IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 MFA.No. 124 of 2004 ----------------------------------- OA.7/2001 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): RESPONDENTS: -------------------------------------------------- 1. THE STATE OF KERALA, REP. BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY SPECIAL GOVERNMENT PLEADERSRI.M.P.PRAKASH RESPONDENT(S): APPLICANT: ----------------------------------------------- PUTHIYA VEETTIL NARAYANAYAN, S/O.APPA, ULIKKAL, POST MAMPARA, TACHIAD VILLAGE, THALIPARAMBA TALUK, KANNUR DISTRICT. ADV. SRI.V.JAYAKUMAR THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No.124 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May 2010 JUDGMENT Basheer, J. State of Kerala represented by its Chief Secretary and Custodian of Vested Forests, Olavakkode in Palakkad district have filed this appeal under Section 8-A of the Kerala Private Forests (Vesting & Assignment) Act 1971 impugning the order passed by a Forest Tribunal, Kozhikode in an original application filed by the respondent herein. 2. The prayer in the application filed under Section 8-A of the Act was for a declaration that the petition scheduled property having an extent of 7.49 acres is not private forest and that it had not vested in the Government on the promulgation of Act 26 of 1970. By the impugned order, the Tribunal allowed the application as prayed for. Hence this appeal. 3. The case of respondent No.1/applicant before the Tribunal was that he had been in possession and enjoyment of the petition scheduled property ever since 1963 on the strength of an oral lease obtained by him from its landlord Sri.Unnaman Nayanar. He contended that he had cultivated the property with cashew plants. However, most of the cultivation was destroyed in fire and there remained only 75 to 80 cashew trees, aged about 22 years, in the property. Apart from the cashew cultivation, he also used to cultivate Ginger, Tapioca, Turmeric, etc. in the property. The Land Tribunal, Irikkur, had issued purchase certificate in his favour in respect of the said property in its proceedings in M.F.A.No.124 OF 2004 :: 2 :: O.A.607/76. However, on May 4, 1987 the forest officials tried to interfere with his possession and enjoyment of the property alleging that the property had already vested in the Government under Act 26 of 1970. It was in the above circumstances that respondent had filed the application before the Tribunal at Kozhikode in O.A.14/1987 which was later transferred to the Tribunal at Palakkad and renumbered as O.A.108/90. The said application happened to be dismissed by the Tribunal holding that it was barred by limitation. However, on a direction issued by this court the case was restored to file. The Tribunal by its order dated February 26, 1992 dismissed the application. The said order was challenged by the respondent before this court in MFA 504/93. A Division Bench of this court remanded the matter to the Tribunal with a direction to decide the question whether or not the petition scheduled property was a private forest. It was further directed that if in fact it was found to be part of the private forest, the claim of the petitioner under Section 3(2) of the Act shall also be considered on its merit. 4. The Tribunal passed the impugned order after affording further opportunity to the respondent and the appellants. As mentioned earlier, the Tribunal held that the respondent is entitled to the relief sought for and accordingly allowed the application. 5. Since the contention raised by the appellant that the application was barred by limitation had already been decided by this court in the earlier rounds of litigation, the said question was not considered by the Tribunal. As regards M.F.A.No.124 OF 2004 :: 3 :: the question relating to the identity of the petition scheduled property, the Tribunal noticed that the Advocate Commissioner had got the property identified in the presence of the Taluk Surveyor, Thaliparamba and the officials of the Forest Deparment. In Ext.C1 report, the Advocate Commissioner stated that a small portion on the south-east of the property was found to have been cultivated. Similarly, the plot B marked in Ext.C2 plan was also found to be cultivated with cashew plants. 6. It may at once be noticed that plot B is admittedly in the possession of respondent/applicant. This plot has an extent of 1.75 acres. Therefore, the dispute centered around the remaining extent of about 6 acres which was marked in Ext.C2 plan as plot A. As has been mentioned already, the Advocate Commissioner found that a small portion on the south-east corner of this plot was also found to have been cultivated. The Commissioner found a road running around the western boundary of the petition scheduled property, which is clearly marked in Ext.C2 plan as well. Though the respondent had mentioned the name of the holder of the property on the northern side as one Joseph, the Commissioner found that the said property was now in the possession of one Rassak. Yet another error noticed by the Advocate Commissioner as regards the description of the boundary was in respect of the eastern boundary. In the schedule attached to the application, the respondent had mentioned that the eastern boundary was a hospital. But the Advocate Commissioner did not find any hospital on the eastern side. The explanation offered by the applicant M.F.A.No.124 OF 2004 :: 4 :: appeared to be that he had carried forward the description of the boundary as was available in Ext.A2 purchase certificate. The Commissioner did not find any other significant variation in the description of the boundaries as far as the petition scheduled property was concerned. It is true that the respondent had claimed benefit of the Act in respect of 6 acres only. But pursuant to the report submitted by the Advocate Commissioner, the respondent had got his application amended incorporating the exact extent of the petition scheduled property as found by the Advocate Commissioner. 7. It is contended by Sri.Prakash, learned Special Government Pleader (Forest) that the discrepancies in the boundaries and extent of the land will clearly show that the application submitted by the respondent was only experimental in nature. If in fact the applicant had been in possession of the property as claimed by him, he would not have committed such mistakes not only in respect of the boundaries but as regards the extent as well. We are not impressed with the above contention. 8. It may at once be noticed that the appellants admitted possession of the property in respect of 1.75 acres which is the western segment of the petition scheduled property. In other words, the claim of the respondent related to the eastern segment of the whole property. Admittedly, there is no demarcation between the two plots, even though the Commissioner had marked the two plots separately, on the basis of the admission made by the appellants that the respondent was in possession of only B plot having an extent of 1.75 M.F.A.No.124 OF 2004 :: 5 :: acres. Otherwise there was no demarcation between the two plots. As regards the improvements in the property also, the Commissioner found that the eastern segment of the property, namely A plot, was partially cultivated. In short, the court below found that the report and plan of the Commissioner would indicate that the property was being cultivated by the respondent/claimant as contended by him. In this context, the Tribunal also placed reliance on Ext.A2, purchase certificate issued by the competent Land Tribunal in favour of the respondent. 9. There is yet another aspect of the matter. The respondent had been throughout contending that he was in actual possession and enjoyment of the property and that the forest officials prevented him from entering the property for the first time in the year 1987. It is contended by the learned Special Government Pleader that the department had taken over possession immediately after promulgation of the Act. It is also contended that Accacia trees in the property had been cut by the Department and supplied to M/S Grassim Industries Limited. Though the Department placed reliance on Exts.B4 to B6 in this connection, there is no material to show that the Forest Department had been in actual possession of the property. We are persuaded to observe so, since during the pendency of this appeal the respondent had filed an application seeking to restrain the appellants from interfering with their possession and enjoyment of the property and also to restrain them from cutting down any trees therefrom. The said Interlocutory Application (I.A.2130/06) was allowed by this court on November 9, 2006. Earlier to this, the petition filed by the appellant on M.F.A.No.124 OF 2004 :: 6 :: December 3, 2005 seeking stay of operation of the order passed by the Tribunal was dismissed by this court. 10. We have referred to the above aspects only to indicate that the appellants had not been able to substantiate their contention that they had been in actual possession and enjoyment of the property throughout. The Tribunal found that from the report submitted by the Commissioner and also from the evidence adduced by the respondent, who was examined as PW1, it was reasonable to hold that the respondent had been keeping possession of the property and cultivating the same. It was in the above circumstances that the Tribunal allowed the application for injunction filed by the respondent. 11. Having carefully perused the entire materials available on record, we do not find any reason to take a different view. 12. Learned Special Government Pleader (Forest) has invited our attention to a few decisions in support of his contention that the burden was heavily on the claimant to substantiate that the petition scheduled property was not part of the private forest or that it had not vested in the Government after the advent of Act 26 of 1970. State of Kerala V. Chandralekha [1995 (2) KLT 152 F.B.] and State of Kerala and Another V. Popular Estates and Another [2004 (12) SCC 434]. 13. It is pointed by the learned Government Pleader that in Popular Estates the apex court laid down that the order of the Taluk Land Board, though a statutory authority, may not have any bearing while deciding the question M.F.A.No.124 OF 2004 :: 7 :: whether the property in respect of which benefit under Section 8 of the Act is sought, is a private forest area. The above contention is raised by the learned Special Government Pleader with particular reference to Ext.A2 Purchase Certificate issued in favour of the respondent/applicant under the Kerala Land Reforms Act. Learned Government Pleader contends that the mere fact that the respondent had obtained Purchase certificate may not be a conclusive proof of his actual ownership, possession and enjoyment of the property. We are afraid the above contention is without any merit. As has been noticed by the court below, the Advocate Commissioner had found that part of the property had been cultivated. More importantly the Forest Department admitted that the petitioner was in actual possession and enjoyment of 1.75 acres which admittedly formed part of the petition scheduled property. The dispute related to only the remaining portion. It was in the above circumstances that the court below, not only relying on Ext.A2 purchase certificate but also on the basis of the materials gathered by the Advocate Commissioner at the time of the local inspection, came to the conclusion that the claim made by the respondent was sustainable. 14. Having carefully perused the two judgments referred to above, we are of the view that the dictum laid down in those judgments may not have any application on the facts and circumstances of this case. In State of Kerala V. C.J. Alexander [1993(1) ILR Kerala] it was held by a Division Bench of this court that the certificate of purchase issued under the Kerala Land Reforms Act M.F.A.No.124 OF 2004 :: 8 :: without issuing individual notice to the persons concerned cannot be said to be conclusive. Yet again the said decision may not have any bearing on the factual position available in this case. Having carefully perused the entire materials available on record, we do not find any reason to interfere with the order passed by the Forest Tribunal. There is no merit in any of the contentions raised by the appellant. The appeal fails and it is accordingly dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes