Judgment · High Court

BY ADV.SRI.NAGARAJ NARAYANAN, SPECIAL GOVT.PLEADER THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON

02.02.2024, THE COURT ON 19.02.2024, DELIVERED THE FOLLOWING: R.P.No.1046 of 2023 MFA(Forest) No.157 of 2012 - 2 -

O R D E R Dated, this the 19th February, 2024 C. Jayachandran , J. The appellant in M.F.A(Forest) No.157/2012 is the review petitioner; and the judgment dated

13.12.2022 in the said appeal is sought to be reviewed, essentially on three grounds: The first ground is that only the properties in old Survey numbers 72, 74, 75, 82 & 83 were notified under Section 3(1) of the Kerala Private Forests(Vesting and Assignment) Act, 1971 ('Vesting Act', for short) and that the petition schedule property, comprised in old Survey No.79/6, was not notified, as could be seen from the periphery sketch, wherefore, the scheduled property is not a private forest and the judgment is liable to be reviewed on that ground. Secondly, the title deed of the review petitioner's predecessor, a registered document bearing R.P.No.1046 of 2023 MFA(Forest) No.157 of 2012 - 3 - No.1780/1937, was produced before the Forest Tribunal, which, however, was not marked. The said document was not reckoned by the Forest Tribunal, or for that matter by the Division Bench, which, if reckoned, would have substantiated the petitioner's claim for exemption under Section 3(3) of the Vesting Act. Lastly, the claim of the review petitioner that the schedule property is a rubber plantation, has not been properly considered in the judgment under review. In this regard, the review petitioner placed reliance upon a Commissioner's report, which found 230 rubber trees, of the age of about 25 years, in the property.

Heard Sri.R.Ramdas, learned counsel for the review petitioner and Sri. Nagaraj Narayan, learned Special Government Pleader (Forest). R.P.No.1046 of 2023 MFA(Forest) No.157 of 2012 - 4 -

As regards the first ground, we notice that the same is a completely new plea/ ground, which is not even pleaded in the Original Petition, which precludes us from considering the same for the first time in the review petition. Evidence in respect of a plea, which is not canvassed, cannot be of any avail, for which reason, we are not inclined to look into the periphery sketch sought to be relied upon by the review petitioner.

The second ground is in the context of a title deed of the review petitioner's predecessor of the year 1937, which, though produced, has not been marked and considered. As regards this ground, we notice that insofar as vesting under Section 3 is concerned, the title of the party is of little impact. Vesting takes place automatically on the appointed day. The title is relevant only in the context of exemption under R.P.No.1046 of 2023 MFA(Forest) No.157 of 2012 - 5 - Section 3(3) of the Vesting Act, which speaks of holding the property as its owner, with an intention to do cultivation. Even if the title deed, which is now sought to be relied upon, is considered, the same would only take care of the ownership component of Section 3(3). Insofar as the intention component as regards cultivation, there is no proof forthcoming. The issue has been discussed in the judgment of the learned Tribunal, as also, in the judgment of this Court, sought to be reviewed. The intention of the person holding the property as an owner as on the appointed day is what which matters. Neither the predecessor in interest of the review petitioner, who was allegedly holding the property as on the appointed day, nor anybody claiming under him, was examined by the review petitioner in proof of such intention, if any. The reasons as to why the so called independent witness, PW2, cannot be R.P.No.1046 of 2023 MFA(Forest) No.157 of 2012 - 6 - believed has already been dealt with, by the Tribunal, as also, by the Division Bench of this Court and hence not repeated.

What remains is the third ground with respect to the claim based on rubber plantation. This contention is claimed on the basis of the Commissioner having found 230 rubber trees, aged around 25 years, in the scheduled property; for reason of which finding itself, the contention is liable to be rejected, as well. The Commissioner inspected the property on 24.02.2011 and filed the report on 17.03.2011. 25 years reckoned from that date would only take us to 1986. In the context of an exclusion under Section 2(1)(i)B, or for that matter, an exemption under Section 3(3), the appointed day, 10.05.1971, is the relevant date. In such circumstance, the rubber trees, the existence of which can be traced only from 1986 - R.P.No.1046 of 2023 MFA(Forest) No.157 of 2012 - 7 - as per the age found by the Commissioner - is of little avail. The third ground is also liable to be repelled accordingly.

We find no ground to review the judgment in M.F.A(Forest) No.157/2012, with the result, the instant Review Petition will stand dismissed. Sd/- ANU SIVARAMAN, JUDGE Sd/- C.JAYACHANDRAN, JUDGE