IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 MFA.No. 109 of 2004() --------------------- OA.3/2001 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER SRI.M.P.PRAKASH RESPONDENT(S): APPLICANTS ------------------------- 1. KUTTIKRISHNAN NAIR, S/O. KARTHIAYANIAMMA. 2. MADHAVIAMMA, D/O.KARTHIAYANIAMMA. 3. KUNHULAKSHIAMMA, D/O.KARTHIAYANIAMMA. 4. NARAYANAN NAIR, S/O.KARTHIAYANIAMMA. 5. MADHAVAN NAIR,, S/O.KARTHIAYANIAMMA OF CHERUCHATHAMKUNNATH HOUSE, VENGASSERI AMSOM DESOM, OTTAPPALAM TALUK. ADV. SRI.VINOD KUMAR.C FOR R1, 2, 4, 5 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 23/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.F.A.No.109 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2010 JUDGMENT Basheer, J. The appellants are the State of Kerala and custodian of vested Forests, Palakkad District. They impugn the order passed by the Forest Tribunal, Kozhikode in O.A.No.3/2001. 2. By the impugned order, the Tribunal has held that the petition schedule property having an extent of 1.88 Acres in Vengasseri Amsom in Ambalapara -I village in Ottapalam Taluk, Palakkad District is not part of the Private Forest and that respondents/applicants are entitled for exemption under Section 3(3) of Kerala Private Forest(Vesting & Assignment)Act 1971. 3. The case of the applicants in brief in the application filed under Section 8 of the Act was that the petition schedule property was set apart to the share of their mother Karthiayani Amma in the registered partition deed of the year 1935, and subsequently in the year 1979, the petition schedule property stood alloted to the share of the MFA.No.109/04 2 applicants. They had been in peaceful possession and enjoyment of the said property ever since the allotment in their favour. However, on November 30, 2000, the officials of the Forest Department started to interfere with their possession contending that it was part of the vested forest. Applicants contended that no notification had ever been published as provided under the Act or the Rules notifying the said area as vested forest. Therefore they prayed for a declaration that the petition schedule property was not forest and that it had not vested with the Government and accordingly sought exemption under Section 3(2) and 3(3) of the Act. 4. In the counter affidavit filed by the Divisional Forest Officer, Palakkad, it was contended that the petition schedule property forms part of the vested forest known as Chirattimala, which vested with the government by virtue of Section 3(1) of the Act with effect from May 10, 1971. It was further contended that subsequent to the vesting, the forest area was demarcated and surveyed under Section 2 (1) of the Act and it was notified as Item No. 52 as per Rule 2A vide notification No.D1383/77 dated 10/10/1977 by the Custodian of Vested MFA.No.109/04 3 Forest. It was further contended that the notification was published in local Malayalam dailies having wide circulation like Malayala Manorama and Deshabhimani. It was further contended that the claim of the applicants that the petition schedule property was being put under fugitive cultivation prior to the promulgation of the Act was not correct. The applicants had never been in possession of the property nor had they carried out any agricultural operation at any point of time. Item No.52 ( VFC) in the schedule annexed to the notification, the area was in fact part of the vested forest known as Chirattimala since the promulgation of the Act. The case of the applicants that the properties originally belonged to Thiruvengappura Devaswom and that their Tharavadu obtained it from the said Devaswom on the strength of Kanam right was also denied. It was further contended that Chirattimala, of which the petition schedule property forms part, is having an extent of 140 Acres, which lies as a contiguous forest. The said forest comes under the purview of Madras Preservation of Private Forest Act and is therefore part of private forest. In short the appellants contended that the applicants had no locus standi to claim MFA.No.109/04 4 exemption not only since the petition schedule property is a part of the vested forest, but also since they never had any title over or possession of the said area. 5. One of the applicants was examined before the Tribunal as PW1 and Forest Range Officer was examined on the side of the appellants as RW1. Exts.A1 to A6 were marked on the side of the respondents/applicants and Exts.B1 and B2 on the side of the appellants. The report and plan of the Commissioner were marked as Exts.C1 to C3. 6. The Tribunal after a careful evaluation of the oral and documentary evidence available on record took the view that the petition schedule property was not part of the vested forest and that respondents/claimants are entitled to get the declaration as prayed for. 7. It is vehemently contended by Sri.Prakash, learned Special Government Pleader(Forest) that the Tribunal committed serious illegality in passing a very cryptic order without adverting to the various contentions raised by the appellants. It is pointed out by the learned Government Pleader that the question whether Chirattimala MFA.No.109/04 5 came within the purview of MPPF Act was never adverted to or considered by the Tribunal in the order. It is also contended by him that Smt.Karthiayani Amma, the predecessor of the applicants, had already obtained an order in her favour as revealed from Ext.A4. At that time the said Karthiayani Amma had no case that she was in possession of any area in addition to or in excess of what had been claimed by her in that original application. The applicants who are admittedly the successors in interest of Karthiayani Amma were therefore debarred from making yet another application seeking exemption under Section 3(2) and 3(3) of the Act. It is further contended by the learned Government Pleader that the entire burden was on the applicants to show that they had been in actual possession of the petition schedule property in order to succeed in getting a declaration under Section 3(2) and 3(3) of the Act. The applicants ought to have established their title over the area in question. More importantly they ought to have adduced satisfactory and clinching evidence to show that the petition schedule property was not part of the vested property. MFA.No.109/04 6 8. As mentioned earlier, the case of the respondents/applicants was that their predecessors were in possession and enjoyment of the petition schedule property eversince it stood allotted in their favour by virtue of the registered partition deed of the year 1935, and subsequently they came into possession in the year 1979 after yet another partition. According to the respondents/applicants, the forest officials tried to interfere with their peaceful possession and enjoyment in November 2000, which necessitated them to move the Tribunal. 9. But the case of the appellants is that the applicants had never been in possession of the petition schedule property, which forms part of the vested forest. Appellants pressed into service Ext.B1 notification dated 10th October, 1979 in support of the above contention. It was on the strength of the said contention that the appellants had contented that the application was time barred. But as rightly noticed by the Tribunal, the appellants had failed to produce any relevant document to show that the notification had infact been published either in the locality or in any newspaper. 10. The next contention raised by the appellants before the MFA.No.109/04 7 Tribunal was that Smt.Karthiayani Amma, the predecessor-in-interest of the applicants, had claimed exemption under Section 3(2) and 3(3) of the Kerala Private Forest (Vesting & Assignment) Act, 1971, in respect of certain holdings which were stated to be in her possession and enjoyment, before the Forest Tribunal in O.A.No.1048/1974. The Tribunal had, after holding an enquiry, allowed the claim as could be revealed from Ext.A4 order dated 18th August, 1977. According to the appellants, Smt.Karthiayani Amma did not have a case that any property other than what was incorporated in the petition schedule in that Original Application, was also in the possession and enjoyment of her family. It is thus contended by the appellants that the applicants, who are admittedly the successors-in-interest of Smt.Karthiayani Amma, are precluded from claiming right over any land other than what was covered under Ext.A4 order. 11. But in response to the above contention, it is pointed by the respondents/applicants that as early as in 1935, when Ext.A1 registered partition deed was executed, the property in question was described as “Kaithamukku paramba”. The family members, who were the allotted MFA.No.109/04 8 shares in the 1935 partition deed, had thereafter executed Ext.A2 partition deed in the year 1978 dividing their properties obtained by them under the earlier partition deed. It was also pointed out by the respondents that in Ext.A3 proceedings of the Taluk Land Board, Ottapalam, the petition schedule properties were included. Similarly, in Ext.A5 draft statement issued by the Taluk Land Board in the very same proceedings also, these properties were mentioned. It is thus contended by the respondents that these properties had all along been treated as 'paramba' or cultivated land ever since 1935 or even earlier than that. 12. In this context, the respondents also point out that the northern boundary of the petition schedule property is admittedly not a forest land. The southern boundary also is not a forest land as is admitted by the appellants themselves. Therefore, the contention raised by the appellants that the petition schedule property in part of Chirattimala is totally incorrect. For that reason alone, the contention raised by the appellants that the land involved in this case is covered under the Madras Preservation of Private Forest Act is wholly MFA.No.109/04 9 untenable, it is contended by the respondents. There is considerable force in the said contention. 13. In this context, it may be noticed that in the counter affidavit filed by the appellants before the Tribunal, it was admitted that the eastern boundary of the petition schedule property is a private land. This was admitted by RW1 while he was examined before the Tribunal also. He had further admitted that the southern boundary also is a private land. This property was the subject matter of O.A.No.42/2000 filed by another family member of the applicants. Thus it had come out in evidence that atleast on two sides of the petition schedule property there are private holdings. 14. It may also be noticed that the Advocate Commissioner deputed by the Tribunal had inspected the petition schedule property and submitted his report and two plans, which were prepared with the assistance of the Taluk Surveyor, Ottappalam. A perusal of the report and plans (Exts.C1 to C3) will unambiguously show that the petition schedule property is not a forest land as alleged by the appellants. The Advocate Commissioner found that the eastern boundary of the petition MFA.No.109/04 10 schedule property was a cultivated land and beyond that there lay a road and other tenements. The above road extended on the southern boundary also. On the western end of the road lay the property covered under O.A.No.42/2000 and other holdings. Significantly, on the western side also the Commissioner found that there was a tenement just adjoining the forest land. The northern side ofcourse is the private holding which was admittedly the subject matter of O.A.No.1048/1974. The Commissioner also found that the remaining portion on the northern side was also cultivated with rubber and some other portions were in the possession and enjoyment of some tenants. 15. We have referred to all these aspects only to indicate that the contention raised by the appellants that the petition schedule property being part of the private forest situated in the district of Malabar would fall within the ambit of the Madras Preservation of Private Forests Act, 1949 (hereinafter referred to as 'MPPF Act') is wholly untenable. Sub-section (2) of Section 1 of the MPPF Act states that the Act would apply “to private forests in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres”. MFA.No.109/04 11 As mentioned by us earlier, way back in 1935 itself petition schedule property and the adjoining lands were described as 'paramba' (cultivated land) in the registered partition deed. Even thereafter, these properties were the subject matter of the proceedings before the Taluk Land Board. In that view of the matter, we are not persuaded to accept the contention raised by the appellants that the case may have to be remitted to the Tribunal to consider the question of applicability of MPPF Act. 16. For the reasons stated above, we are also not impressed with the contentions raised by the appellants that the application submitted by the respondents/applicants before the Tribunal was hit by the principles of resjudicata. Going by Exts.A1 and A2, it is evident that the respondents/applicants have title and possession over the petition schedule property. Therefore, the applicants are entitled to get a declaration under Section 3(2) and 3(3) of the Act. 17. Having carefully perused the entire materials available on record, we are satisfied that the Tribunal was justified in allowing the application submitted by the respondents. We do not find any reason MFA.No.109/04 12 to interfere with the impugned order. In the result, the appeal fails and it is accordingly dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv/ps