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STATE OF KERALA vs JOSEPH On 2018-09-25

SUPREME COURT JUDGEMENT

Reportable
INTHESUPREMECOURTOFINDIA
CIVILAPPELLATEJURISDICTION
CIVILAPPEALNo.9912OF2010
StateofKerala&Anr.  .Appellant(s)
VERSUS
Joseph&Anr. Respondent(s)
JUDGMENT
AbhayManoharSapre,J.
1) This  appeal  is  filed  against  the  final  judgment
and  order  dated  03.12.2007  passed  by  the  High
Court  of  Kerala  at  Ernakulam  in  M.F.A.  No.137  of
1989  whereby  the  High  Court  dismissed  the  appeal
filedbytheappellantsherein.
1
2) In  order  to  appreciate  the  short  controversy
involved  in  the  appeal,  it  is  necessary  to  set  out  few
factshereinbelow.
3) The  appellant  is  the  State  of  Kerala.  It  was  the
appellant  before  the  High  Court  whereas  the
respondents  herein  were  the  respondents  in  the
appealoutofwhichthiscivilappealarises.
4) The  respondents  herein  are  the  owners  of  14
acres  of  land  situated  in  Thenkara  Village  of
MannarghatTalukinKerala.This14acreslandwas
part  of  47.35  acres  of  total  land,  which  was
purchased  jointly  by  the  family  members  of  the
respondents  in  the  name  of  the  respondents,  their
fatheranduncles.
5) It  is  the  case  of  the  respondents  that  there
existed  rubber  plantation  on  this  land.  In  addition,
the  respondents  also  are  the  purchaser  of  the  land
planted  Teak  and  other  trees  on  the  land.  It  is  also
2
thecaseoftherespondentsthatapartitionamongst
theirfamilymemberstookplaceasaresultofwhich
out  of  47.35  acres  of  land,  23.5  acres  of  land  was


Reportable
INTHESUPREMECOURTOFINDIA
CIVILAPPELLATEJURISDICTION
CIVILAPPEALNo.9912OF2010
StateofKerala&Anr.  .Appellant(s)
VERSUS
Joseph&Anr. Respondent(s)
JUDGMENT
AbhayManoharSapre,J.
1) This  appeal  is  filed  against  the  final  judgment
and  order  dated  03.12.2007  passed  by  the  High
Court  of  Kerala  at  Ernakulam  in  M.F.A.  No.137  of
1989  whereby  the  High  Court  dismissed  the  appeal
filedbytheappellantsherein.
1
2) In  order  to  appreciate  the  short  controversy
involved  in  the  appeal,  it  is  necessary  to  set  out  few
factshereinbelow.
3) The  appellant  is  the  State  of  Kerala.  It  was  the
appellant  before  the  High  Court  whereas  the
respondents  herein  were  the  respondents  in  the
appealoutofwhichthiscivilappealarises.
4) The  respondents  herein  are  the  owners  of  14
acres  of  land  situated  in  Thenkara  Village  of
MannarghatTalukinKerala.This14acreslandwas
part  of  47.35  acres  of  total  land,  which  was
purchased  jointly  by  the  family  members  of  the
respondents  in  the  name  of  the  respondents,  their
fatheranduncles.
5) It  is  the  case  of  the  respondents  that  there
existed  rubber  plantation  on  this  land.  In  addition,
the  respondents  also  are  the  purchaser  of  the  land
planted  Teak  and  other  trees  on  the  land.  It  is  also
2
thecaseoftherespondentsthatapartitionamongst
theirfamilymemberstookplaceasaresultofwhich
out  of  47.35  acres  of  land,  23.5  acres  of  land  was
allottedtotherespondentsandtheirfather.
6) Aquestionaroseastowhetherthesaid14acres
oflandoutof23.5acresstoodvestedintheStateby
virtue  of  the  provisions  of  the  Kerala  Private  Forests
(Vesting  and  Assignment)  Act,  1971  (hereinafter
referredtoas"theAct")ornot.Sincetherewasalso
a dispute asto whether  the respondents had aright
toremainor/andtoclaimtheirlawfulpossessionon
14acresofland,therespondentsfiledanapplication
underSection8oftheActbeforetheForestTribunal
and  sought  exemption  of  the  said  land  from  the
provisionsoftheActasprovidedtherein.
7) Section  2  (a)  of  the  Act  defines  the  "appointed
day"  to  mean  the  10 th
 day  of  May,1971.  "Owner"  in
relationtoaprivateforestisdefinedinSection2(c)to
3
include  therein  a  mortgagee,  lessee  or  other  person
having  a  right  to  possession  and  enjoyment  of  the
private  forest.  Section  2  (f)  defines  the  term  "private
forest"tomean:
  2.  ( f )(1)  in  relation  to  the  Malabar  District
referred  to  in  sub­section  (2)  of  Section  5  of
the  States  Reorganisation  Act,  1956  (Central
Act37of1956),
( i )anylandtowhichtheMadrasPreservation
of  Private  Forests  Act,  1949  (Madras  Act  27
of  1949),  applied  immediately  before  the
appointeddayexcluding
(A)  lands  which  are  gardens  or  nilams  as
definedintheKeralaLandReformsAct,1963
(1of1964);
(B)  lands  which  are  used  principally  for  the
cultivation  of  tea,  coffee,  cocoa,  rubber,
cardamom  or  cinnamon  and  lands  used  for
any  purpose  ancillary  to  the  cultivation  of
suchcropsorforthepreparationofsamefor
themarket.
Explanation .Lands  used  for  the
construction  of  office  buildings,  godowns,
factories,  quarters  for  workmen,  hospitals,
schools  and  playgrounds  shall  be  deemed  to
be  lands  used  for  purposes  ancillary  to  the
cultivationofsuchcrops;
4
(C)  lands  which  are  principally  cultivated
with  cashew  or  other  fruit­bearing  trees  or
are  principally  cultivated  with  any  other
agriculturalcrop;and
(D)  sites  of  buildings  and  lands  appurtenant
to,  and  necessary  for  the  convenient
enjoymentoruseof,suchbuildings;
( ii )anyforestnotownedbytheGovernment,
to  which  the  Madras  Preservation  of  Private
Forests  Act,  1949,  did  not  apply,  including
waste  lands  which  are  enclaves  within
woodedareas.
(2)  in  relation  to  the  remaining  areas  in  the
State  of  Kerala,  any  forest  not  owned  by  the
Government,includingwastelandswhichare
enclaveswithinwoodedareas.
8) Similarly  Section  3  of  The  Act,  which  is  also
relevantfordisposalofthisappeal,readsasunder:
 3.PrivateforeststovestinGovernment­(1)
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  sub­sections(2)  and  (3),
with  effect  on  and  from  the  appointed  day,
the  ownership  and  possession  of  all  private
forests  in  the  State  of  Kerala  shall  by  virtue
ofthisAct,standtransferredtoandvestedin
theGovernmentfreefromallencumberances,
and the right, titleand interest of the owner
or  any  other  person  in  any  private  forest
shallstandextinguished.
5
 (2) Nothing  contained  in  sub­section(1)
shall  apply  in  respect  of  so  much  extent  of
land  comprised  in  private  forests  held  by  an
owner  under  his  personal  cultivation  as  is
within  the  ceiling  limit  applicable  to  him
under  the  Kerala  Land  Reforms  Act,  1963(1
of1964)oranybuildingorstructurestanding
thereonorappurtenantthereto.
Explanation­For  the  purposes  of  this  sub­
section,  cultivation  includes  cultivation  of
treesorplantsofanyspecies.
(3) Nothing  contained  in  sub­section(1)
shall  apply  in  respect  of  so  much  extent  of
privateforestsheldbyanownerunderavalid
registered  document  of  title  executed  before
the  appointed  day  and  intended  for
cultivationbyhim,whichtogetherwithother
landsheldbyhimtowhichChapterIIIofthe
KeralaLandReformsAct,1963,isapplicable,
doesnotexceedthe extentoftheceiling are
applicable  to  him  under  Section  82  of  the
saidAct.
(4) Notwithstanding  anything  contained  in
the  Kerala  Land  Reforms  Act,  1963,  private
forests  shall,  for  the  purposes  of  sub­
section(2)  or  sub­section(3),  be  deemed  to  be
lands  to  which  Chapter  III  of  the  said  Act  is
applicableandforthepurposesofcalculating
the  ceiling  limit  applicable  to  an  owner,
private  forests  shall  be  deemed  to  be  other
drylandsspecifiedinScheduleIItothesaid
Act.
6
9) Thequestionthataroseforconsiderationbefore
the  Forest  Tribunal  was  whether  the  respondents
casefallsunderSection3(3)oftheActsoastoentitle
them  to  claim  exemption  of their  land measuring 14
acresfromitsvestingintheStateasprovidedunder
the  Act  and  the  other  question  was  what  is  the  true
meaning  of  the  expression  intended  for  cultivation
by  him  occurring  in  sub­section  (3)  of  Section  3  of
theAct.
10) The  Tribunal,  by  order  dated  21.02.1979,
allowedtherespondentsapplicationandgrantedthe
exemptionasclaimedbytheminrelationtotheir14
acresofland.Itwasheldthatfirstly,therespondents
acquired  the  right,  title  and  interest  on  the  land  on
the  strength  of  the  registered  documents  executed
prior  to  10.05.1971  in  their  favour;  Secondly,  the
respondents  acquired  the  land  with  the  intention  to
personally  cultivate;  Thirdly,  the  respondents  had
7
plantedrubberplantationin 3½	  acresoflandand
also  cultivated  coconut,  pepper  and  coffee  in  one
acre;  Fourthly,  this  was  the  only  land  of   the
membersoftherespondentsfamilywhichwasbeing
used  by  them  for  their  personal  cultivation  to  earn
livelihood;  Fifthly,  the  other  members  of  family  were
also  using  their  share  in  the  land  for  doing  rubber
plantation;  Sixthly,  the  respondents  owned  only  the
landinquestionwhichfallswithin theceilinglimits;
and  lastly,  though  the  respondents  scheduled
property isaprivateforestasdefinedunder theAct,
yetinthelightofsevenfindings,thelandinquestion
isnotliabletobevestedintheGovernmentbyvirtue
of exemption  available under Section 3(3) of the Act.
Inotherwords,itwasheldthattherespondentswere
able  to  make  out  a  case  on  facts  as  contemplated
underSection3(3)oftheAct.TheTribunaltherefore,
declaredthelandinquestionasexemptedfrombeing
8
vested  in  the  State.   As  a  consequence  thereof,  the
respondents  were  allowed  to  retain  the  land  in
questionfortheirpersonalcultivation.
11) TheStatefeltaggrievedandfiledreviewpetition
beforetheTribunalunder Section 8­BoftheAct.By
order  dated  24.08.1988,  the  review  petition  was
dismissed.TheStatethenfiledanappealintheHigh
CourtofKerala.Byorderdated16.11.1999,theHigh
Court  allowed  the  appeal  and  set  aside  the  main
orderdated21.02.1979passedbytheTribunal.
12) As  a  result,  the  respondents  application  filed
under  Section  8­B  of  the  Act  was  dismissed.  The
respondents  felt  aggrieved  and  filed  appeal  in  this
CourtbywayofspecialleavebeingCivilAppealNos.
8061­62of2001( Joseph&Anr.  vs. StateofKerala
&Anr., (2007)10SCC414.
13)  By  order  dated  10.05.2007,  this  Court  after
interpretingtherelevantprovisionsoftheActallowed
9
the  respondents  appeals and  while  setting  aside the
order  of  the  High  Court  remitted  the  matter  to  the
High  Court  for  its  fresh  consideration.  (See    (2007)
10SCC414).
14) This  Court  in  Paras  18  and  19  made  the
followingobservations: 
 18.  Several  questions  arose  for
consideration  before  the  High  Court.  The
HighCourtindisputablyhadalimitedroleto
play.  We,  as  at  present  advised,  are  not
inclined  to  accept  the  submission  of  Mr  Iyer
that  sub­sections  (2)  and  (3)  of  Section  3  of
the1971Actwouldoperateinthesamefield.
In  our  opinion,  both  operate  in  different
fields.  However,  on  a  plain  reading  of  the
impugnedorderpassedbytheHighCourt,we
are  of  the  opinion  that  the  High  Court  was
not  correct  in  its  view  in  regard  to  its
construction ofSection3(3) ofthe1971Act.
The  Tribunal,  while  exercising  its  power
under  Section  8  of  the  1971  Act,  had  taken
into  consideration  the  question  which  arose
before  it  viz.  as  to  whether  the  appellants
hereinhadintentiontocultivatethelandon
the  appointed  day.  Appointed  day  having
been  defined  in  the  1971  Act,  the  relevant
aspectwasthesituationasitexistedonthat
day  i.e.  on  10­5­1971.  For  the  purpose  of
attracting  sub­section  (3)  of  Section  3  of  the
1971  Act,  it  was  not  necessary  that  the
entire  area  should  have  been  cultivated  for
10
arriving  at  a  decision  as  to  whether  the
owner  of  the  land  had  the  intention  to
cultivate  or  not.  Also,  it  was  required  to  be
considered  having  regard  to  the  activities
carried  on  by  the  owner  from  the  day  of
purchase  till  the  appointed  day.  For  the  said
purpose, subsequent conductof the ownerof
the  land  was  also  relevant.  Development  of
thelandbyplantationofrubberplantsisnot
in  dispute.  The  Explanation  appended  to
Section  3(2)  of  the  1971 Act clearly suggests
that  cultivation  would  include  cultivation  of
trees  or  plants  of  any  species.  Intention  to
cultivateby the ownerof theland, we think,
has  to  be  gathered  not  only  in  regard  to  the
fact  situation  obtaining  at  a  particular  time
but  also  with  regard  to  the  subsequent
conduct  of  the  parties.  If  the  activity  in
regard  to  cultivation  of  land  or  development
thereof  is  systematic  and  not  sporadic,  the
samealsomaygiveanideaastowhetherthe
owner  intended  to  cultivate  the  land.  The
words  intend  to  cultivate  clearly  signify
that  on  the  date  of  vesting  the  land  in
question  had  not  actually  been  cultivated  in
its  entirety  but  the  purchaser  had  the
intention  of  doing  so.  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.
19.  The  High  Court,  in  our  opinion,  was  not
correct  in  opining  that  for  applying  Section
3(3)  of  the  1971  Act,  the  cultivation  of  the
propertysubsequenttothevestingcannotbe
taken  into  account.  The  High  Court  also  was
notcorrectinarrivingatafindingthatthere
had  been  no  evidence  whatsoever  that  the
11
ownersintendedtocultivatethelandpriorto
10­5­1971.Astheprovisioncontainedinsub­
section  (3)  of  Section  3  of  the  1971  Act
clearly  provides  for  exclusion  of  the
operationofsub­section(1)thereof,thesame
has  to  be  construed  liberally.  So  construed,
the  conduct  of  the  parties  was  a  relevant
fact.  The  High  Court,  in  our  opinion,
therefore  was  not  correct  in  ignoring  the
findingsoftheTribunal.Also,theHighCourt
should  bestow  its  attention  to  the  findings
arrived  at  by  the  Tribunal  having  regard  to
the  limited  nature  of  the  scope  and  ambit  of
appeal  in  terms  of  Section  8­A  of  the  1971
Actand,particularly,inviewofthefactthat
the  order  dated  21­2­1979  had  not  been
appealedagainst.
15) The  matter  was  accordingly  heard  by  the  High
Court  after  remand  with  a  view  to  find  out  as  to
whether thefindingsrecordedbytheTribunalarein
conformity  with  the  law  laid  down  by  this  Court  in
Josephs  case  (supra).   By  impugned  order,  the
State's  appeal  was  dismissed  by  the  High  Court
which  gives  rise  to  filing  of  this  appeal  by  way  of
specialleaveinthisCourtbytheState.
12
16) HeardMr.K.N.Balgopal,learnedseniorcounsel
for the appellants and  Mr. R. Basant, learned senior
counselfortherespondents.
17) Learnedsenior  counsel for  theappellant (State)
mainly  urged  one  point.  It  was  his  submission  that
thecaseoftherespondents(landowners)doesnotfall
under  Section  3  (3)  of  the  Act  and,  therefore,  the
Tribunal  and  the  High  Court  were  not  right  in
granting  exemption  to  the  respondents  from  vesting
oftheirlandinquestionintheState.
18) In  other  words,  the  submission  of  the  learned
counsel  was  that  the  respondents  land  being  a
private  forest"  stood  declared  vested  in  the  State  in
accordancewiththeprovisionsoftheceilinglawand
the  Act  on  an  appointed  day  and  hence  the
respondents  were  not  entitled  to  get  any  benefit  of
exemption  by  taking  recourse  to  Section  3(3)  of  the
Act.
13
19) Learned  counsel  elaborated  this  submission
with  reference  to  the  actual  findings  of  the  Tribunal
in  the  context  of  the  wording  of  Section  3  (3)  of  the
Act  and  especially  the  expression  intended  for
cultivation  by  him  occurring  in  sub­section  (3)  and
contendedthatthefactsfoundbytheTribunaldonot
satisfytheexpressionintendedforcultivationbythe
landowners  and,  therefore,  no  reliance  could  be
placedby therespondents on Section 3(3)ofthe Act
for  claiming  an  exemption  for  their  land  from  being
vestedintheState.
20) In  reply,  learned  counsel  for  the  respondents
supportedtheimpugnedorderandcontendedthatit
doesnotcallforanyinterference.
21) Havingheardthelearnedcounselfortheparties
and  on  perusal of  the  record  of  the  case, we  find  no
meritinthisappeal.
14
22) In  our  opinion,  the  question  as  to  what  is  true
interpretation  of  the  relevant  provisions  of  the  Act
and  especially  Section  3(3)  and  the  other  question
regardingholdingofthelandanditsintendeduseby
therespondents standalready decidedby thisCourt
in  the  earlier  round  of  litigation  in  its  order  dated
10.05.2007  in  Paras  18  and  19  quoted  above.   The
Statecannot, therefore,beallowedtoraisethesame
plea  again  in  the  second  round  of  litigation  after
remand.   This  Court  in  paras  18  and  19  explained
theobjectandpurposeofSection3(3)oftheActand
thenholdingthatsuchprovisionhastobeconstrued
liberally examinedthefactsofthisvery caseandset
asidetheorderoftheHighCourtintheearlierround
of  litigation.   The  remand  of  the  case  to  the  High
Court  was  to  examine  the  issue  in  the  light  of
interpretationmadebythisCourt.
15
23) That  apart,  in  our  view,  the  Tribunal  has
recorded  seven  findings  of  fact  as  set  out  above  in
para  10  while  allowing  the  respondents  application
filed  under  Section  8  and  the  same  were  not
interferedwithbytheHighCourt.
24)  In  our  opinion,  all  the  seven  findings  are
otherwise  found  to  be  based  on  documentary
evidencefiledbytherespondentsandthesamewere
properlyappreciatedbytheTribunalkeepinginview
thetworequirementsofsub­section(3)ofSection3of
the  Act,   namely,  that  the  title  was  derived  by  the
respondents  in relation  to  the land  in  question  prior
totheappointedday,i.e.,10.05.1971andsecond,the
land  in  question  was  found  in  actual  use  by  the
respondents  for  their  personal  cultivation  even  prior
totheappointedday.
25) Inthelightofthesetwofindingsrecordedbythe
Tribunal  on  facts  and  upheld  by  the  High  Court  in
16
the  impugned  order  after  remand,  which  were  not
found  perverse  or  against  any  evidence  or  illegal  in
anyway,wedonotfindanygroundtointerfereinthe
impugnedorder.
26) The  appeal  thus  fails  and  is  accordingly
dismissed.
 
...................................J.
 [ABHAYMANOHARSAPRE]
 .....................................J.
[S.ABDULNAZEER]
NewDelhi;
September25,2018
17

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Judgement Profile

Diary Number 18109 / 2008

Case Number C.A. No.-009912-009912 / 2010

Judgment Date 25-09-2018

Bench HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE, HON'BLE MR. JUSTICE UDAY UMESH LALIT

NISHE RAJEN SHONKER

P. K. MANOHAR

CITED KEYWORDS