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The State of Madras, Represented by the Collector of Kanyakumari Vs. Charles Harold Simpson - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1967)2MLJ302
AppellantThe State of Madras, Represented by the Collector of Kanyakumari
RespondentCharles Harold Simpson
Excerpt:
- - this phraseology, read in the context of section 10 we are inclined to think, is more apt to apply to rights of the character mentioned in section 10 like a right of way, right to water course or to a use of water, a right of pasture or a right to forest produce......the suit property and for an injunction restraining the state from disturbing his possession. the suit lands of a total extent of ac. 851-51 cents are comprised, as claimed by the respondent, in s. nos. 2888/2 and 3, 2902/1 and 2917/3. the respondents title to the property is rested on a sale deed dated 26-2-1050 (m.e.). the lands were included in a notification dated 7th april, 1908, made under section 4 of the travancore forest act of 1088 which has been replaced now by the travancore-cochin forest act, 1951 but with identical provisions. this was followed by a further notification published on 30th june, 1908 under section 6 of the act. admittedly, the final notification under section 18 has yet to be made. under this act, the government took power to constitute any land at its.....
Judgment:

K. Veeraswami, J.

1. This Second Appeal by the State, arises out of a suit instituted by the respondent for a declaration of his title to the suit property and for an injunction restraining the State from disturbing his possession. The suit lands of a total extent of Ac. 851-51 cents are comprised, as claimed by the respondent, in S. Nos. 2888/2 and 3, 2902/1 and 2917/3. The respondents title to the property is rested on a sale deed dated 26-2-1050 (M.E.). The lands were included in a notification dated 7th April, 1908, made under Section 4 of the Travancore Forest Act of 1088 which has been replaced now by the Travancore-Cochin Forest Act, 1951 but with identical provisions. This was followed by a further notification published on 30th June, 1908 under Section 6 of the Act. Admittedly, the final notification under Section 18 has yet to be made. Under this Act, the Government took power to constitute any land at its disposal as a reserved forest in the manner provided therein. The notification under Section 4 is required to specify as nearly as possible the situation and limits of the land notified and to contain a declaration that it was proposed to constitute such lands as a reserved forest. The predecessor of the respondent filed a claim under Section 6(d) stating that 300 acres covered by the said sale deed constituted 'private land' and should therefore be excluded from the notifications. The claim was allowed. The respondent, however, asserted that a further extent of land, which are the plaint-schedule properties, were also covered by the sale deed and were private lands not liable to be included in the notifications for constituting a reserved forest. The suit was resisted on various grounds one of which was that the properties in suit were not included in lakkam 28. There was no controversy between the parties that if these lands formed part of lakkam 28, they would be 'private lands' and not lands at the disposal of the Government. Both the Courts below have held that the properties formed part of lakkam 28. But the lower appellate Court considered that in view of this finding, it was unnecessary to decide whether the suit properties were also covered by the sale deed, inasmuch as the appellant was not concerned with it. Two other questions were also considered and determined by the lower appellate Court. It held that because the respondent's predecessor confined his claim under Section 6(d) to 500 acres, he was not barred under Order 2, Rule 2, Civil Procedure Code. This was on the view that this particular rule had no application to proceedings under the Act. The other was as to the scope of Section 5 relating to bar of suits. The lower appellate Court held that this section did not bar the suit. One of its reasons was that the individual notice contemplated by the last paragraph of Section 6 was not served on the respondent.

2. Before us, learned Government Pleader strenuously argued that the finding of the lower appellate Court that the suit properties formed part of lakkam 28 is erroneous. He recognises, however, that this finding was based on an appreciation of evidence before the lower appellate Court. But he contends that the Commissioner's plans, Exs. C-2 and C-3 were wrongly drawn up and the lower appellate Court ought not to have relied on them. But the Commissioner who was examined on the side of the appellant and the Village Officer examined for the State both deposed to the correctness of the plans. Whatever that be, the question is purely one of fact, namely, whether the suit properties form part of lakkam 28. No argument has been addressed to us that the factual finding arrived at by both the Courts below is vitiated by any misdirection in law. All that is stated for the State is that the plans having been wrongly drawn up by the Commissioner, the finding based thereon was erroneous. However erroneous a finding of fact may be, it must stand and cannot be touched in second appeal, unless it is shown that it has been arrived at on a misdirection in law. That is not the case here. We decline, therefore, to interfere with this finding of fact.

3. On the question of the application of Order 2, Rule 2, Civil Procedure Code, our attention has been invited to Sections 8 and 9 and placing reliance on those two provisions learned Government Pleader argues that the Civil Procedure Code, 1908, applies to enquiries by the Forest Settlement Officer into claims preferred under Section 6(d). But the first part of Section 8 only says that the Forest Settlement Officer shall enquires into such claim, recording all statements and the evidence in the manner prescribed by the Civil Procedure Code, in regard to appealable cases. Section 9 also does not attract Order 2, Rule 2, Civil Procedure Code for the Forest Settlement Officer's power are confined to those powers of a civil Court in the trial of the suits. Order 2, Rule 2, Civil Procedure Code occurs in a chapter relating to pleadings and the chapters relating to trial of suits come much later. We, therefore, accept the view of the Court below that Order 2, Rule 2, Civil Procedure Code will have no application to enquiries under Section 8 of the Travancore-Cochin Forest Act, 1951, though we come to that conclusion for different reasons.

4. The last point urged for the State is as to the maintainability of the suit. It is said that Section 5 bars a suit of this nature, since no final notification has been made under Section 18. Section 5 no doubt, says that except as provided in the Act, no civil Court shall, between the dates of the publication of the notification under Section 4 and of the notification to be issued under Section 19 entertain any suit against the Government to establish any right in or over any land or to the forest produce of any land included in the notification published under Section 4. It is plain from this provision that a suit against Government to establish any rights in or over any lands or to any forest produce of the lands included in the notification published under Section 4 will be barred between the two dates. But the point is whether this will cover a claim to land as private land, not at the disposal of the Government. In our opinion Section 5 has no application to such a claim for the reasons which immediately follow. Section 3 says that the Government may constitute any land at the disposal of the Government a reserved forest in the manner provided in the Act. So, it is only and land at the disposal of the Government that can be constituted by the Government as reserve forest. Section 2 contains an inclusive definition of 'land at the disposal of Government', that is, this expression will include all unoccupied land, all temporarily occupied land and all land occupied without permission, whether assessed or unassessed, but does not include land, the property of landholders such as jenmies, devaswoms or holders of inam lands as also all holdings of land in any way subject to the payment of land revenue direct to Government, and all other registered holdings of land in proprietary right. The inclusive part of the definition does not show that even lands owned privately by a landowner can be regarded as land at the disposal of Government. The requisite for a land to be constituted as a reserve forest is that it must be land at the disposal of Government, which means either as owner or in other capacity having a disposing power. The purpose of the Act being only constituting such land as a reserved forest the Act, in our opinion, will be wholly inapplicable to private lands. The matter does not stand there. What is barred under Section 5 is only a suit to establish any right in or over any land or to forest produce. This phraseology, read in the context of Section 10 we are inclined to think, is more apt to apply to rights of the character mentioned in Section 10 like a right of way, right to water course or to a use of water, a right of pasture or a right to forest produce. These rights are in the nature of easementary rights or quasi-easementary rights. We do not think that the bar under Section 5 extends to a suit which is for a declaration of title to the land itself as a private land and for consequential remedies. In fact, the tenor of Section 15 appears to be in keeping with our interpretation of the scope of Section 5. Where a claim is of the kind other than those specified in Section 10, Government may come to an agreement with the claimant for surrender of the right, or exclude the land from the limits of the proposed reserve, or proceed to acquire such land according to the law for the time being in force for the acquisition of land for public purposes. The alternative in the sections themselves suggest that the claim relates to something to which Government is not entitled as of right. There is yet another reason why we think that Section 5 does not bar the instant suit and that is that the suit is not merely to establish the title of the respondent, but also for injunction and the consequential remedy is certainly not within the power of the Forest Settlement Officer to grant. The prayer for injunction being within the exclusive jurisdiction of the civil Court in order to grant, it will necessarily have to go into the question of title. The respondent could have merely sued for an injunction on the footing that he had title to the property, in which case the title would have to be gone into as an incidential question.

5. It is settled principle of construction that the exclusion of jurisdiction of civil Courts should be express or necessarily implied. Such exclusion will not be readily assumed. We are clear that Section 5 neither expressly nor by necessary implication excludes the jurisdiction of civil Courts.

6. This Second Appeal is dismissed with costs.


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