AMMULAKANDIYIL AYICHUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) Certain land belonging to the appellants as scheduled to the application filed before the Tribunal below vested with Govt. in terms of S.3(1) of the Kerala Private Forest (Vesting and Assignment) Act, 1971. There upon a dispute was raised and the application under S.8 was filed before the Forest Tribunal, Palakkad seeking exemption from vesting under S.3(2) of the Act. The Tribunal considered the matter with reference to the evidence and the pleadings and the application was dismissed. It was confirmed in appeal. There is finding in that judgment with respect to the claim of cultivation raised by the appellant. There is also a finding with reference to the absence of evidence as to whether the appellants did have in their possession cultivable land in excess of the ceiling area provided for in Act 1 of 1964. Later the appellants again attempted to get exemption from S.3(1) invoking S.3(3) and filed a fresh application. That was also dismissed. That dismissal is impugned in this appeal.

(2.) The application originally filed by the appellants was under S.8 raising a dispute whether any private forest or portion there of had vested in Govt. In support of an application two grounds are available to the incumbent concerned, one under S.3(2) and the other under S.3(3) of the Act. First is in respect of the land held by the owner concerned under his personal cultivation and the second in respect of the land held under a valid registered document of title executed before the date of enforcement of the Act in respect of the property intended for cultivation by him. To invoke both of these grounds it was incumbent on the applicant to show that the applicant did not have land beyond the ceiling limit applicable in terms of Act 1 of 1964. The tribunal below considered the present application with reference to the ground in terms of S.3(3) and found that there was no reason to accept the case of the appellants. The tribunal below also found that the issue had already been concluded by the decision of the tribunal in the earlier application admittedly filed by the appellants which had been confirmed by this Court in the appeal preferred by them.

(3.) These findings are assailed by the appellants contending that though the general principles of res judicata is applicable to tribunals as well, that relating to constructive res judicata as contained in Explanation IV to S.11 of the Code of Civil Procedure, 1908 cannot be made applicable. That is made applicable only in a duly constituted suit. Therefore the appellants were entitled to invoke the grounds available under S.3(2) and 3(3) separately to file applications under S.8 one after another. Dismissal of earlier application shall not stand in the way of consideration of the second application with regard to the contention on merit. It is submitted that the personal cultivation as enjoined in S.3(2) and the intention to cultivate as enjoined in S.3(3) are different. Even though the claim of personal cultivation had been found against in the earlier application, the appellants are not procluded to agitate for exemption from vesting on the ground that they intended to cultivate the land in question.