STATE OF KERALA AND ANR. versus MOHAMMED BASHEER on 22 January 2019

[2019] 1 S.C.R. 477

STATE OF KERALA AND ANR.

v.

MOHAMMED BASHEER

(Civil Appeal Nos. 10075-10076 of 2014)

JANUARY 22, 2019

[S. ABDUL NAZEER AND DEEPAK GUPTA, JJ.]

Kerala Land Reforms Act, 1963 – s.72(K) and 102 –Respondent filed petition in the Forest Tribunal for settlement ofdispute in relation to the land in question inter alia on the groundthat the land is not a private forest as defined u/s.2(f) of the 1971Act and it did not vest in the government u/s.3 of the 1971 Act andthat the Land Tribunal issued certificate of purchase in favour ofthe respondent, as he was found to be the cultivating tenant inpossession of the said land – Appellant-State contended that theland vested in the government u/s.3 of the 1971 Act and is underthe custody of the Forest Department since then – Petition dismissed –Challenge by Respondent before High Court, allowed – On appeal,held: Sub-s.(2) of s.72K of the 1963 Act states that the certificate ofpurchase issued by Land Tribunal u/sub-s.(1) shall be conclusiveproof of the assignment to the tenant of the right, title and interestof the landlord and the intermediaries, if any – Land Tribunalinitiated suo motu proceedings, after obtaining information that thecultivating tenant had been in possession – Land Tribunal initiatingproceedings in favour of the cultivating tenant would be consideringthe possession of a tenant as on the said date which is far earlierthan the 1971 Act – Possession and title under the certificate ofpurchase have to relate back to a date prior to the date of vestingunder the 1963 Act, i.e. 01.04.1964 – Therefore, there is no questionof vesting of the land in the Government under the 1971 Act whichcame into force subsequent to the date of 1963 Act – Certificate ofpurchase was issued by the Land Tribunal, u/sub-s.(1) of s.72K ofthe 1963 Act – No appeal was filed u/s.102 of the 1963 Actchallenging the said certificate either by the Government or anyother person – Thus whatever right, title and interest, the landlordhad in the land, was assigned in favour of the respondent underthe certificate of purchase – Respondent is the owner of the land as

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Ahe has legal title to hold the said land – Further, land in question isexempted from vesting in the State u/sub-s.(2) of s.3 of the 1971 Act– Kerala Private Forests (Vesting and Assignment) Act, 1971 – s.2,3 – Kerala Land Reforms (Vesting and Assignment) Rules, 1970 –Evidence Act, 1872 – s.4.

BWords & Phrases – ‘own’ – Meaning of – Discussed.

Dismissing the appeals, the Court

HELD: 1.1 The Kerala Private Forests (Vesting andAssignment) Act, 1971 (KPF Act) has been enacted to providefor the vesting in the Government of private forests in the StateCof Kerala, and for the assignment thereof to agriculturists andagricultural labourers for cultivation. Section 3 in this Actprovides for the vesting of all private forests in the StateGovernment free from all encumbrances. But by virtue of sub-sections (2) and (3), two categories of lands are exempted orDexcluded from the application of the provision for vesting. Theappointed day for the purpose of Section 3 is 10.5.1971, which isclear from Section 2(a) of the KPF Act. [Para 9][483-C-D; 484-C-D]

1.2 Kerala Land Reforms Act, 1963 received the assent ofEthe President on 31.12.1963. Sub-section (1) of Section 72K ofthe Land Reforms Act states that as soon as may be after thedetermination of the purchase price under Section 72F or thepassing of an order under sub-section (3) of Section 72MM, theLand Tribunal shall issue a certificate of purchase to the cultivatingtenant, and thereupon the right, title and interest of the landownerFand the intermediaries, if any, in respect of the holding or partthereof to which the certificate relates, shall vest in the cultivatingtenant free from all encumbrances created by the landowner orthe intermediaries, if any. [Paras 11, 14][484-F-G; 485-E-F]

1.3 Sub-section (2) of Section 3 of the KPF Act provides forGthe exemption of the private forest from vesting. The appointedday for the purpose of Section 3 is 10.5.1971, which is clear fromSection 2(a) of the KPF Act. Sub-section (2) of Section 3 statesthat the land comprised in private forest held by an owner underhis personal cultivation is exempted from vesting, if the ceilinglimit under the Kerala Land Reforms Act is not exceeded. TheH

land in question measures about 2 acres. It is not the case of theappellants that the land exceeds the ceiling limit under the KeralaLand Reforms Act. The expression ‘held by the owner under hispersonal cultivation’ contained in sub- section (2) of Section 3 ofthe KPF Act is crucial. To bring the land under the exemptedcategory, the claimant should hold the same as an owner and thatit should be under his personal cultivation. ‘To own’ is to havegood legal title to hold and possess the property. Black’s LawDictionary, Ninth Edition defines the word ‘own’ as ‘to rightfullyhave or possess as property; to have legal title to’. When theenactment enjoins that any evidence would be treated as aconclusive proof of certain factual situation or legal hypothesis,the law would forbid other evidence to be adduced for the purposeof contradicting or varying the aforesaid conclusiveness. [Paras9, 17, 18][484-B-C; 486-H; 487-A-C]

1.4 In the instant case, the land in question is jenmam land.The Land Tribunal initiated suo motu proceedings under Rule 5of the Kerala Land Reforms (Vesting and Assignment) Rules,1970, after obtaining information that the cultivating tenant hadbeen in possession, obviously on a report of the revenueinspector. It is evident from Section 74 of the Land Reforms Actthat any tenancy after 01.04.1964 is prohibited. Any tenancycreated after that date is invalid. The Land Tribunal initiatingproceedings under Section 72B in favour of the cultivating tenantwould be considering the possession of a tenant as on the saiddate which is far earlier than the KPF Act. Possession and titleunder the certificate of purchase have to relate back to a dateprior to the date of vesting under the Land Reforms Act, i.e.01.04.1964. Therefore, there is no question of vesting of theland in the Government under the KPF Act which has come intoforce subsequent to the date of Land Reforms Act. The certificateof purchase issued under the Land Reforms Act is attributed withstatutory conclusiveness as regards ownership/title under sub-section (2) of Section 72K. The certificate issued by a competentLand Tribunal after finding that the tenant was in possession ofthe property as a cultivating tenant is a conclusive proof ofpossession as well. In the instant case, certificate of purchasehas been issued in favour of the respondent after enquiry by the AB

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ALand Tribunal. Though the State Government is not a party tothis order, there was no bar for it to challenge this order underSection 102 of the Land Reforms Act. No appeal was filedchallenging the certificate of purchase either by the Governmentor by any other person. Thus, the certificate of purchase hasbecome final. [Paras 19, 20][487-D-H; 488-A]

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1.8 The certificate of purchase was issued by the LandTribunal, under sub-section (1) of Section 72K. Sub-section (2)of Section 72K of the Land Reforms Act clearly states that thecertificate of purchase issued under sub-section (1) shall be aconclusive proof of the assignment to the tenant of the right, titleCand interest of the landlord and the intermediaries, if any, overthe holding or portion thereof to which the assignment relates.Thus whatever right, title and interest, the landlord had in theland, was assigned in favour of the respondent under the certificateof purchase. Therefore, the respondent is the owner of the land

Das he has legal title to hold the said land. The certificate is also aconclusive proof of the fact that the respondent has been inpossession of the land as a cultivating tenant right from the dateof vesting of the land under the Kerala Land Reforms Act. Theland in question is exempted from vesting in the State under sub-section (2) of Section 3 of the KPF Act. The respondent hasEestablished that he is the owner and in possession of the land onthe appointed day on the basis of certificate of purchase and othermaterials placed on record.[Paras 21, 22][488-B-D, F-G]

Cheeranthoodika Ahmmedkutty and Anr. v. ParamburMariakutty Umma and Ors. (2000) 2 SCC 417 : [2000]F1 SCR 725; Kunjanam Antony (Dead) by LRs. v. Stateof Kerala and Anr. (2003) 3 SCC 221 : [2003] 1 SCR967 – referred to.

Black’s Law Dictionary, Ninth Edition – referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10075-10076 of 2014.

From the Judgment and Order dated 18.09.2001 and 06.02.2007of the High Court of Kerala at Ernakulam in M.F.A. No. 160 of 1991and R.P. No. 572 of 2001.

Jaideep Gupta, Sr. Adv., C. K. Sasi, Ms. Nayantara Roy, Advs.for the Appellants.

K. Rajeev, Bijo Mathew Joy, Advs. for the Respondent.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J. 1. The appellant-State of Kerala haspreferred these appeals challenging the legality and correctness of thejudgment passed by the High Court of Kerala in M.F.A. No.160 of 1991dated 18.09.2001 and the order in RP No.572 of 2001 in M.F.A. No.160of 1991 dated 06.02.2007.

2. The respondent herein filed a petition in the Forest Tribunal,Palakkad under Section 8 of the Kerala Private Forests (Vesting andAssignment) Act, 1971 (for short ‘the KPF Act’) for settlement of thedispute in relation to land measuring about 2 acres bearing R.S No.1200, Muppenad (now in Vellar mala village) Vythiri Taluk, Wynad district(for short ‘the land’). In the petition, it was contended that one K.C.Kunji Moosa had orally leased the land in favour of the respondent’sfather in the year 1962 and that his father was personally cultivating theland; after the death of his father, he was personally cultivating the land.It is not a private forest as defined under Section 2(f) of the KPF Act;the land was principally planted with coffee long before the appointedday; thus, it had not vested in the government under Section 3 of theKPF Act; he was issued a certificate of purchase under Section 72K ofthe Kerala Land Reforms Act, 1963 (for short ‘the Land Reforms Act’)by the Land Tribunal in respect of the said land. It was further contendedthat on 25.02.1987, the officials of Social Forestry Department enteredthe land and destroyed the coffee plants. In this connection, he hadcomplained to the local police and the Village Officer, and that till25.02.1987, there was no obstruction for cultivating the land from theforest officials.

3. The appellants filed a counter-affidavit disputing the claim ofthe respondent. It was contended that the land has not been cultivated A

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Aand that the certificate of purchase produced by the respondent is notbinding on them. The respondent was not in possession of the land ason the date of vesting or subsequent to that date. The land was vestedin the government on 10.05.1971 and is under the custody of the ForestDepartment since then. Since there is no evidence to show therespondent’s title or possession over the land on the appointed day, hisBclaim under Sections 3(2) and 3(3) of the KPF Act is not sustainable.

4. The Tribunal, by its order dated 30.06.1990, dismissed thepetition. The respondent challenged the said order by filing an appealbefore the High Court. The High Court, by its order dated 18.09.2001,allowed the writ petition and set aside the order of the Tribunal. TheCreview petition filed by the appellant-State was dismissed by the HighCourt on 06.02.2007.

5. Appearing for the appellant-State, Shri Jaideep Gupta, learnedsenior counsel, submits that the local inspection report shows that nocultivation whatsoever was seen in the land. The Tribunal found thatDthe land was a private forest at the time of coming into force of the KPFAct. The only document produced by the respondent was the certificateof purchase issued by the Land Tribunal to prove his title to the property.The certificate of purchase is not conclusive as regards the title andpossession. Forest Department was not a party to the said proceedingsEand hence, it is not bound by the said certificate. The other documentsproduced by the respondent, such as revenue receipts do not prove titleof the respondent over the land. It is argued that the respondent hasfailed to establish his possession with valid title to the land as on 10.05.1974or thereafter. Therefore, the High Court was not justified in interferingwith the order of the Tribunal.F

6. Shri K. Rajeev, learned counsel for the respondent submits thatthe father of the respondent had taken the property in the year 1962. Inthe year 1968 the land was planted with coffee. The respondent gotpossession of the property from his father. Since then, the respondenthas been in possession of the land. The Land Tribunal took suo motuGproceedings under Rule 5 of the Kerala Land Reforms (Vesting andAssignment) Rules, 1970 (for short ‘Land Reforms Rules’) for assignmentof the right, title and interest of the said land to the cultivating tenant inpossession, under Section 72B of the Land Reforms Act. The LandTribunal, after inquiry, issued certificate of purchase in favour of theHrespondent, as he was found to be the cultivating tenant in possession of the said land. The land is not a private forest and it did not vest in theState in terms of sub-section (1) of Section 3 as it is exempted undersub-section (2) of Section 3 of the KPF Act. Taking into considerationthe materials placed on record, the High Court has rightly allowed thewrit petition. In the year 1987, the Forest officials illegally destroyed thecoffee cultivation claiming that it is a private Forest vested in theGovernment. He prays for dismissal of the appeals.

7. We have carefully considered the submission of the learnedcounsel made at the Bar.

8. The KPF Act has been enacted to provide for the vesting in theGovernment of private forests in the State of Kerala, and for theassignment thereof to agriculturists and agricultural labourers forcultivation. Section 3 is an important section in this Act, in the sense thatit provides for the vesting of all private forests in the State Governmentfree from all encumbrances. But by virtue of sub-sections (2) and (3),two categories of lands are exempted or excluded from the applicationof the provision for vesting. These provisions are as under:

“3. Private forests to vest in Government:- (1)Notwithstanding anything contained in any other law for the timebeing in force, or in any contract or other document, but subject tothe provisions of sub-sections (2) and (3), with effect on and fromthe appointed day, the ownership and possession of all privateforests in the State of Kerala shall by virtue of this Act, standtransferred to and vested in the Government free from allencumbrances, and the right, title and interest of the owner or anyother person in any private forest shall stand extinguished.

(2) Nothing contained in sub-section (1) shall apply in respect ofso much extent of land comprised in private forests held by anowner under his personal cultivation as is within the ceilinglimit applicable to him under the Kerala Land Reforms Act, 1963(1 of 1964) or any building or structure standing thereon orappurtenant thereto.

Explanation: - For the purposes of this sub-section, ‘cultivation’includes cultivation of trees or plants of any species.

(3) Nothing contained in sub-section (1) shall apply in respect ofso much extent of private forests held by an owner under a valid A

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registered document of title executed before the appointed dayand intended for cultivation by him, which together with otherlands held by him to which Chapter III of the Kerala Land ReformsAct, 1963, is applicable, does not exceed the extent of the ceilingarea applicable to him under Section 82 of the said Act.”

(emphasis supplied)

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9. It is clear from sub-section (2) of Section 3 that the extent ofland comprised in private forests held by the owner under his personalcultivation is exempted from vesting, if the ceiling limit under the KeralaLand Reforms Act is not exceeded. Similarly, sub-section (3) of SectionC3 does not apply in respect of so much of extent of private forests as isheld by an owner under a valid registered document of title executedbefore the appointed day and intended for cultivation by him, if the ceilinglimit under Chapter III of the Kerala Land Reforms Act is not exceeded.The appointed day for the purpose of Section 3 is 10.5.1971, which isclear from Section 2(a) of the KPF Act.D

10. The contention of the respondent is that his father had takenthe land on lease from K.C. Kunji Moosa in the year 1962, and that hisfather was cultivating seasonal crops in the lands till 1967. He plantedcoffee in the year 1969. In pursuance of suo moto proceedings initiatedby the Land Tribunal, the jenman right (right of the landlord) was assignedEin his favour. In support of his contention, he has produced exhibit A1,the certificate of purchase issued by the Land Tribunal under Section72K of the Land Reforms Act. The question is whether this documentestablishes the respondent’s ownership and possession over the land ason the date of vesting in the government under the KPF Act and whetherFit is exempted from vesting in the State Government.

11. The Land Reforms Act received the assent of the Presidenton 31.12.1963. Sections 2 to 71, 73 to 82, 84, 99 to 108 and 110 to 132came into force on 01.01.1970. The expression “landlord” is defined insub-section (29) of Section 2 as a person under whom a tenant holdsGand includes a landowner. “Landowner” is defined in sub-section (30)of Section 2 as the owner of the land comprised in a holding and includes(i) a landholder holding Sree Pandaravaka lands on pattam, otti, jenmam,kudijenmam, danam or any other tenure; and (ii) a landholder holdingSreepadam lands on Sreepadam-pattam or other favourable tenure. Theland in question is genmam land which is clear from the records. Sub- H

section (32) of Section 2 defines “Land Tribunal” as Land tribunalconstituted under Section 99. Sub-section (57) of Section 2 defines a“tenant” as any person who has paid or agreed to pay rent or otherconsideration for his being allowed to possess and to enjoy any land by aperson entitled to lease that land. It is an inclusive definition containingclauses (a) to (j)

12. Section 72 of the Land Reforms Act provides for vesting oflandlord’s rights in Government. As per this provision, all right, title andinterest of the landowners and intermediaries in respect of holdings heldby cultivating tenants (including holders of kudiyiruppus and karaimas)entitled to fixity of tenure under Section 13 and in respect of whichcertificates of purchase under sub-section (2) of Section 59 have notbeen issued, vest in the Government free from all encumbrances createdby the landowners and intermediaries subsisting thereon on the date tobe notified by the Government in that behalf in the Gazette.

13. Section 72B of the Land Reforms Act lays down that thecultivating tenant of any holding or part of a holding, the right, title andinterest in respect of which have vested in the Government under Section72, shall be entitled to assignment of such right, title and interest.

14. Sub-section (1) of Section 72K states that as soon as may beafter the determination of the purchase price under Section 72F or thepassing of an order under sub-section (3) of Section 72MM, the LandTribunal shall issue a certificate of purchase to the cultivating tenant,and thereupon the right, title and interest of the landowner and theintermediaries, if any, in respect of the holding or part thereof to whichthe certificate relates, shall vest in the cultivating tenant free from allencumbrances created by the landowner or the intermediaries, if any.Sub-section (2) of Section 72K states that the certificate of purchaseissued as above, shall be conclusive proof of the assignment to the tenantof the right, title and interest of the landowner and the intermediaries, ifany, over the holding or portion thereof to which the assignment relates.These two provisions are as under:

“72K. Issue of certificate of purchase – (1) As soon as maybe after the determination of the purchase price under Section72F [or the passing of an order under sub-section (3) of Section72MM] the Land Tribunal shall issue a certificate of purchase tothe cultivating tenant, and thereupon the right, title and interest of A

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Athe landowner and the intermediaries, if any, in respect of theholding or part thereof to which the certificate relates, shall vestin the cultivating tenant free from all encumbrances created bythe landowner or the intermediaries, if any.

Explanation – For the removal of doubts, it is hereby declaredBthat on the issue of the certificate of purchase, the landowner orany intermediary shall have no right in the land comprised in theholding, and all his rights including rights, if any, in respect of treesreserved for his enjoyment shall stand extinguished.

(2) The certificate of purchase issued as above, shall beCconclusive proof of the assignment to the tenant of the right,title and interest of the landowner and the intermediaries,if any, over the holding or portion thereof to which theassignment relates.”

(emphasis supplied)

D15. Section 102 of the Land Reforms Act authorises theGovernment or any person aggrieved by any order of the Land Tribunalto file an appeal within such time, as may be prescribed, to the AppellateAuthority.

16. Rule 5 of the Land Reforms Rules authorizes the Land TribunalEto initiate suo motu proceedings; which is as under:

“5. Land Tribunal to initiate suo motu proceedings. – (1)Where a Land Tribunal receives information that the right, titleand interest of the landowner and intermediaries in respect of aholding or part of a holding situate within its jurisdiction have vestedFin the Government under Section 72, it shall, notwithstanding thatan application referred to in Rule 4 has not been received in respectof that holding or part, as the case may be, of its own motionassign such right, title and interest to the cultivating tenants entitledthereto in the manner hereinafter provided.”

G17. As noticed above, sub-section (2) of Section 3 of the KPF Actprovides for the exemption of the private forest from vesting. It statesthat the land comprised in private forest held by an owner under hispersonal cultivation is exempted from vesting, if the ceiling limit underthe Kerala Land Reforms Act is not exceeded. The land in questionmeasures about 2 acres. It is not the case of the appellants that the landH

exceeds the ceiling limit under the Kerala Land Reforms Act. Theexpression ‘held by the owner under his personal cultivation’ containedin sub- section (2) of Section 3 of the KPF Act is crucial. To bring theland under the exempted category, the claimant should hold the same asan owner and that it should be under his personal cultivation. ‘To own’ isto have good legal title to hold and possess the property. Black’s LawDictionary, Ninth Edition defines the word ‘own’ as ‘to rightfully haveor possess as property; to have legal title to’.

18. It is well settled that when the enactment enjoins that anyevidence would be treated as a conclusive proof of certain factual situationor legal hypothesis, the law would forbid other evidence to be adducedfor the purpose of contradicting or varying the aforesaid conclusiveness.This is the principle embodied in Section 4 of the Evidence Act, 1872when it defines “conclusive proof” (See: CheeranthoodikaAhmmedkutty and Anr. v. Parambur Mariakutty Umma and Ors.reported in 2000 (2) SCC 417).

19. In the instant case, the land in question is jenmam land. TheLand Tribunal initiated suo motu proceedings under Rule 5 of the LandReform Rules, after obtaining information that the cultivating tenant hadbeen in possession, obviously on a report of the revenue inspector. It isevident from Section 74 of the Land Reforms Act that any tenancy after01.04.1964 is prohibited. Any tenancy created after that date is invalid.The Land Tribunal initiating proceedings under Section 72B in favour ofthe cultivating tenant would be considering the possession of a tenant ason the said date which is far earlier than the KPF Act. Possession andtitle under the certificate of purchase have to relate back to a date priorto the date of vesting under the Land Reforms Act, i.e. 01.04.1964.Therefore, there is no question of vesting of the land in the Governmentunder the KPF Act which has come into force subsequent to the date ofLand Reforms Act. As noted above, the certificate of purchase issuedunder the Land Reforms Act is attributed with statutory conclusivenessas regards ownership/title under sub-section (2) of Section 72K. Thecertificate issued by a competent Land Tribunal after finding that thetenant was in possession of the property as a cultivating tenant is aconclusive proof of possession as well.

20. In the instant case, certificate of purchase has been issued infavour of the respondent after enquiry by the Land Tribunal. Thoughthe State Government is not a party to this order, there was no bar for it A

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Ato challenge this order under Section 102 of the Land Reforms Act. Noappeal has been filed challenging the certificate of purchase either bythe Government or by any other person. Thus, the certificate of purchasehas become final.

21. To sum up, the certificate of purchase was issued by the LandBTribunal, under sub-section (1) of Section 72K. Sub-section (2) of Section72K of the Land Reforms Act clearly states that the certificate ofpurchase issued under sub-section (1) shall be a conclusive proof of theassignment to the tenant of the right, title and interest of the landlord andthe intermediaries, if any, over the holding or portion thereof to whichthe assignment relates. Thus whatever right, title and interest, the landlordChad in the land, has been assigned in favour of the respondent under thecertificate of purchase. Therefore, it can safely be concluded that therespondent is the owner of the land as he has legal title to hold the saidland. As noticed above, the certificate is also a conclusive proof of thefact that the respondent has been in possession of the land as a cultivatingDtenant right from the date of vesting of the land under the Kerala LandReforms Act. In our view, the land in question is exempted from vestingin the State under sub-section (2) of Section 3 of the KPF Act.

22. In Kunjanam Antony (Dead) by LRs. v. State of Keralaand Anr. (2003) 3 SCC 221, relied on by the learned senior counsel forEthe appellants, it has been held that the order of the Thaluka Land Boardis a piece of evidence so far as the proceedings under the Kerala PrivateForests (Vesting and Assignment) Act, 1971 are concerned, but it cannotbe treated as binding on the authorities. In this judgment, the statutoryconclusiveness of title under sub-section (2) of Section 72K of the LandReforms Act has not been considered. Apart from the above, it wasFheld that the certificate of purchase is also a piece of evidence whichcannot be totally discarded. In the instant case, the respondent hasestablished that he is the owner and in possession of the land on theappointed day on the basis of certificate of purchase and other materialsplaced on record.G23. The appeals are devoid of merit and are accordingly dismissedwithout order as to costs.

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Divya Pandey

Appeals dismissed.