IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 MFA.No. 252 of 2001(B) ---------------------- APPELLANTS: -------------- 1. DEVAYANI AMMA ALIAS DEVAJANAKI AMMA, D/o. NARAYANAN NAIR, THEKKEMUTTI HOUSE, POODANUR, PALAKKAD TALUK, PALAKKAD DISTRICT. 2. PRABHAKARAN NAIR, S/o. NARAYANAN NAIR IN DO. 3. BALAMANI AMMA, D/o. NARAYANAN NAIR IN DO. DO. 4. SARALA, D/o. KAMALAKSHI AMMA IN DO. DO. 5. SHYAMALA, D/o. KAMALAKSHI AMMA IN DO. DO. 6. JAYAPRAKASH, S/o. DO. IN DO. DO. 7. KOCHUKUTTY AMMA, D/o. SANKUNNI NAIR IN DO. DO. ( APPELLANTS REPRESENTED BY THEIR POWER-OF ATTORNERY HOLDER, MADHAVAN, S/o. CHAMU, 'KRIPA NIVAS', PATTANCHERY VILLAGE,VANDITHAVALAM.) BY ADV. SRI.S.V.BALAKRISHNA IYER SRI. P.B. KRISHNAN RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. 3. SARADA AMMA, D/o. PARUKUTTY AMMA, KUNNAKKATTU HOUSE, POOTHANUR AMSOM PALAKKAD TALUK. M.F.A.No.252/2001 2 4. GOPALAKRISHNAN, S/o. SARADA AMMA, IN DO. DO. 5. GIRIJA DEVI, D/o. DO. IN DO. DO. 6. MURALIDHARAN, S/o. DO. IN DO. DO. 7. SREEDEVI AMMA, D/o. PARUKUTTY AMMA IN DO. R1 & R2 BY SPL.GOVT.PLEADER SRI. M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.252 OF 2001 (B) ----------------------------------- Dated this the 5th day of February, 2008 J U D G M E N T KOSHY,J. Appellants seven in number approached the Forest Tribunal for a declaration that 15.92 acres of land in Palakkad District mentioned in the schedule is not private forest vested under the Kerala Private Forest (Vesting & Assignment) Act, 1971. Tribunal found that 14.30 acres of land are not private forest and those lands are restored as per the earlier order and therefore dispute is regarding 1.62 acres of land. A Commissioner was appointed. The dispute is with regard to one acre of land in R.S.102/2 and 62 cents in R.S.102/3 in Mundoor Village. The Commissioner found that actually land in R.S.102/2 is not 62 cents but only 45 cents. According to the tribunal, it was not coming under the Madras Preservation of Private Forest Act. There was no evidence to show that it was not a forest which is not owned by the Government and M.P.P.F. Act is not applicable. The Commissioner expressed the MFA.252/2001 2 opinion that even though some forest trees were there, according to him, it is only planted trees. On going through the Commission report, we are not satisfied with the report. There is no specific description of trees situated in the disputed property to find out whether it was a forest or not on the appointed day. Age and number of forest trees in the disputed property are not clearly mentioned. Considering the facts of this case, we are of the view that only if it is a forest as mentioned under Section 2 f (1) (ii) of the Act, it will vest in the State and further evidence is necessary regarding that aspect. The Commissioner should again be deputed at the expenses of the appellant for finding out the nature of 1.45 acres of land on the appointed day. Both sides are free to adduce evidence. Parties may appear before the tribunal on 7.4.2008. Appeal is allowed by way of remand. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.252 OF 2001 (B) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 5th February, 2008