IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 MFA.No. 553 of 2003(E) ---------------------- (AGAINST THE ORDER DT.26.2.2003 IN O.A.NO.91/1998 ON THE FILE OF THE FOREST TRIBUNAL, KOZHIKODE.) ------------------------------------------------- APPELLANT(S): -------------- VINCENT KURIAKOSE, S/O. KURIAKOSE, MANNANAN (H) CHAKKITTAPPARA, KAKKAYAM, KOZHIKODE DISTRICT. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD. SPECILA GOVERNMENT PLEADER, SRI.M.P.PRAKASH FOR R1 & R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.No. 553 of 2003 ORDER ON I.A.NO.202/2003 IN M.F.A.NO.553/2003 DISMISSED. SD/- K.BALAKRISHNAN NAIR, JUDGE 3.2.2009. SD/- K.SURENDRA MOHAN, JUDGE //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. --------------------------------- M.F.A. No.553 OF 2003 ---------------------------------- Dated this the 3rd day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The applicant in O.A.No.91/98 before the Forest Tribunal, Kozhikode, is the appellant. The respondents therein are the respondents. The dispute in this case relates to one acre of land. The applicant got 15 acres of unsurveyed land from his father as per Annexure-A8, registered gift deed No.2270/1982 of SRO, Naduvanur. The applicant submitted that his father got 100 acres of land in 1948 under a lease arrangement. The lessee planted rubber in that property. Since it was a rubber plantation raised before 1964, it was exempted from the purview of ceiling provisions under the Land Reforms Act. His father gifted to him 15 acres out of the above 100 acres. Thereafter, he is in possession and enjoyment of the said property. Five acres including the disputed area were replanted with rubber by him in 1982. While so, the forest officials encroached into the property and put jundas and thereby M.F.A.No.553/2003 2 annexed one acre of rubber plantation to the vested forest on the southern and south eastern side of his property. Therefore, aggrieved by the said encroachment, he moved the civil court. Since civil suit was not maintainable, he was constrained to file the present original application. The respondents resisted the application contending that temporary cairns were put on the boundary of the vested forest at the time of preliminary survey. While so, the applicant encroached into the disputed area in the vested forest and planted rubber there. When final survey was conducted, in the place of temporary cairns, pakka jundas were erected. So, the respondents prayed for dismissal of the original application. 2. From the side of the applicant, he got himself examined as PW1. He marked Exts.A1 to A11. From the side of the respondents, RW1 and RW2 were examined and Exts.B1 to B4 series were marked. Apart from them Exts.C1 to C3, the Commissioner's report and plans were produced and marked. At the applicant's instance, documents X1 series were also produced and marked, which were the documents relating to the M.F.A.No.553/2003 3 registration with the Rubber Board of his rubber estate and other related documents. 3. The Tribunal considered the evidence on record and found that the petitioner has failed to get the 15 acres, owned by him surveyed by the Commissioner, to show that the disputed property was part of it. In view of the above position, it cannot be decided whether the disputed property was part of the vested forest or part of the holding of the petitioner under Ext.A8. Based on that finding, the Tribunal dismissed the original application. 4. We heard the learned counsel Mr.V.V.Surendaran for the appellant/applicant. He took us through the deposition of the witnesses, the various documents produced from his side and also the report of the Commissioner. The learned counsel submitted that in case, this Court upholds the findings of the Tribunal, the applicant may given a chance to identify his property and show that the disputed property forms part of it. We also heard Mr.Prakash, the learned Special Government M.F.A.No.553/2003 4 Pleader, Forests. He submitted that the burden is on the applicant to show that the disputed property is part of his property. He has failed to do that. Therefore, the Tribunal has rightly dismissed the original application. The present prayer for remanding the matter is unsustainable in law, it is submitted by the learned Special Government Pleader. 5. We have perused Ext.A8. The same would show that the 15 acres assigned to him has clear boundaries. If the petitioner got surveyed the said property with the assistance of the Commissioner and Surveyor, it was easy to find out whether the disputed property forms part of it or not. With the materials on record, it cannot be found whether the disputed property forms part of the property assigned under Ext.A8. We fully endorse the view of the Tribunal in this regard. We find no reason to take a different view. The case cannot be remanded for the mere asking for it. The appellant got sufficient opportunity to adduce evidence regarding the identify of his property, which he got under Ext.A8. If he did not avail of that opportunity, the appellant should blame himself. Going by the M.F.A.No.553/2003 5 facts of the case, we find no ground has been made out for remanding of the case to the Tribunal to give a chance to the applicant/appellant to adduce fresh evidence. In the result, the Miscellaneous First Appeal fails and it is accordingly dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (K.SURENDRA MOHAN, JUDGE) ps