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Judgment
Sathish Ninan, J.
The Original Application seeking declaration that the application schedule property is not vested with the State under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short, “the Vesting Act”), was dismissed by the Tribunal. The applicants are in appeal.
The application schedule is, 57 cents of property situated in Sy. Nos.15/1 and 15/4 of Kodenchery Amsom and Desom. The property belongs to the petitioners in equal shares, by virtue of Exts.A1 to A4 sale deeds during the period 2006-07 in favour of the first applicant, and under Exts.A5 to A9 sale deeds of the year 2013 in favour of the second applicant. The applicants claimed that the properties have been under the personal cultivation of the applicants and their predecessors.
The Tribunal held that the applicants failed to prove that as on the appointed day(10.05.1971) the property was under their personal cultivation, and accordingly dismissed the OA.
We have heard Sri.P.Chandrasekhar, the learned counsel on behalf of the appellants-applicants and Sri.Bijo Francis, the learned Special Government Pleader (Forests) for the respondents.
We are required to analyse whether there are sufficient materials to find that as on the appointed day (10.05.1971) the application schedule property was under the personal cultivation of the predecessor-in-interest of the present applicants.
Section 3 of the Vesting Act reads thus :-
“3.Private forests to vest in Government.-(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 sub-sections (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 of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
(2)Nothing contained in sub-section (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 of 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation.- For the purpose of this sub section, “cultivation” includes cultivation of trees or plants of any species.
(3)Nothing contained in sub-seciton (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling.”
We are presently concerned with Section 3(2) above. The basic document of title of the applicants is Ext.A20. It is a mortgage deed dated 11.07.1933. It is a possessory mortgage. It refers to the existence of a shop building in the property. It further stipulates for payment of “purappad pattam”, meaning, payment of share of profits from the produce/improvements in the property.
Ext.A21 is a Sale Deed dated 12.05.1953 whereunder, one half right over Ext.A20 property was conveyed by its holder. Therein it is recited that the building and other improvements in the property got gutted in fire in the year 1934.
The remaining one half right was conveyed by its holder, under Ext.A22 Sale Deed dated 07.09.1961. In Ext.A22 the nature of the property is recited as "അ..പപ" for "അസസ്ഥിര പപഞ ". In C.N.Jolly v. State of Kerala (2022 KER 56680) as per judgment dated 18.10.2022 this Court had considered the nature of the property described as "അസസ്ഥിര പപഞ ". It was held thus:
“The definition of 'punja' has already been extracted herein above from the Law Lexicon. 'Punja' lands are dry lands on which cereals and pulses are cultivated and not necessarily paddy. 'Sthira punja' and 'asthira punja' can be roughly transliterated as 'stable and unstable punja lands' which again is with reference to perennial water sources and intermittent availability of water; which makes the cultivation stable or unstable depending upon the availability of water.”
Therefore it is evident that it is, land fit for cultivation.
Ext.A23 is the Sale Deed dated 05.05.1971 is the further conveyance of Exts.A21 and A22 property. Ext.A22 makes reference to "കപഴസ്ഥികക്കൂർസസ " in the property, which was also reckoned for fixing the sale consideration. It also refers to payment of "പപറപപ്പാടസ ". Therein also, the nature of the property is described as "അ..പപ". In Malayalam-English Dictionary by Dr.Hermann Gundert, the word "പപറപപ്പാടസ " is translated as “net produce”. Similarly in the book "ശബസബ്ദ സപ്പാഗരര " published by DC Books, it is described as "വസ്ഥിളവസ്ഥിൽ നസ്ഥിനപര ജനസ്ഥികസ പണമപ്പായയപ്പാ ചമയമപ്പായയപ്പാ കകപ്പാടപകപന പപ്പാടര ", indicating that it is the rent payable to the Jenmi for having leased out the property for cultivation.
To find out whether the property was under personal cultivation as on the appointed day(10.05.1971), the best evidence is Ext.A23 Sale Deed dated 05.05.1971, which is five days prior to the appointed day. In the said document there are sufficient indications to find that the property was under cultivation on the appointed day. Ext.A20, the basic document of the year 1933 also, as noted earlier, suggests that the property was under cultivation. Though Ext.A21 sale deed mentioned about the destruction of the shop room and the other improvements in the property, by passage of time (20 years approx.) the property has been restored.
The materials as above prima facie indicates that the property was under the personal cultivation of the predecessors of the applicants as on the appointed day. In the absence of any material to enter a contrary finding, it can only be held that as on the appointed day the property was under personal cultivation of the predecessors of the applicants.
Though the learned Government Pleader attempted to raise an argument disputing the identity of the property, we find that the contention cannot be sustained. Before the Tribunal, the application schedule was properly identified by a Commissioner, who prepared the sketches marked as Exts.C1(a) and C1(b), produced along with Ext.C1 report. Therein, the application schedule property was sufficiently identified. No objection is filed by the respondents to the Commissioner's Report. The Commissioner is not examined. In the light of the above, the challenge against the identification is only to be negatived, and we do so.
On the above discussions we find that the OA schedule property is liable to be declared as exempted from vesting under the Vesting Act.
In the result, the appeal is allowed. It is declared that the application schedule property, as identified in Ext.C1 report and sketches, is excluded from vesting under Section 3(2) of the Vesting Act.