IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 MFA.No. 7 of 2004(E) -------------------- OA.20/2000 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS/ RESPONDENTS: -------------------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY SPL.GOVERNMENT PLEADER, SRI.M.P.PRAKASH (FORESTS) RESPONDENT/ APPLICANT: ------------------------- VASU, S/O. VELAYUDHAN AGED 58 YEARS, KUTHANNUR AMSOM DESOM, MATHUR TALUK, PALAKKAD DISTRICT. ADV. SRI.P.R.VENKETESH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ---------------------------------------- M.F.A. No. 7 OF 2004 ---------------------------------------- Dated this the 3rd day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in O.A.No.20/2000 before the Forest Tribunal, Kozhikode, are the appellants. The respondent was the applicant. The dispute between the parties relates to 2.42 acres of land in Survey Nos.362/6 and 362/7 (new Survey No. is 279) in Block No.10, Kuttannoor Village, Alathur Taluk, Palakkad District. Initially the survey number of the property was shown as 362/1. Later, the same was amended and the aforementioned survey numbers were included in its place. The appellant claimed the right and possession of the property on the strength of Ext.A1 assignment deed. The assignor of the property got it along with his brother from his father. Their father got the property under Ext.A3, which is a registered document of lease of the year 1938. The petitioner submitted that he was cultivating Tapioca etc. in the property. While so, the forest officials started interfering with his possession. M.F.A.No.7/2004 2 Therefore, initially, after moving unsuccessfully before the civil court, he approached the Forest Tribunal for declaring that the disputed property is not private forest and is not vested in the Government. The respondents resisted the application by filing a counter affidavit stating that the property was surveyed, demarcated and notified in the gazette dated 25.1.1977. The disputed property forms part of the VFC Item Nos.169, 177 and 182. The respondents also produced the survey sketch of the property. It was also contended that the application was barred by limitation. 2. Before the Tribunal, the applicant was examined as PW1 and the vendor of the property under Ext.A1 to him was examined as PW2. The Forest Range Officer, concerned, was examined as RW1. From the side of the applicant, Exts. A1 to A3 and from the side of the respondents, B1 to B2 were marked. Exts.C1 to C4, Commissioner's reports and plans, were also marked. The Village Officer produced Ext.X1, which is the relevant extracts of the revenue records showing the details of the disputed property. After hearing both sides, the Tribunal M.F.A.No.7/2004 3 found that the application is not barred by limitation. It was also found that the property in question was part of private forest. But, it was held that the applicant is entitled to get the benefit of Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as 'the Act'). 3. Aggrieved by the above judgment of the Forest Tribunal, the State and its officers have come up in appeal. According to them, the disputed property has not been identified with reference to the title deeds. There is no material on record to show that the disputed property over which the applicant claims possession is covered by Ext.A3 and as a result it is also covered by Ext.A1. In the absence of evidence on this crucial point, the application was liable to be dismissed. Further, the applicant did not have a case that he is entitled to get the benefit of Sub-section (3) of Section 3 of the Act. There were no pleadings to make out the ingredients under the said sub- section. Therefore, the order of the Tribunal extending the protection of Section 3(3) to the applicant is plainly perverse and unsustainable, it is submitted. We heard the learned counsel M.F.A.No.7/2004 4 appearing for the respondent/applicant. He supported the order of the Tribunal. 4. If the disputed property was covered by Ext.A3 and as a consequence also covered by Ext.A1, it can be safely concluded that the said property was never part of a private forest. The description of the property in Ext.A3 would show that it was under cultivation as early as in 1938. Further, the age of the tree growth in the Commissioner's report would show that the trees started growing in the property as there was no proper cultivation long after 10.5.1971. So, if the property is properly identified as covered by Exts.A3 and A1 then the applicant is entitled to succeed. Otherwise, the Original Application is liable to be dismissed. In order to give a chance to the applicant to prove that the scheduled property, which is the disputed property, is covered by Exts.A3 and A1, we feel that the application should be remitted to the Forest Tribunal for fresh disposal, in accordance with law. M.F.A.No.7/2004 5 In the result, the judgment under appeal is set aside and the matter is remanded to the Tribunal for disposal of the Original Application in the light of the observations made herein above. The Tribunal shall endeavour to dispose of the matter, as expeditiously as possible, preferably, within one year from the date of receipt of a copy of this judgment. The parties may appear before the Tribunal on 31.3.2009. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps