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 4TH MARCH 2009 / 13TH PHALGUNA 1930 MFA.No. 33 of 2004() -------------------- OA.38/2000 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): RESPONDENTS. -------------------------- 1. THE STATE OF KERALA PRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKODE, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER RESPONDENT(S): APPLICANT. ------------------------- KANDAMUTHAN S/O.KUNJAN, CHATHANKODE HOUSE, ERIMAYUR, ALATHUR. ADV. SRI.D.KRISHNA PRASAD FOR R1 SRI.D.NARENDRANATH FOR R1 SRI.M.HARISHARMA FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 33 of 2004 & Cross Objection No.114 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2009 JUDGMENT Balakrishnan Nair, J. M.F.A. No. 33 of 2004 The respondents in O.A.No. 38 of 2000 before the Forest Tribunal, Kozhikode are the appellants. The respondent herein was the applicant. The Original Application was filed claiming title and possession over 2.44 Acres of land in old Survey No. 408/2 (new Sy.No.507/2 & 16) in Coyalmannam amsom desom, Coyalmannam I Village, Alathur Taluk. 2. The applicant submitted that the O.A. schedule property, along with other items of properties, were in the possession of the applicant's father, as a tenant, under Kuthiravattam Swaroopam and one Smt.Meenakshi, Vadakkumpuram, Erimayur was the intermediary. Applicant's father was paying rent to the latter. In 1972, the applicant's M.F.A.No. 33 of 2004 & Cross Objection No.114 of 2004 2 father filed O.A. 881 of 1972, for purchase certificate of the above property. As per Order dated 19.4.1976, the said Original Application was allowed by the Land Tribunal and purchase certificate has been issued to his father. After the death of his father, he, along with his brother and sister, are in possession of the property. Recently, the Forest Officials started interfering with their possession. Therefore the above Original Application was filed praying for a declaration that the O.A. schedule property is not private forest. Even assuming it to be private forest, it is vested in the applicant and the other legal heirs of his father under Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. 3. The appellants, who are the respondents in the Original Application, resisted the application, contending that the property is part of private forest. The said property is part of V.F.C. Item No.224/1 of Notification No. 82055/FS 2/76 dated 11.3.1997 concerning the Nellekkavu Bit-1 Malavaram. The O.A. schedule property was omitted to be included in the original notification and M.F.A.No. 33 of 2004 & Cross Objection No.114 of 2004 3 therefore, an erratum notification was issued. The applicant has no possession or title over the property. It is a private forest covered by the Madras Preservation of Private Forests Act,1949. Now, as a private forest, it is vested in the Government with effect from the appointed day, it was submitted. 4. From the side of the applicant, PWs. 1 and 2 were examined and from the side of the respondents/appellants, RW1, the Forest Range Officer, was examined. Exts.A1 to A7 were produced on the side of the applicant and Exts.B1 and B2 were produced by the appellants. Ext.C1 is the Commissioner's report and Ext.C2 is the Commissioner's plan. The Tribunal, relying on the purchase certificate issued by the Land Tribunal, Coyalmannam and the patta issued pursuant to it, held that 1.40 acres in Sy.No.408/2 (RS 507/2 & 16) is not private forest and the Original Application was allowed to that extent. Aggrieved by the above direction, this appeal is filed. 5. The learned Special Government Pleader, appearing for the appellants, submitted that the Land Tribunal's order is not binding on M.F.A.No. 33 of 2004 & Cross Objection No.114 of 2004 4 the State. In support of that submission, reliance was placed on the decision of this Court in State of Kerala v. C.J. Alexander (ILR 1993(1) Kerala Series 731). The learned Government Pleader also submitted that the property was not identifiable going by Exts.A1 and A2. The Commissioner has identified the property not with reference to those documents, but with reference to the boundaries shown in the O.A. schedule. In short, it cannot be ascertained whether the property covered by the purchase certificate is actually the property over which the applicant claimed possession. In the absence of proof of the above basic fact, the Original Application should have been dismissed, it is submitted. 6. The learned counsel for the respondent/applicant, on the other hands, submitted that regarding identification of the property, the respondents did not raise any dispute before the Tribunal. No such contention was raised in the Appeal Memorandum also. The appellants, though filed an objection against the Commissioner's report, the same is totally silent on the above point. The first point in M.F.A.No. 33 of 2004 & Cross Objection No.114 of 2004 5 the said report is concerning identification of the property. The learned counsel also pointed out that now the property is bounded on all four sides by private lands. On the northern boundary, there was a rubber estate. There was some dispute between the owner of that property and the Forest Department concerning the same, which was the subject matter of another Original Petition. Now that property has been declared to be not private forest and delivered to its owner. The fact that the property is surrounded by private property on all sides, further re-inforce the claim of the applicant that the scheduled property is not private forest. Therefore, the learned counsel for the applicant prayed for dismissal of the appeal. 7. We went through the depositions of the witnesses and perused the records. We notice that the Commissioner has identified the property based on the boundaries shown in the schedule. A portion of that property is part of the third item in the purchase certificate. At any rate, the survey numbers are common. If identification was not proper and the property covered by Sy.No.408/2 in respect of which patta was M.F.A.No. 33 of 2004 & Cross Objection No.114 of 2004 6 granted was some other property, the appellants could have raised that objection before the Tribunal. From the tax receipts produced, it is clear that the mutation has been carried out based on the Land Tribunal's order and the patta. That means, the property can be identified from the survey sketch available in the office of the Village Officer or the Taluk Surveyor. So, if the property scheduled is different from the property covered by Exts.A1 and A2, there was no difficulty for the appellants to raise that objection and draw the attention of the Tribunal to that fact. The facts not disputed or not objected can be taken as admitted and for proving the same, there need not be any further evidence. So, the objection raised by the learned Special Government Pleader before this Court that the property is not properly identified, cannot be accepted. 8. The next point to be considered is whether the order of the Land Tribunal is binding on the State and whether based on that order a finding can be rendered that the applicant was a cultivating tenant. Admittedly the property belonged to Kuthiravattam Swaroopam and M.F.A.No. 33 of 2004 & Cross Objection No.114 of 2004 7 the applicant or his predecessor in interest was the cultivating tenant. Such properties are excluded from vesting. It is true that patta granted by the Land Tribunal will not be binding on the Forest Department, as they are not parties to it. But in this case, we notice that Ext.A2 is not an order passed by collusion of tenant and landlord. In fact the intermediary objected. The Tribunal called for a report from the Revenue Inspector and found that certain properties were held and cultivated by the applicant and therefore, the Original Application was allowed. 9. We feel that Exts.A1 and A2 can be relied on to find that the predecessor in interest of the applicant was in possession and cultivation of a portion of the schedule property to the extent it is covered by the order of the Land Tribunal. Though the Tribunal did not give any reasons, we find that its finding is justified and valid in view of the materials on record. The Tribunal has correctly found that out of the O.A. schedule items, an extent of 1.40 acres in Sy. No. 408/2 (R.S.No. 507/2 & 16) alone is in the possession and M.F.A.No. 33 of 2004 & Cross Objection No.114 of 2004 8 cultivation of the applicant. So, we find no reason to interfere with the order of the Forest Tribunal. 10. Accordingly the M.F.A. is dismissed. Cross Objection No.114 of 2004 In view of the reasons which persuaded us to affirm the order of the Forest Tribunal, we find that the cross objection is not maintainable. Accordingly, it is also dismissed. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm