IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 MFA.No. 182 of 2001() --------------------- OA.70/1998 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT: ---------------- DEVADASAN, S/O.VELAYUDHAN, MELAPURAKUNNAM, KKANNAMBRA, ALATHUR TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER SRI.P.B.KRISHNAN RESPONDENTS: -------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKOT, PALAKKAD. 3. KUNJU @ KUNJAN, S/O.KUPPAI, CHENAMKODE HOUSE, NECHULI, KUZHALMANNAM, ALATHUR. BY GOVERNMENT PLEADER SRI.M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 24/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.182 of 2001 ----------------------------------------- Dated this the 24th day of January, 2008 JUDGMENT Koshy, J. Appellants herein filed an application before the Forest Tribunal for a declaration that 2 acres 25 cents of land in R.S.No.420/1 of Kuzhalamandam Amsom Desom is not a vested forest and if it is a vested forest, they are entitled to exemption under Section 3(2) of the Kerala Private Forest (Vesting and Assignment) Act. It is further submitted that they possessed the land within the ceiling limit. It is their case that their predecessor- in-interest got title to the land as per Exhibit A5 purchase certificate dated 18.2.1977. According to the claimant, Exhibit A5 purchase certificate of 1977 was issued finding that the appellant was a cultivating tenant when Land Reforms Act, 1965 came into force. That shows that even in 1965 when the Land Reforms Act came into force, they were actually cultivating the land. There is no case for the respondents State that the above purchase certificate was obtained by fraud. Thereafter, Exhibit A3 sale deed was executed by the father of the petitioner in favour of one Vasudevan M.F.A.182/01 2 Nair on 26.6.1981. Exhibit A2 dated 18.3.1986 shows that Vasudevan Nair sold the same to the father of the petitioner. Exhibit A1 is the settlement deed settling the property by his father to the present appellant. PW2 Kunchan, predecessor-in-interest, who got the purchase certificate, deposed that the land in question was cultivated even before the Land Reforms Act came into force and he obtained the same on lease. Purchase certificate issued gave him absolutely title. The details of cultivations done by him were deposed by him. The Commissioner's report, Exhibit C1, shows that at the time of inspection, the land was cultivated mainly with rubber. Apart from the above, he saw one coconut tree aged 20 years, 2 palyra trees aged 20 years and one jack tree aged 20 years. It was also found that the four sides of the property are covered by private lands and not forest. Exhibit A4 shows that regarding the adjacent property, the Forest Tribunal allowed a case declaring that it is not a private forest. The Tribunal was of the view that the purchase certificate did not show the exact details of boundaries. But, it can be seen that when Kunchan sold the property to Vasudevan Nair and Vasudevan Nair sold to the father of the petitioner, boundaries were seen. Exhibit C2 plan shows the land in question and there is no real difficulty regarding the identity of the land and it is 2.25 acres of land that was received by M.F.A.182/01 3 Kunchan and Exhibits A5, A1 and A2 speak about only the extent of 2.25 acres of land. Therefore, we are of view that identity of the property is not disputed. All other sides are covered by private properties. Evidence of PW2 and purchase certificate show that it was a cultivated land at the time when the Land Reforms Act came into force. Admittedly, there is no contention that the land is covered by the MPPF Act. The definition of private forest under Section 2 of the Kerala Private Forest (Vesting and Assignment) Act shows that the land in Malabar to be a private forest, it should be a private forest covered by the MPPF Act. Here, even though the land was situated in the erstwhile Malabar area, it was not covered by the MPPF Act. Therefore, it cannot be a private forest. If it is a private forest, it will not vest under Section 3(1) of the Kerala Private Forest (Vesting and Assignment) Act. In this case, we are of the opinion that in view of the evidence adduced, it is not a vested forest at all. The appellant is entitled to the declaration that it is not a private forest. In the above circumstances, we set aside the order of the Tribunal and allow the application. The appeal is allowed. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. M.F.A.182/01 4 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.182 of 2001 ------------------------------ JUDGMENT 24.1.2008