IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 MFA.No. 72 of 2004() -------------------- OA.61/2001 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): -------------- P.J.THOMAS S/O. JOSEPH, PUTHUPPALLI KUNNEL, ELAMBALERI, MEPPADI P.O., WYNAD DISTRICT. BY ADV. SRI.V.V.SURENDRAN SMT.SANIKA.V.S. RESPONDENT(S): --------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD. SPL.GOVERNMENT PLEADER (FORESTS) MR.M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.1596/2004 IN M.F.A.NO.72/2004 DISMISSED. 18.3.2009 SD/- K.BALAKRISHNAN NAIR, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE /TRUE COPY/ P.A. TO JUDGE K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------------------------- M.F.A.NO.72 OF 2004 (E) ----------------------------------------------------------------- Dated this the 18th day of March, 2009 J U D G M E N T Balakrishnan Nair, J. The applicant in O.A.No.61/2001 before the Forest Tribunal, Kozhikode is the appellant herein and respondents in that O.A. are the respondents herein. The applicant claimed that he has got 9.75 acres of property under Ext.A1 assignment deed dated 23.11.1978 executed by Smt.Kamala Bhai, who was a tenant under a trust. Though the extent of land covered by Ext.A1 was only 5 acres, the actual extent of the property he got under Ext.A1, was 9.75 acres. On the strength of Ext.A1, he got Ext.A2 patta also. As per the patta, the extent of land assigned is only 5 acres. But the actual property covered within the boundaries will come to 9.75 acres, it is submitted. When the respondents tried to interfere with his possession over the said property in the year 2001, he was constrained to file the original application. As per Exts.A1 and A2, the property held by him was in Survey No.250/1A, and according to him, after resurvey, the property fell under two survey numbers. They are MFA.72/2004 2 R.S.No.215 and R.S.No.214/2. Regarding the property held by him under Resurvey No.215, which will come to 5.90 acres, there is no dispute. The Forest officials raised disputes regarding 3.85 acres of land in R.S.No.214/2. The appellant also claimed that on the strength of Exts.A1 and A2, he has already paid land tax as is evident from Exts.A3 and A4 receipts. On the above pleadings, the O.A. was filed seeking appropriate reliefs. 2. The respondents resisted the application contending inter alia that the disputed property in Resurvey No.214/2 is covered by VFC item No.72, in the notification issued on 4.5.2001. The entire area was covered by Madras Preservation of Private Forest Act, and therefore, vested in the State from 10.5.1971 by operation of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The respondents also submitted that the land obtained by Smt.Kamala Bhai as per document No.122/1958 is 20 acres which falls in R.S.No.214 in block No.27 of Kottappadi Village. The land is not declared as a vested forest. They also pointed out that there is discrepancy in the extent of land covered by Exts.A1 and A2 and the property actually claimed to be in the possession of the applicant. So the MFA.72/2004 3 respondents prayed for dismissal of the O.A. 3. The applicant was examined as PW1 and the Forest Range Officer, Meppadi was examined as RW1. Exts.A1 to A6 and B1 to B3 were marked apart from Ext.C1 Commissioner's report and Ext.C2 plan prepared by the Commissioner. The Tribunal found that the applicant has got 5.90 acres of land in R.S.No.215 of Meppady village. The disputed property was in Resurvey No.214/2. The Tribunal also noted that there is a survey boundary separating Resurvey Nos.215 and 214. Since the applicant has got 5.90 acres of land in R.S.No.215, Tribunal held that his claim for further extent of land under R.S.No.214/2 cannot be accepted. 4. The assignor of the applicant, Smt.Kamala Bhai got the property on the strength of assignment deed dated 23.11.1978 executed by the trust. The copy of the assignment deed in favour of Smt.Kamala Bhai has not been produced before the Tribunal, and therefore, it is not possible to find out whether the property she got was only under R.S.No.216 or the same extended to R.S.Nos.215 and 214/2. But, going by Exts.A1 and MFA.72/2004 4 A2, the extent of land assigned to the applicant by Smt.Kamala Bhai will come to about 5 acres. In R.S.No.215, he was already holding 5.90 acres. So, his further claim for 3.85 acres more on the strength of the afore mentioned deed is not sustainable. On the strength of Exts.A1 and A2, the applicant has practically claimed approximately double the extent of land assigned to him. So the view taken by the Tribunal that applicant did not get any property in S.R.No.214/2 appears to us be a reasonable view on the facts. No material is available before the Court to dispel the said finding of the Tribunal. We find it difficult to believe that the applicant got double the extent of land assigned to him on the strength of Exts.A1 and A2. Therefore, we find no reason to interfere with the finding of the Tribunal. Accordingly this M.F.A. is dismissed. No costs. K.BALAKRISHNAN NAIR JUDGE M.L.JOSEPH FRANCIS JUDGE prp