IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 MFA.No. 105 of 2006(A) ---------------------- OA.11/2003 of FOREST TRIBUNAL, KOZHIKODE APPELLANT: -------------- C.N.JOLLY, D/O. NARAYANAN, CHOONDIPURAKKAL, ANAKKAL DESOM, KANIPPAYYUR AMSOM, THALAPPALLY TALUK. BY ADV. SRI.A.R.GANGADAS RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS ARANYABHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. SPL. GOVT. PLEADER FOR FOREST SRI. M.P. PRAKASH SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.F.A. NO. 105/2006 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 29TH DAY OF SEPTEMBER, 2009. J U D G M E N T Raman, J. In respect of an extent of 2.25 acres of land comprised in R.S. No. 433/1A (1.50acres)and 432/3 (.75 acres) in Malampuzha Village, the appellant, as applicant, sought for declaration that it is not vested with the Government under the Private Forest ( Vesting and Assignment) Act (hereinafter referred to as 'the Act'). Two contentions were raised (i) that it is not a private forest as on 10.5.1971 and alternatively, it is contended that she is entitled to get the benefit of Section 3(2) and 3(3) of the Act. The Tribunal found that Madras Preservation of Private Forests Act did apply to the land in question. Then it went on to the question whether any of the clause under (a) to (c) under Section 2F(1) of the Vesting Act was satisfied in the case. It was found that Clause (a)and (b) have no application. Regarding Clause (c) it covers land which are principally cultivated with cashew or other fruit bearing trees. Even though it was contended that the land was regularly cultivated before M.F.A. 105/2006 2 10.5.1971 the precise cultivation is not stated in the petition. Referring to the evidence in the case spoken to by PW.1 though it was contended that the land was cultivated with tapioca and plantain, the Tribunal took the stand that there was no case for him that the property was cultivated with such crops before 10.5.1971. The Tribunal proceeded on the premise that cultivation if at all by the petitioner was after the purchase in 1984. Hence Clause (c) does not come to aid the petitioner. Clause (d) excludes building sites and land appurtenant and so the shed noted by the Commissioner was held to be meant for processing rubber. Rubber was planted only in 1984 and in the absence of any evidence to show that the shed was constructed before 10.5.1971 Clause (d) was also found not attracted. Among the documents produced, Ext.A4 was considered as the only document which came into existence prior to the appointed day. The property is described in Ext.A4 as 'Nilam' and 'reared forest'. According to the applicant, the property was reared forest planted with miscellaneous trees for green manure. It was found that as per Clauses (A) to (C) to Section 2(f)(1)(i) of the Vesting Act, the disputed property cannot be considered as a property cultivated with any of the trees or crops mentioned therein. M.F.A. 105/2006 3 2. With reference to Ext.A1 document, admittedly, it was of the year 1984. It was held that since the petitioner did not own the property as on 10.5.1971 she cannot claim the benefit of Section 3(2) or (3) of the Vesting Act. Reference was also made to the decision in Koya v. state of Kerala (1987 (1) KLT 830) and accordingly, the application was dismissed, against which this appeal is preferred. 3. Heard both sides. On the basis of the evidence discussed we find that the only clause that may have any application is Clause (C) of Section 2F(1)(i) of the Vesting Act and as to whether it was principally cultivated with cashew or other fruit bearing trees or any other agricultural crop, on the evidence adduced, there is difficulty in accepting the contention as such that it was shown to be cultivated particularly with fruit bearing trees or any other agricultural crops. Though there is some evidence regarding the same, it cannot be said that the evidence will clinch the issue. However, the appellant has produced a document at the appellate stage which is an extract of the Adangal Extract issued by the Village Officer, Malampuzha and contends that as per this document, the land in question as on 10.5.1971 was a cultivable land and actually, it was cultivated. The reason for non production of the document has been stated to be that the appellant was refused to supply with a copy and subsequently, she applied for the same M.F.A. 105/2006 4 under the provisions of Right to Information Act and got a copy. We think this document requires to be considered and accordingly, we give the appellant an opportunity to prove the same before the court below and to adduce further evidence in this regard to substantiate his contention regarding as to whether the land in question was principally cultivated with any agricultural crop as on 10.5.1971. 4. He also contended that as per the meaning given in the 'Law Lexicon' to the word "punjah" means 'Land that cannot be easily watered by artificial means, depending chiefly on the falling rains for irrigation and therefore unfit for the cultivation of rice'. According to him, the land can be cultivated by other crops. 5. The alternate contention that the appellant is entitled to the benefit under Section 3(2) or (3) of the Act has been declined on the ground that she was not the owner as on 10.5.1971. Subsequently, a Full Bench of this court in Parameswara Sastrigal v. State of Kerala (2008(2) KLT 461) has clarified the position that the benefit of the said provision can be claimed by any subsequent purchaser, provided he is able to prove that the transferor was entitled to benefit of Section 3(2) or (3) of the Act. If so, he will step into the shoes of the assignor. M.F.A. 105/2006 5 6. In such circumstances, we set aside the order of the Tribunal and remand the case to the Tribunal for fresh consideration, subject to what is stated above. Both the parties shall appear before the court below on 2.11.2009. Both sides are given an opportunity to adduce additional evidence if any to support their respective contentions. The appeal is allowed by way of remand. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/-