Can the Forest Tribunal Render a Finding on Title so as to Operate as Res Judicata?

No. In view of the AUTOMATIC vesting of private forests in the Government, the enquiry before the Forest Tribunal is confined to determining whether the land is a private forest or cultivated land. The Act does not contemplate a substantive adjudication of title. Any observation or finding on the TITLE is therefore merely incidental or collateral to the Tribunal’s principal enquiry (FOREST or CULTIVATED land), and cannot be treated as a matter directly and substantially in issue or as ‘necessary or essential‘ for the determination of the matters under the Act.

Saji Koduvath, Advocate, Kottayam.

Part I

Introduction

The authoritative modern decisions reflect a ‘strict and technical’ interpretation of res judicata, in contrast to earlier broader views that required only a ‘decision on the same matter‘, or a ‘similar issue‘ in both suits.

The modern trend, in substance, requires the following:

The ‘same issue‘ must have been adjudicated in the former suit.
Finding on the issue in the earlier suit must have been ‘necessary or essential‘.
That is, the issue must have been heard and decided consciously.
The parties should have had an opportunity to meet the contentions on the matter.

Sec. 11 of the Code of Civil Procedure deals with Res Judicata. It reads as under:

“Res Judicata -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

Res Judicata: The Issue Should Have Been ‘Necessary to be Decided’

In PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

“57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well.”

Should the Matter be in “Actual Issue”, Or Need be in “Substance” alone

Sec. 11 CPC says as to “suit or issue in which the matter directly and substantially in issue“.

Modern Trend (Stricter Approach): Same Issue Must Have Been Adjudicated in the Former Suit giving due emphasis to ‘directly and substantially in issue‘

In M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, paras 439 and 446 are noteworthy. They read as under:

439. The applicability of Section 11 is premised on certain governing principles. These are:
- .(i) The matter directly and substantially in issue in the suit should have been directly and substantially in issue in a former suit;
- (ii) The former suit should be either between the same parties as in the latter suit or between parties under whom they or any of them claim litigating under the same title;
- (iii) The court which decided the former suit should have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised; and
- (iv) The Issue should have been heard and finally decided by the court in the former suit.
446. There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits.”

Part II

If Forest Tribunal to Render Finding on Title – Established Principles

To answer the question whether the Forest Tribunal can render a finding on title, the following well-established principles of law are germane.

1. A finding will not be res judicata if :
- observation or finding touching upon the title is incidental and collateral to the principal issue falling within the Tribunal’s jurisdiction [Jamia Masjid v. K. V. Rudrappa 2021 AIR SC 4523; 2022-9 SCC 225; Sri Gangai Vinayagar Temple v. Meenakshi Ammal, 2015 3 SCC 624; Asrar Ahmed v. Durgah Committee, AIR 1947 PC 1].
- the finding is limited to the special jurisdiction of the Tribunal, and it is not a direct and substantive adjudication upon title. [Sajjadanishin Sayed v. Musa: (2000)3 SC 350]
2. A finding of a Quasi-Judicial Tribunal also may operate as res judicata in certain circumstances [Anil Paul v. South Indian Bank, 2022-2 KHC 332; 2022-2 KLT 169, Joseph v. State of Kerala: 1987(1) KLT 651; Satish Babu v. State of Kerala: 2000(3) KLT 55; Govindan Gopalan v. Raman Gopalan: 1978 KLT 315 (FB) ].
- Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, remains the locus classicus on the law relating to the exclusion of jurisdiction and the adjudicatory competence of special tribunals.
3. Civil Court jurisdiction will be barred (Dhulabhai v. State of MP, AIR 1969 SC 78) only if –
- the Statute gives a finality to the orders of the special tribunals,
- there is adequate remedy by the special tribunal to do what the Civil Courts would normally do in a suit,
- there is an express bar of the jurisdiction of the Court,
- the remedies (such as appeal) normally associated with actions in Civil Courts are prescribed by the particular Statute under which the Tribunal is constituted.

Kerala Private Forest Act, 1971 –

Section 3 of the Forest Tribunal, constituted under the Kerala Private Forest (Vesting and Assignment) Act, 1971, declares – Private forests vest in Government, automatically (State of Kerala v. Popular Estates, AIR 2021 SC 5593; 2021-6 KLT 208).

Section 3 reads as under:

“3. Private forests to vest in Government– (I) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the state of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
(2) Nothing contained in sub-sections (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation. – For the purposes of this sub-section, “cultivation” includes cultivation of trees or plants of any species.
(3) …. (4) … “

Section 8 of the Kerala Private Forest Act, 1971

Section 8 states that the disputes as to whether a land is a private forest or not, or has not (automatically) vested in the Government, are determined by the Tribunal. From the wording of Section 8, it is noteworthy that what is determined is not the title, but whether it is a private forest or not.

Section 8 reads as under:

“8. Settlement of disputes – (1) where any dispute arises as to whether- (a) any land is a private forest or not; or (b) any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may, within such period as may be prescribed, apply to the Tribunal for decision of the dispute.
(2) ….. (3) …”

Title Enquiry Not Contemplated u/S. 8; If Finding, Incidental or Collateral

It is also important to note – an independent title enquiry is not contemplated under Section 8; for, ‘all private forests’ “stand transferred to and vested in the Government ” under Section 3; therefore –

because of the statutory and automatic vesting of all private forests under Section 3, the principal enquiry is whether the land is a private FOREST or whether it is cultivated land. The Explanation to Section 3, which provides that “cultivation” includes cultivation of trees or plants of any species, makes it clear that the enquiry is directed to the character and use of the land and not to the ownership thereof.
Ownership, as such, is not the matter directly put in issue.
The finding on title/ownership, if any, will be surplusage; in any case, such a finding would remain as ‘incidental or collateral’.

Can the Forest Tribunal Render a Finding on Title so as to Operate as Res Judicata?

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