IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 MFA.No. 36 of 2006 ------------------------------- OA.8/2003 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS: --------------------- 1. JHONYKUTTY, S/O. JOSEPH, PATHIRIPADAM, PUDUKODE, ALATHUR TALUK, PALAKKAD DISTRICT. 2. VARGHESE, S/O. -DO- -DO-. 3. ELIYAMMA JOSEPH, W/O. -DO- -DO-. 4. JOSE, S/O. -DO- -DO-. BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT. OF KERALA. 2. CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. SPECIAL GOVT. PLEADER (FOREST) SRI.M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 12/07/2010, ALONG WITH MFA NO.6 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.Nos.6 OF 2006 & 36 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of July 2010 JUDGMENT Basheer, J. These two appeals are being disposed of by this common judgment since the parties and the issues involved in them are closely related. 2. The appeals are directed against the orders passed by the Forest Tribunal, Kozhikode in two original applications filed by the appellants under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short 'the Act'). Wife and children of deceased Joseph had instituted the above applications contending inter alia that they were in possession and enjoyment of a total extent of about 15 acres in Vavulliapuram village on the strength of two assignment deeds executed by one Chamu in the year 1982. The said predecessor in interest had been keeping possession of the properties since 1968. 3. While Smt.Eliyamma (appellant in MFA No.6/2006) was the applicant in O.A.7/03, she and three of her sons filed O.A.8/03 before the Tribunal for a declaration that the petition scheduled properties are not private forests and that they are entitled to get exemption under Section 3(2) and 3(3) of the Act. There was a further prayer in both the applications that the respondents be directed to restore possession of the properties to the appellants/applicants, if it was found that they had already been dispossessed under statutory vesting. M.F.A.Nos.6 OF 2006 & 36 OF 2006 :: 2 :: 4. The respondents resisted the prayers in the applications and contended that the claim was totally misconceived and untenable. It was further contended that the petition scheduled properties form part of a large extent of Malavaram known as Kuthanur Vavulliapuram Malavaram and they lie contiguous to other large area of more than 100 acres. According to the respondents, the properties had vested with the Government with effect from May 10, 1971 on the promulgation of the Act. A notification in this regard was also issued in the year 1993. In short, the respondents contended that the appellants were not entitled to get any relief prayed for. 5. The contentions raised by the parties were considered by the Tribunal on the basis of the oral and documentary evidence available on record. In O.A.7/03, Smt.Eliyamma was examined as PW1 and the Advocate Commissioner who had filed Ext.A8 report and A9 plan in O.S.213/95 on the file of the Munsiff Court, Alathur was examined as PW2. The Forest Range Officer, Alathur was examined as RW1. 6. The Tribunal noticed that the report and plan of the Advocate Commissioner (Exts.A8 and A9) did not have any bearing on the issue involved in the case. Appellants did not adduce any other evidence in support of their contentions. Therefore, the Tribunal dismissed both the applications holding that the appellants had failed to establish their case satisfactorily, especially, since the entire burden was with them. We do not propose to deal with the documents that were pressed into service by the appellants at this stage. M.F.A.Nos.6 OF 2006 & 36 OF 2006 :: 3 :: 7. It is conceded by the learned counsel for the appellants that no satisfactory evidence could be adduced by the appellants before the Tribunal due to some unavoidable reasons. Learned counsel submits that the appellants, if given a chance, will be in a position to substantiate their contentions. 8. Per contra, it is contended by Sri.Prakash, learned Special Government Pleader (Forest) that the prayer for remand in order to enable the appellants to adduce further evidence in the case cannot be allowed as a matter of course. It is pointed out by the learned Government Pleader that appellants do not have a case that they were denied any opportunity to adduce evidence. There is some force in the above contention. 9. But still, having regard to the entire facts and circumstances of the case, we are of the view that one more opportunity can be given to the appellants to adduce further evidence; but of course, this concession can be only on terms. Therefore, the orders passed by the Tribunal in the two applications shall stand set aside and remanded to the Tribunal for fresh consideration on condition that the appellants do pay a sum of Rs.15,000/- each in the two appeals to be paid to the respondents. The appellants shall deposit the cost referred to above before the Tribunal within one month from today, failing which the two appeals shall stand dismissed. 10. If the cost as directed above is paid, the two original applications shall be taken up for further consideration and disposed of by the Tribunal in M.F.A.Nos.6 OF 2006 & 36 OF 2006 :: 4 :: accordance with law after affording sufficient opportunity to both sides to adduce further evidence, if they so choose. The Tribunal shall make an earnest endeavour to dispose of the two cases as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment. 11. Parties shall appear before the Tribunal on August 11, 2010 if the cost is paid. Appeals are disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes