged that he had made preparations for the construction of a house in the property, that he is having land only below the ceiling area under the Land Reforms Act and that the above land will not come within the M.P.P.F. Act and it is not a private forest. But on 25th July 1979 the forest officials came and obstructed the claimant from carrying on agricultural operations and hence he filed the present application u/s 8 of the Act for a declaration that the land has not vested in the Government.

The State and the Custodian of Vested Forests opposed the application contending that the property is part of Varadi Mala coming under the M.P.P.F. Act, that it has vested in the Government and that the claimant has no title or possession over the same. They further contended that no cultivation was raised in the land prior to 10th May 1971, that it is bounded on four sides with vested forests and contains forest trees like vatta, thani etc. aged 30 years. On these allegations they prayed for a dismissal of the application.

On these pleadings evidence was adduced by the parties and originally the application was allowed by the Forest Tribunal against which the State filed an appeal M.F.A. No. 50 of 1981 before this Court. By judgment, dated 23rd March 1983, this Court set aside the order of the Tribunal and remanded the case with the following observations:

On a consideration of the evidence in the case, we feel that the Respondent has not satisfactorily established that the land had ceased to be private forest prior to 10th May 1971 to entitle him to claim the exemption. The case should have been founded on better evidence. In view of this view of ours, the Respondent''s counsel makes a request that an opportunity may be given to his client to call fresh evidence to prove satisfactorily his case that the land in question does not come within the purview of Act 26 of 1971. We feel that this request can be granted in view of the indifference shown by the Appellants before the Tribunal.

After remand, P.W. 2 was examined and the file relating to Ext. A-4 cardamom registration certificate was produced as Ext. X-1.

The Forest Tribunal under the present order found that there is no valid lease in favour of the claimant and that he has no title over the property. The Tribunal also came to the conclusion that there is no satisfactory evidence to prove that the land in question was cultivated before 10th May 1971 and consequently held that the land has vested in the State under the Act. The appeal is by the claimant against the above order.

Before this Court the Appellant-claimant challenged both the findings by the Tribunal. The Tribunal came to the conclusion that the claimant has no title to the property on the ground that no permission u/s 3(1) of the M.P.P.F. Act was obtained for granting a lease. It is an admitted fact that no permission was obtained from the Collector under the above Act and the oral lease claimed by the claimant is invalid. But learned Counsel for the Appellant-claimant contended that he is a tenant u/s 7-D of the Kerala Land Reforms Act and as such even though there is no permission for the granting of a lease u/s 3(1) of the M.P.P.F. Act, he will be a deemed tenant u/s 7-D of the Land Reforms Act. Section 7-D of the Land Reforms Act reads as follows:

7-D. Certain persons occupying private forests of unsurveyed lands to be deemed tenants.- Not with standing anything to the contrary contained in Section 52 or any other provision of the Transfer of Property Act, 1882, or any other law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969 of the land of Anr. situate in Malabar, to which the provisions of the Madras Preservation of Private Forests Act, 1949 (XXVII of 1949), were applicable on the 11th day of April, 1955 or which was unsurveyed on that date, shall be deemed to be a tenant as if he or his predecessor-in-interest was continuously in occupation of such land for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967.

The scope of Section 7-D came up for consideration before the Supreme Court in K.M. Mathew v. Hamsa Haji 1987 (2) KLT 1. Construing the above section the Supreme Court held:

On a careful scrutiny of the aforesaid provisions, it becomes abundantly clear that the intenton of the legislature was to grant protection only to persons whose possession had a lawful origin in the sense that they had either bona fide believed the lands to be Government''s lands of which they could later seek assignment or had taken , the lands on lease from persons whom they bona fide believed to be competent to grant such leases or had come into possession with the intention of attorning to the lawful owners or on the basis of arrangements like varam etc., which were only in the nature of'' licences and fell short of a leasehold right. It was not within the contemplation of the legislature to confer the benefit of protection on persons who had wilfully trespassed upon lands belonging to Ors. and whose occupation was unlawful in its origin. The expression ''in occupation'' occurring in Section 7-D must be construed as meaning ''in lawful occupation''.

It is clear from the above decision that in order to claim the benefit u/s 7-D, the occupation of the person shall be lawful. In this case, the claim of the Petitioner is that he got an oral lease of the property in 1961. Apart from the oral evidence of the claimant as P.W. 1, the other evidence adduced by the claimant to prove the lease is Ext. A-1, a rent receipt said to have been executed by the landlord. Ext. A-1 is dated 25th June 1962. The case of the claimant is that the rent fixed was Rs. 1 per acre and the rent for the schedule property will be Rs. 8 per annum. Ext. A-1 shows that a payment of Rs. 32 was made by the claimant as rent which is for a period of four years. If the land was taken on lease only in 1961, it is ununderstandable how he paid Rs. 32 in 1962. His explanation for the payment of Rs. 32 is that he was required by the landlord to pay arrears of rent payable by his former tenant also. It is not as if a premium has been paid for the lease; but the receipt clearly shows that it is arrears of rent. It is too much to believe that a tenant would have paid the arrears of rent payable by the former tenant and in the circumstances it is difficult to accept the rent receipt Ext. A-1 as a genuine one. The landlord is not examined in the case nor is there any other evidence to prove the oral lease set up by him. In these circumstances, the case of oral lease of 1961 set up by the Appellant-claimant cannot be accepted. If the oral lease is found against then there is no explanation for his possession, if at all he has any, and it cannot be said to be lawful. The payment of revenue under Exts. A-2 and A-3 are in 1973, long after the date of vesting and no reliance can be placed on them to prove the lease or possession. In the circumstances, we feel that he is not entitled to claim protection u/s 7-D of the Land Reforms Act.

Even otherwise, the claimant has set up a definite oral lease of 1961. It is well-settled by a series of decisions of this Court that a person who has set up a specific lease and failed to establish that plea cannot turn round and contend that he should be treated as a deemed tenant under the Land Reforms Act (see Kunhambu Nair v. Kunhammartu Amma 1973 KLT 1084, Kaliyannan v. Narasimha Iyer 1974 KLT 286, and Yesodha v. Sankunni 1984 KLT Short Notes 57). In view of the above, we hold that the claimant is not a tenant coming u/s 7-D of the Land Reforms Act.

The Appellant contended that even if he is not a deemed tenant u/s 7-D, as a person in possession of the land he is entitled to maintain an application u/s 8 of the Act. But the learned Government Pleader contended that a person merely in possession without any right to possession is not entitled to maintain an application under the Act. It is not necessary to finally decide that question, if the land in question will not come under any of the exceptions mentioned in Section 2(f) of the Act. Whoever be in possession, a private forest will vest in the Government unless the land comes within any of the exceptions mentioned in Section 2(f) of the Act. The claim of the Appellant is that the land is exempt in view of the fact that it was cultivated with cardamom and other fugitive cultivation before 10th May 1971.

Now we shall consider the question as to whether the Appellant has proved the above fact. According to the Appellant, out of the 8 acres of land 5 acres was planted with cardamom before 10th May 1971 and the balance 3 acres was cultivated with fugitive crops. For proving the fact of cardamom cultivation in 5 acres of land, reliance was placed on Ext. A-4 dated 30th June 1971, a registration certificate issued by the Tahsildar under the Cardamom Act. In M.F.A. No. 50 of 1981, this Court held that the above certificate and the other evidence produced by the applicant are not sufficient to prove that the land was cultivated with cardamom before the appointed day. After remand, the claimant summoned the file relating to Ext. A-4 which was marked as Ext. X-1 series. P.W. 2 who was the Revenue Inspector at that time and who prepared Ext. X-1(a) report in pursuance to which Ext. A-4 certificate was granted, was also examined. So, as rightly observed by the Tribunal, the correctness of Ext. A-4 will depend upon the evidence of P.W. 2 and his report Ext. X-1(a). The Tribunal has discussed the evidence of P.W. 2 and his two reports Exts. X-1(a) and X-1(b) and has come to the conclusion that they do not represent the true facts. It is clear from the evidence of P.W. 2 that he has not visited the petition schedule property, but some other property on the representation pf the claimant. The boundaries of the property as mentioned by him are different from the petition schedule property. P.W. 2 has even given a report Ext. X-1 (b) stating that the land in question does not come under the M.P.P.F. Act, while admittedly it will come under the above Act, Ext. X-1(a) shows that he was shown an M.R. receipt dated 8th June 1965 which is not the one produced by the Appellant as Ext. A-1. The Tribunal also suspected the correctness of Exts. X-1(a) and X-1 (b) as they were prepared in an unduly hasty manner. He has not given in his report the age of the cardamom plants except saying that they might have been planted in 1968-69. No data is available as to how he came to that conclusion. No notice was issued by him to the forest authorities or the Cardamom Board, as his visit was admittedly after 10th May 1971. P.W. 2 did not find any cultivation in the surrounding, areas whereas according to P.W. 1 the surrounding areas were cultivated lands. On the basis of these discrepancies the Tribunal came to the conclusion that it is clear that Ext. X-1(a) report was prepared by P.W. 2 only on the representation made by the Appellant and that he did not take care to verify the correct facts and the identity of the property. It is also pertinent to note that P.W. 2 was under suspension at the time of his examination for dereliction of duty. In view of the above, we agree with the finding of the Tribunal that no reliance can be placed on Ext. A-4 certificate which was admittedly issued after 10th May 1971 to come to the conclusion that the land was planted with cardamom before that date. Regarding the balance 3 acres, there is absolutely no evidence to prove any sort of cultivation. In view of our finding that the land in question was not cultivated before 10th May 1971 it will not come under any of the exceptions mentioned in Section 2(f) of the Act and it will vest in the Government. In the circumstances of the case, we do not think it necessary to resolve the controversy as to whether a person in possession, without title is entitled to maintain an application u/s 8 of the Act.

Coming to the exceptions u/s 3(2) or 3(3) of the Act, it is clear that the Appellant is not entitled to claim exception as he has no right to possession over the land to become an owner, nor is he holding the land under a valid registered document. In the light of the above findings, we confirm the finding of the Tribunal that the land in question has vested in the Government as a private forest under the Act.

In the result, we find no merit in the appeal and we dismiss the same, but, in the circumstances, without any order as to costs.