IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 MFA.No. 41 of 2004() -------------------- AGAINST THE ORDER DATED 06/06/2003 IN OA. 24/2000 AND OA.23/2000 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS/RESPONDENTS: ------------------------------------------ 1. THE STATE OF KERAL, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY SPL. GOVERNMENT PLEADER (FORESTS) SRI.M.P. PRAKASH RESPONDENT(S): --------------- 1. SHAHUL HAMEED, S/O.KUNHAMMED RAWTHER, CHEMPAMODE, KAVASSERRY, ALATHUR TALUK (RESPONDENT IN OA 23/2000) 2. VELLAKUTTY @ ASSANAR, S/O.KUNHAMMED RAWTHER, CHEMPANODE, KAVASSERY, ALATHUR (RESPONDENT IN OA 24/2000) ADV. SRI.K.MOHANAKANNAN FOR R1 & R2 SMT.A.R.PRAVITHA FOR R.1,2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 41 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of February, 2009 JUDGMENT Balakrishnan Nair, J. The respondents in O.A.No. 23 and 24 of 2000 before the Forest Tribunal, Kozhikode have filed this Miscellaneous First Appeal. 2. The brief facts of the case are as follows. The applicants in the above Original Applications were brothers. The disputed property in the original applications, along with other properties, were held by the parents of the applicants as tenants of Venkiteswara Pattar, who, in turn, was a kanam right holder under Nallekkavu Devaswom. The parents of the applicants partitioned their properties in 1972 as per Ext.A1 registered Partition Deed. In fact their children did not have any right in the property and therefore practically the said Deed is a composite Gift Deed, where under the parents gifted their property in M.F.A.No. 41 of 2004 2 favour of their children. 'A' schedule property of Ext.A1 was allotted to the applicant in O.A. 23 of 2000 and Item No.8 in that schedule was the disputed property. 'F' schedule property was allotted to the applicant in O.A. 24 of 2000 and item No.7 in the said schedule is the disputed property. The kanam rights of Venkiteswara Pattar under Nallekkavu Devassom was assigned in favour of the applicants by the legal heirs of the said kanam right holder by Exts.A3 and A4 documents dt.5.4.1978. 3. The applicants claimed that the disputed properties were being cultivated with tapioca. In the case of the property in O.A. 24 of 2000, it was cultivated with cashew also. Since on the appointed day the properties were under tapioca cultivation and cashew cultivation, they claimed exemption of the properties under Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The property, after the assignment made in 1972, were in the possession of the applicants. While so, in 2000 the Forest officials interfered with their possession. In the above background, the original applications were filed. M.F.A.No. 41 of 2004 3 4. The appellants, who were the respondents in the original applications, filed objections contending that the property in question was private forest. There was no cultivation in the properties on the appointed day and therefore they vest in the State on 10.5.1971. They denied the averments of the applicants and prayed for dismissal of the applications. From the side of the applicants, they got themselves examined as PWs. 1 and 2. From the side of the respondents, the Forest Range Officer was examined as RW1. From the side of the applicants Exts.A1 to A10 and A11 series were marked. From the side of the respondents Ext.B1 notification published on 9.4.2001, which was an erratum notification, was produced. The said notification shows that the disputed property was also covered by the said notification. From the side of the respondents Exts.B1 to B3 were also marked. The Commissioner visited both the properties and filed separate reports and plans and they were marked as Exts.C1 to C4. 5. The Forest Tribunal, after hearing both sides and analysing the evidence on record, found that the property is private forest, which is liable to be vest in the State on the appointed day. But it was further M.F.A.No. 41 of 2004 4 held that the applicants are entitled to get the benefit of Section 3(3) of the above Act. The aggrieved respondents in the original applications have, therefore, filed this appeal. 6. We heard the learned counsel on both sides. But having regard to the nature of the order we propose to pass, we are not referring in detail to the contentions of both sides. We notice that the applicants claimed the protection of Section 3(2) of the Act, but relief was granted under Section 3(3). Same is not permissible and the order of the Tribunal is, therefore, unsustainable in law. Further, from the deposition of PW1, it would appear that the parents of the applicants were holding more than 50 acres of land till the same was partitioned as per Ext.A1 in 1972. So, to get the benefit of Section 3(2) of the Act, the person cultivating the land should not be holding properties beyond the ceiling limit provided under the K.L.R. Act. We notice that there is no pleadings or evidence on the above aspect. 7. In view of the above position, we set aside the order of the Tribunal to the extent it holds that the applicants are entitled to get the benefit of Section 3(3) of the Act. The Tribunal is directed to consider M.F.A.No. 41 of 2004 5 the claim of the applicants afresh under Section 3(2) of the Act. While considering the same, the Tribunal shall also examine whether the parents of the applicants, who were holding the scheduled properties as on 10.5.1971, were holding land in excess of the limit under the K.L.R. Act. Both sides are given liberty to adduce evidence on this point. In other words, additional evidence on other points need not be allowed to be adduced. 8. In the result, this appeal is allowed. The impugned common order in O.A.Nos. 23 and 24 of 2000 is set aside and those applications are remitted to the Forest Tribunal for fresh disposal, as stated herein above. The Tribunal shall endeavour to pass final orders, as early as possible, preferably within one year from today. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) tm Judge M.F.A.No. 41 of 2004 6