STATE OF KERALA Vs. JOSEPH

JUDGEMENT

(1.) THIS appeal under S. 8a of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter called the Act) is by the State and the Custodian of Vested Forests, Kozhikode. The order under challenge is in a proceeding under S. 8 of the Act for a declaration that the petition schedule property, 22. 99 acres of land in Sy. No. 569/1/1 of Pathanamthitta Village, has not vested in the state under the Act. The proceedings were initiated by respondents 1 to 4 who were the applicants before the Forest Tribunal. According to them, the petition schedule land which forms part of a larger extent of 99 acres was a plantation belonging to Zacharia and Sons Pvt. Ltd. The company went into liquidation and the liquidator as per three documents Exts. A1 to A3 dated 11-9-1969 assigned 33. 65 acres to one V. Z. Joseph, 33. 15 acres to V. Z. Zacharia and 33. 14 acres to Smt. Elikutty Joseph. The company had registered it as a tea estate and the estate had Tea Board registration, which was renewed in the name of the assignees. Sri. V. Z. Joseph, the assignee under Ext. A1, assigned his rights under Exts. A4 and A5 dated 29-5-1979 to one K. C. Antony and varkey. Under Exts. A6 to A9 dated 30-4-1980 , k. C. Antony and Varkey assigned their rights to the four petitioners. Petition schedule property is a portion of the properties included in Ext. A1 sale deed in favour of V. S. Joseph and the applicants claim title on the basis of the above documents. They further alleged that the entire land is bounded on the east by Government reserve forest and is clearly demarcated by Kayyala and Fire belt put up by the Forest Department. But after the Act came into force, the forest officials put up survey stones in the petition schedule property while it was in the possession of V. Z. Joseph and he filed O. A. No. 133/77 before the forest Tribunal under S. 8 of the Act for a declaration that it is not a vested forest. Pending that he assigned it to Antony and Varkey under Exts. A4 and A5 authorising them to get themselves impleaded and prosecute the proceeding before the Tribunal. But they did not prosecute the matter and O. A. No. 133/77 was dismissed for default by the Tribunal on 30-11-1979. After the purchase by the applicants in 1980, they made enquiries and came to understand that the proceeding initiated by V. Z. Joseph was dismissed for default and the present petition was filed on 19-6-1980. The disputed property forms part of a plantation area and is included within well-defined boundaries clearly marked for the entire estate. It is not a wooded area and the applicants and their predecessors have been doing regular cultivation of pepper, tea, cashew etc. and consequently it is not a private forest as defined in the Act and will not vest in the State. On these allegations, the application was made for a declaration as stated above.

(2.) THE State and the Custodian filed a written objection wherein the title of the applicants over the land was not disputed; but they contended that the petition schedule property is lying adjacent to Kumaramperur reserve forest of Konni Range, that it is a wooded area consisting of teak and other miscellaneous forest species. THEre is a teak plantation in 1. 5 hectares and the remaining area is a natural forest containing teak and miscellaneous forest species like thenpavu, Maruthu etc. and the property vested in the State. THEy also denied the fact that the disputed area is planted with pepper vines, arecanuts, tea or cashew. THEy further contended that the present application is barred in view of the dismissal of O. A. No. 133/77 in respect of the same property for the very same relief.

(3.) WE shall first consider the question as to the effect of the dismissal of O. A. No. 133/77 for default on the present petition. It is clear that if Order IX R. 9 CPC is applicable to the proceedings before the forest Tribunal, the present petition is barred and the question for consideration is whether that provision is applicable to the said proceedings. S. 12 of the Act provides the power of Tribunal and it says that it shall have all the powers of a civil court while trying a suit under the CPC in certain matters. Clauses (a) to (f) deal with the matters for which the power under the cpc can be exercised by the Tribunal. Clause (g) of S. 12 further provides that the Forest Tribunal shall have all the powers of a civil court while trying a suit under the C. P. C. on any other matter which may be prescribed. R. 11 of the kerala Private Forests (Tribunal) Rules, 1972 provides as follows: "in all proceedings before the Tribunal, the procedure prescribed as regards applications in the Code of Civil Procedure, 1908, or the rules made thereunder shall, as far as they can be made applicable, be followed, except to the extent otherwise provided in the Act or in these rules. " It is clear from R. 11 that the Forest Tribunal is empowered to follow the procedure prescribed as regards applications in the Code. S. 141 of the CPC deals with the procedure in miscellaneous proceedings in a civil court. S. 141 reads as follows:- "141. Miscellaneous proceedings.--The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceeding in any Court of civil jurisdiction. " A reading of R. 11 makes it clear that an application under S. 8 becomes an application under the Code and the Tribunal has to proceed with an application before it as if S. 141 CPC is applicable. S. 141 C. P. C. makes only the procedural provisions of the Code applicable to miscellaneous proceedings. Learned Government Pleader contended that the bar of a fresh suit contained in Order IX R. 9 CPC is a procedural one and not a substantive right and the above provision will apply to the proceedings in question. On the other hand, counsel for the respondents applicants contended that the above provision contained in Order IX R. 9 is not procedural but is a substantive right and as such will not come within the purview of S. 141 CPC. So the question to be decided is as to whether the bar of suit contained in Order IX R. 9 is only a procedural provision or a provision which confers a substantive right on a party. In this connection, learned Government Pleader relied on a Full Bench decision of this court in Bhargavi Amma v. Varkey (1967 KLT 317 ). The question that arose in that case was as to whether an application under the Kerala Land reforms Act (Act I of 1964) for determination of fair rent which was dismissed by the Land Tribunal for default of prosecution can be restored by it. In that connection the question that arose before the Full Bench was as to whether order IX was applicable to a proceeding before the Land Tribunal. The procedure to be followed by the Land Tribunal was provided in R. 99 of the Kerala Land reforms (Tenancy) Rules, 1964 which was identical with R. 11 of the Kerala private Forests (Tribunal) Rules to the following effect: "in all proceedings before the Land Tribunal and the land Board, the procedure prescribed as regards applications in the Code of civil Procedure or the rules made thereunder shall, as far as can be made applicable, be followed except to the extent otherwise provided in the Act or in these rules. " In construing that rule, their Lordships came to the conclusion that by virtue of R. 99, S. 141 C. P. C. is made applicable to the proceedings before the Land Tribunal and that the procedure applicable to such applications under the C. P. C. is made applicable to the proceedings before the land Tribunal also. Their Lordships further held that in view of that an application for determination of fair rent has to be treated as one under the c. P. C. and that the provision of Order IX would apply to it. Based on the dictum of the Full Bench decision it was contended that the whole of Order IX c. P. C. would be applicable to the proceedings before the Forest Tribunal including Order IX R. 9. It is to be noted in this connection that the question whether Order IX R. 9 would be applicable to a proceeding like this was not as such considered by the Full Bench. There the only question considered was as to whether a Land Tribunal has power to dismiss an application for default or to restore an application dismissed for default. Certainly, those are procedural matters and the provision in Order IX C. P. C. regarding the above is only procedural in nature and does not create any substantive right in any of the parties. That decision has to be understood taking into account the facts of that case and we feel that the decision is not an authority for coming to the conclusion that Order IX R. 9 is also applicable to proceedings of this nature.