IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 MFA.No. 637 of 2003(E) ---------------------- OA.40/2000 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): APPLICANT ----------------------- SETHUMADHAVAN S/O. KALYANI AMMA, NARAYANA VAIDYAR OF PUTHEN VEEDU, AYAKKAD AMSOM (ERSTWHILE PALAKKAD TALUK) NOW ALATHUR TALUK. (DIED) ADDL.APPELLANTS: 2. CHINNAMMU, W/O. LAGTE SETHUMADHAVAN, PUTHEN VEEDU, AYAKKAD AMOM, MUDIKKODE, (ERSTWHILE PALAKKAD TALUK) NOW ALATHUR TALUK. 3. GIRISHKUMAR, S/O. LATE SETHUMADHAVAN AND 1ST PETITIONER, -DO -DO- 4. SHERINA, D/O. S/O. LATE SETHUMADHAVAN AND 1ST PETITIONER, -DO -DO- (ADDITIONAL APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT AS PER ORDER DATED 11.10.2004 ON I.A. NO. 3087/2004. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT. OF KERALA, THIRUVANANTHAPURAM 2. CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE. GOVERNMENT PLEADER SRI. S.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON 11/12/2008 DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.F.A. NO. 637 OF 2003 --------------------------------------------------------- Dated this the 11th day of December, 2008 JUDGMENT Harun-Ul-Rashid, J. O.A. No.40 of 2000 filed by the applicant who is the appellant herein was dismissed by the Forest Tribunal, Kozhikode finding that the applicant failed to prove that the property claimed by him is not a private forest and hence his claim under Section 3(2) or 3(3) of the Private Forests (Vesting & Assignment) Act, 1971(hereinafter referred to as "the Act") cannot be allowed. 2. The applicant claims 4.71 acres of land in Survey No.195A of Kuthanoor-II Village, Alathur Taluk. It is his case that the property originally belonged to his mother, Kalyani Amma and on her death the property devolved on him as her legal heir. The applicant's further case is that he effected regular cultivation upto 10.5.1971 and also afterwards. The applicant further contended that if the Tribunal found that the land M.F.A. NO. 637/2003 2 was private forest, he would be entitled to the benefits under Section 3(2) and 3(3) of the Act as the total extent of land in his possession is within the ceiling limit. 3. Learned Special Government Pleader contended that the property in question is part of a large extent of Paruvaikunnu Malavaram having more than 100 acres which comes within the purview of the Madras Preservation of Private Forests Act, 1949 and vested with the Government under Section 3(1) of Act 26 of 1971. 4. The Tribunal appointed a Commissioner for site inspection who inspected the property and prepared Ext.C1 report and Exts.C2 and C3 plans. The Commissioner reported that acquasia were planted on the major portion of the property besides which there were cashew, neem and kumble and that the trees were 1 to 2 years old. A palmyrah tree aged 10 was also seen in the property. The Commissioner also noted the boundaries of the property and reported that the property is surrounded by vested forest area on all sides. 5. The applicant failed to prove that the property in question was under his cultivation on 10.5.1971 and afterwards. The burden rests on M.F.A. NO. 637/2003 3 the applicant to prove that the land in question is not a private forest vested with the Government. It is apparent from Act 26 of 1971 that the person who prefers the claim before the Tribunal that the property is not private forest has the burden to establish his case. The Tribunal rightly held that there was no evidence to substantiate the claim of the applicant. We find no merit in the appeal and it is accordingly dismissed. There will be no order as to costs. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.F.A. NO. 637/2003 4 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.F.A. NO. 637/2003 JUDGMENT 11th December, 2008 M.F.A. NO. 637/2003 5