IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 MFA.No. 128 of 2006(A) ---------------------- OA.21/2002 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): -------------- 1. A.K.RAJU, S/O. LATE KUNJIRA, PACHATHINI HOUSE, THENUR AMSOM AND DESOM, PALAKKAD. 2. A.K.THANKAMANI, D/O. LATE KUNJIRA, PACHATHINI HOUSE, THENUR AMSOM AND DESOM, PALAKKAD. 3. A.K.KASUMANI, S/O. LATE KUNJIRA, PACHATHINI HOUSE, THENUR AMSOM AND DESOM, PALAKKAD. 4. A.K.RUGMINI, D/O. LATE KUNJIRA, PACHATHINI HOUSE, THENUR AMSOM AND DESOM, PALAKKAD. 5. A.K.UNNIKRISHNAN, S/O. LATE KUNJIRA, PACHATHINI HOUSE, THENUR, AMSOM AND DESOM, PALAKKAD. 6. A.K.PREMA, D/O. LATE KUNJIRA, PACHATHINI HOUSE, THENUR AMSOM AND DESOM, PALAKKAD. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT, TRIVANDRUM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD. 3. A.K.MANIKANDAN, S/O. LATE KUNJIRA, PACHATHINI HOUSE, THENUR, AMSOM AND DESOM, PALAKKAD. BY GOVERNMENT PLEADER SRI.M.P.PRAKASH. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.F.A.No. 128 of 2006 ------------------------------- Dated this the 16th November, 2009 J U D G M E N T Raman, J. Appellants-petitioners filed O.A.No.21 of 2002 before the Forest Tribunal, Kozhikode, for a declaration that the Petition Scheduled Property is not a Private Forests vested in Government and in the alternative for exemption under Section 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act 26/71, herein after referred to as 'the Vesting Act' for short. 2. According to the appellants, the petition scheduled property comprised in Survey Nos.7/2A1 and 3A (resurvey No.84/3) in Parali-I Village of an extent of 4.40 acres was the subject matter of the lease obtained from the Jenmi Mannuur Nayarveedu family, as evidenced by Ext.A1 lease deed of the year 10.4.1961. Thereafter, this was under cultivation MFA.128 of 2006. 2 with various seasonal crops and that this was never a private forest. It is also contended that in order to attract the provisions of MPPF Act, there may be a total extent of 100 acres, and according to them, the land on the northern side of the property of the petitioners is a rubber plantation and beyond the northern side of that plantation is a private forest. Therefore, if this plantation is taken as disruption to the continuity of 100 acres, then this land will not fall under the MPPF Act. The Tribunal further held that the land was encroached on the northern side by somebody, but that will not loose its continuity. But there is no finding that the said rubber plantation was originally a part of the Private forest governed by the provisions of the MPPF Act. As a matter of fact, if the land in question is included in the notification, certainly, if the rubber plantation lying north of it would have also been included in the notification and the outcome of treating the rubber plantation as a private forest is a matter specifically within the knowledge of the Forest Department. Once evidence is adduced to show that land on the northern side is either a private forest or not, then it could be MFA.128 of 2006. 3 said as to whether the continuity of 100 acres is lost or not. In the absence of any such attempt, it is not possible to hold that the land in question was governed by the provisions of the MPPF Act. Better evidence could have been adduced by either side on this point. 3. Though the appellants have produced tax receipts to show proof of possession, read with Ext.A1, the Tribunal did not accept the said evidence only for the reason that the tax receipt did not contain the recitals. But PW.1 was examined in the case and Ext.A18 has been produced to show that this land originally belonged to the Mannuur Nayarveedu Tharavadu and this was included in the partition suit. In such cases, the approach of the Tribunal should be to consider the over all evidence adduced in the case, viz., whether originally the owner is the lessor as contended by the petitioners; whether for that partition, Ext.A18 could have been looked into and then to see whether the tax receipt produced would relate to the land in question, and whether the petitioners have got any other land MFA.128 of 2006. 4 other than this to come to the conclusion that the receipt, Ext.A1, is the tax receipt relate to the same property or not. 4. When it is contended that the land was cultivated with seasonal crops, the fact that it could not be proved by any documentary evidence is not proper, because even if the other larger extent is either a plantation or cultivation of agricultural crops, there could be a small extent of land left as Paramba, and for cultivation of seasonable crops in such parambas, normally there will not be any documentary evidence of proof. Therefore, the oral testimony can certainly be looked into, and if the court is satisfied with such oral evidence, then there is nothing wrong in accepting the oral evidence regarding the nature of the cultivation that has been effected. We find that the approach made by the Tribunal is not proper. For all the above reasons, we find that the matter needs re- consideration. 5. Accordingly, we set aside the impugned order. The matter is remitted back to the Tribunal for fresh MFA.128 of 2006. 5 consideration, with liberty to the parties to adduce further evidence. The Tribunal shall, after considering the additional evidence, consider the matter afresh and pass final orders, in accordance with law. The appeal is thus allowed by way of remand. The parties shall appear before the Tribunal on 11.1.2010. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.