RANGE OFFICER vs ANILKUMAR
- Court
- Kerala High Court
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RSA NO. 469 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
ST
MONDAY, THE 1 DAY OF JUNE 2026 / 11TH JYAISHTA, 1948
RSA NO. 469 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 21.02.2023 IN AS
NO.71 OF 2008 OF SUB COURT, NEDUMANGAD ARISING OUT OF THE
JUDGMENT AND DECREE DATED 08.08.2008 IN OS NO.85 OF 2007 OF
PRINCIPAL MUNSIFF COURT,NEDUMANGAD
APPELLANTS/RESPONDENTS/DEFENDANTS IN OS:
1 RANGE OFFICER
KOTTOOR FOREST RESERVE ,THIRUVANATHAPURAM, PIN -
689582
2 KERALA STATE
REPRESENTED BY CHIEF SECRETARY, PIN – 695001.
BY ADV.SRI.T.P.SAJAN, SPL. GOVERNMENT PLEADER
(FORESTS)
RESPONDENT/APPELLANT IN AS/PLAINTIFF IN OS:
ANILKUMAR
S/O .RAMAKRISHNAN, R.K.SADANAM ,PALARIKONAM ,
ARYANAD NOW RESIDING AT SREE VINAYAKAM ,
PALARIKONAM, PIN - 695542
BY ADVS.
SRI.G.RANJU MOHAN
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SRI.M.P.MADHAVANKUTTY
SMT.M.SANTHI (K/868/2011)
SHRI.PYARIN B. KURUVITHADAM
SMT.P.R.SRIKALA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 18.05.2026, THE COURT ON 01.06.2026 DELIVERED THE
FOLLOWING:
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EASWARAN S., J. “C.R”
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RSA No.469 of 2023
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st
Dated this the 1 day of June, 2026
J U D G M E N T
State of Kerala has come up in this appeal aggrieved by the
judgment and decree dated 21.02.2023 in AS No.71/2008 of the Sub
Court, Nedumangad, which reversed the dismissal of OS No.85/2007
by the Principal Munsiff’s Court, Nedumangad.
2. The brief facts necessary for the disposal of the appeal are
as follows:
The plaintiff instituted the suit initially for permanent
prohibitory injunction restraining the appellants/defendants (State)
from obstructing the right to use the plaint C schedule pathway or
closing the C schedule pathway. A schedule property is in possession
of the plaintiff, who is admittedly a trespasser. However, the
possession of the plaintiff was recognized under the relevant Rules
and certificate of possession was issued on 31.8.1989. The plaintiff
claimed that he was using plaint C schedule pathway to enter into A
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schedule property. C schedule pathway passes through the reserved
forest which is scheduled as B schedule. According to the plaintiff, on
08.02.2007, the officers of the Forest Department had dug certain
trenches in C schedule pathway to disrupt the peaceful enjoyment of
the plaintiff’s right of way through C schedule pathway to A schedule
property. Hence, the suit, which was amended on 15.2.2008
incorporating the prayer for mandatory injunction for a direction to
the defendants to restore ‘C’ schedule into its original position or to
allow the plaintiff to restore C schedule pathway and to recover the
cost from the defendants, along with some additional grounds. The
defendants resisted the suit by primarily contending that the plaintiff
has no right of easement by prescription over the property of the
Government. It was further contended that the permission to use the
forest land for non-forestry purpose will be in violation of the Forest
(Conservation) Act, 1980 and that the plaintiff’s property is not an
enclosure inside the reserved forest, but a continuous piece of
agricultural land lying continuously with the revenue land. Later,
during the stage of evidence, the defendants produced a letter dated
21.8.2006 (Ext.B1) written by the plaintiff requesting the Forest
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Range Officer, Agasthyavanam to grant permission to access C
schedule property. Therefore, the stand of the defendants was that
even assuming that a right of prescription was available, the same
stood lost because of the clear admission in Ext.B1 that the plaintiff
was not using the pathway for nearly 25 years. On behalf of the
plaintiff, Exts.A1 to A5 documents were marked and PW1 to PW3
were examined. On behalf of defendants, Ext.B1 was marked and DW1
was examined. The trial court based on oral and documentary
evidence concluded that the ingredients of Section 15 of the Indian
Easements Act, 1882 are not met and that there is discontinuation of
the use of land and therefore the plaintiff is disabled from asserting
his right under Section 15 of the said Act. Accordingly, the suit was
dismissed. Aggrieved, the plaintiff preferred AS No.71/2008 which
was allowed by the Sub Court, Nedumangad by judgment dated
21.02.2023 on the ground that Ext.B1 neither obliterates the right of
the plaintiff to use C schedule pathway nor gives an indication of
discontinuation of the right of use of C schedule pathway. Accordingly,
the appeal was allowed and the suit was decreed.
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3. On 29.08.2024, this Court admitted the appeal on the
substantial questions of law c) and d) framed in the appeal, which
read as under:
“c) Whether easement by prescription is available in
the forest land in the light of provisions of Section 16, Section
20 and Section 22 of the Forest Act?
d) Whether any right can be acquired over forest
land by way of declaration by the Civil Court without
following the procedure prescribed in the Forest Act and the
Forest Conservation Act for acquiring the said right?”
4. Heard Sri.T.P.Sajan, the learned Special Government
Pleader (Forests) appearing for the appellants/defendants and
Sri.M.P.Madhavankutty, the learned counsel appearing for the
respondent/plaintiff.
5. Sri.T.P.Sajan, the learned Special Government Pleader
(Forests) appearing for the appellants, contended that in terms of
Section 2 of the Forest (Conservation) Act, 1980, any permission to
be granted over the reserved forests must be strictly in accordance
with the terms and conditions prescribed by the Central Government
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and that the State Government has no power to grant such permission.
Section 2 of the Forest (Conservation) Act, 1980 would give an
indication that the right of easement by prescription over a forest land
is not available. Even otherwise, it is pointed out that Sections 16, 20
and 22 of the Kerala Forest Act, 1961 would give a fair indication that
no right of easement by prescription can be claimed over reserved
forests. Even assuming for argument’s sake such right can be claimed,
according to Sri.T.P.Sajan, such right in the present case has been
abandoned by the plaintiff, which is evident from Ext.B1 letter.
Placing heavy reliance on the contents of Ext.B1 letter, the learned
counsel pointed out that there is a clear and unequivocal admission
on the part of the plaintiff that he had left the plaint A Schedule
property 25 years ago and that he has not been using the same, and
that precisely is the reason why permission was sought for. The date
of issuance of the letter would clearly indicate that the cause of action
pleaded in the suit as 08.02.2007 is clearly false and that only when
an attempt was made by the plaintiff to cut and remove certain trees
standing in B schedule property, the Forest Officials had intervened.
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6. Per contra, Sri.M.P.Madhavankutty, the learned counsel
appearing for the respondent/plaintiff, supported the findings
rendered by the first appellate court and contended that the
provisions of Section 2 of the Forest (Conservation) Act, 1980, which
enacted only in the year 1980, cannot be applied in the present case
because the possession of the plaintiff is recognized from the year
1977. He further pointed out that there is no alternate way to enter
the plaint A schedule property. Still further, he pointed out that
Explanation-II to Section 15 of the Indian Easements Act is attracted
in the present case and therefore, unless the conditions are satisfied,
the plaintiff cannot be non-suited. He further pointed out that the
contents of Ext.B1 cannot obliterate the right of the plaintiff from
using C schedule property. The right of the plaintiff having been
recognized under Ext.A1, the same cannot be rendered otiose by the
refusal of the appellants to grant permission or recognize the right of
prescriptive right of easement in favour of the plaintiff.
7. I have considered the rival submissions raised across the
bar, perused the judgments rendered by the courts below and the
records of the case.
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8. The primary question to be considered is whether the
plaintiff can claim the right of easement over forest land. To consider
this issue, one must bear in mind certain provisions of the Kerala
Forest Act, 1961. Section 4 deals with notification of reserved forest.
Once the notification is issued the same requires to be published in
gazette under Section 6. Thereafter a series of procedures are
prescribed under the Act until it culminates in a notification under
Section 19. It is worthwhile to note that Section 16 of the Kerala Forest
Act, 1961 prescribes execution of an agreement regarding the right of
way. Section 16 reads as under:
“ 16. Claims to rights of way, etc.- When the claim
admitted relates to a right of way or to a water course,
or to a use of water, the Government shall either come
to an agreement with the claimant for the surrender of
the right or pass an order admitting such right and
providing for the exercise of such right.”
The reading of the afore provision shows that a person claiming right
over the way is obliged to alert the authorities and have the right
recognised under law. Section 18 further provides for commutation of
rights. At the culmination of such procedure, a notification under
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Section 19 of the Act is issued. Once the notification is issued, all rights
not known to the government and not known by inquiry get
extinguished under Section 20 of the Kerala Forest Act, 1961.
9. A cumulative reading of these provisions makes it clear
that any right of way over forest land cannot be enforced unless it is
recognised through an agreement under Section 16. View taken by
this Court finds support from an unreported judgment of a Single
Bench of this Court in State of Kerala Vs P.M. Joseph {S.A No.
402/1996 dated 18-5-2010; 2010:KER:16485} .
10. An incidental question may arise. Can Kerala Forest Act,
1961 restrict any right claimed under the Indian Easements Act, 1882?
While Section 15 of the Easements Act recognizes an easement by
prescription, a claim can succeed only if the claimant establishes a
lawful right over another’s property. In the case of Government land,
particularly reserved forest, no individual right can be recognised
disregarding the restrictions imposed by the Kerala Forest Act, 1961.
Therefore, this Court holds that when a right of way is claimed
through a reserved forest, the right can only be subject to the
provisions of the Kerala Forest Act, 1961. Accordingly, first
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substantial question of law [No.c)] is answered in favour of the
appellant-State.
11. Next, it is to be considered whether the plaintiff has
established any right of easement. In order to sustain his claim, the
plaintiff must not only establish the right of easement but also must
prove that the stipulations under the Forest Act have been complied
with in order to assert his right over the way.
12. Existence of ‘C’ Schedule pathway is not under dispute.
However, the appellants assert before this Court that right, if any, has
been lost or abandoned and Ext.B1 letter conclusively prove the same.
A reading of Ext.B1 letter would show that the plaintiff had
categorically admitted as early as in the year 2006 that he had left the
plaint A Schedule property 25 years ago and that C schedule
property/pathway is now covered with trees and shrubs and become
unusable, and therefore sought permission of the Forest Range
Officer, Agasthyavanam to permit the plaintiff to clear the
obstructions and to use the C schedule pathway. When the contents
of Ext.B1 letter is read as a whole, it is evident that the plaintiff had
categorically admitted that he had discontinued to use the C schedule
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pathway when he left the plaint A schedule property 25 years ago, and
that thereafter he wanted to come back and construct a house in A
schedule property and reside there.
13. If, as a matter of fact, the plaintiff had entertained the
belief that he is entitled to use C schedule property as a matter of right,
then he need not have sought permission of the Forest Range Officer
to use C schedule pathway. Moreover, the evidence adduced by the
plaintiff in this case, is completely silent with regard to compliance
with the requirements of Section 16 of the Kerala Forest Act, 1961. In
such circumstances, it is inevitable for this Court to hold that the
plaintiff has failed to establish his right over ‘C’ schedule property,
and even if he had such right the same has been lost by efflux of time,
since a clear case of abandonment is made out.
14. Yet another issue raised by Sri.T.P Sajan, the Special
Government Pleader (Forests) is that C schedule pathway passes
through B schedule reserved forest and that without complying with
the provisions of the Forest (Conservation) Act, 1980, no right to use
the pathway can be claimed. This Court feels that the said question is
only incidental. Once this Court has held that no claim to use the
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pathway under a reserved forest can be made otherwise than under
Section 16 of the Kerala Forest Act, 1961, the application of the
provisions of the Forest (Conservation) Act, 1980 does not arise for
consideration. But for the sake of completion, this issue is also
discussed especially in view of Ext.B1 letter.
15. The Forest (Conservation) Act, 1980 was promulgated to
provide for conservation of forests and for matters connected
therewith or ancillary or incidental thereto. Section 2 of the Forest
(Conservation) Act, 1980, provides that if a reserved forest is to be
used for non-forest purposes, it must be preceded by the prior
approval of the Central Government and that the State Government
cannot permit any person to use the reserved forest for non-forest
purposes unless so permitted. This is precisely the reason why the
plaintiff sent Ext.B1 letter to the Forest Range Officer seeking
permission.
16. As regards the contention of Sri M.P.Madhavankutty, the
learned counsel appearing for the respondent/plaintiff that, the
Forest (Conservation) Act, 1980 cannot apply to the present case since
the plaintiff had been enjoying the right to use C schedule pathway
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right from its inception, this Court finds it difficult to accept the said
plea for multiple reasons; (a) The possession of the plaintiff is in
continuation of the possession of his predecessor. The report of the
Commissioner shows that the adjacent property to A schedule is that
of the plaintiff’s father. This leads to an inference that the plaintiff was
never using C schedule pathway which passes through the reserved
forest and that the entry of the plaintiff to A schedule property was
through his adjacent property; (b) It has come out in evidence that
the property of the plaintiff’s father adjacent to the plaintiff’s property
has got an alternate way and that C schedule property is not the sole
pathway through which access to A schedule property is made; and (c)
The plaintiff failed to show that he had entered into an agreement
under Section 16 of Kerala Forest Act, 1961 to use ‘C’ Schedule
pathway. Thus, the request, if any, under Ext.B1 can be entertained
only in terms of the provisions contained under the Forest
(Conservation) Act, 1980.
17. Albeit, once this Court has concluded that the right of
easement by prescription is not available through a forest land unless
otherwise provided under Section 16 of Kerala Forest Act, 1961, then
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necessarily, the right to use a way which passes through the reserved
forest can only be in terms of the conditions specified under the
provisions of the Kerala Forest Act, 1961 and, hence, there cannot be
any unilateral declaration of right by the civil court without following
the procedure prescribed under the Kerala Forest Act, 1961.
Accordingly, the second substantial question of law [No.d)] is
answered in favour of the appellants and against the
respondent/plaintiff.
Accordingly, the appellants are entitled to succeed.
Consequently, the appeal is allowed by reversing the judgment and
decree dated 21.2.2023 in AS No.71/2008 of the Sub Court,
Nedumangad and restoring the judgment and decree dated 8.8.2008
in OS No.85/2007 of the Principal Munsiff’s Court, Nedumangad.
The dismissal of OS No.85/2007 is thus affirmed. No order as to costs.
Sd/-
EASWARAN S.
JUDGE
jg