IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 MFA.No. 173 of 2005() --------------------- OA.31/2000 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S)/RESPONDENTS 1 AND 2: -------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER RESPONDENT(SAPPLICANTS AND RESPONDENTS 3 TO 5: --------------- 1. INDIRA KAVAMMA, D/O.PARUKUTTY KAVAMMA, CHANDRA BHAVAN, THIRUVILLAMALA P.O., THALAPPILLY TALUK, THRISSUR DISTRICT. 2. SUNITHA, D/O.INDIRA KAVAMMA, DO. DO. 3. MALATHI UNNI, W/O.LATE BHASKARANUNNI, KELOTH HOUSE, KUTTIYATOOR P.O., MAYYIL (VIA) KANNUR. 4. K.K.KRISHNAKUMAR, S/O.LATE BHASKARANUNNI, DO. DO. 5. K.K.DEEPIKA, D/O.LATE BHASKARANUNNI, DO. ADV. SRI.ESM.KABEER THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.F.A. (FOREST) NO. 173 OF 2005 --------------------------------------------------------- Dated this the 19th day of March, 2009 JUDGMENT Basant, J. This appeal is by the State and the Custodian of Vested Forests. They were respondents 1 and 2 before the Forest Tribunal, Kozhikode in an application filed by respondents 1 and 2 herein. Respondents 1 and 2 herein (refereed to as “the applicants” hereafter) had filed an application under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as “the Act”) claiming that three items of properties scheduled to the petition are exempted from vesting in view of Section 3(3) of the Act. They contended that the thavazhy consisting of four persons, i.e. the applicants and two others were holding the property under a valid registered document of title prior to 10.5.1971. According to them, they were holding the property with the requisite intention to cultivate the said property and the said items along with other items held by them falls within the ceiling limit under the Kerala Land Reforms Act. M..F.A.(Forest)No.173/2005 2 2. Under Ext.A1 partition deed, the property is allotted to the thavazhy consisting of four persons i.e., the applicants and the mother and brother of applicant No.1. Respondents 3 to 5 before the Tribunal and before us are the legal heirs of the said brother Bhaskaranunni. The mother of the first applicant died and applicant No.1 and respondents 3 to 5 are the only legal heirs of the deceased mother of the first applicant. 3. The claim was opposed. It was vaguely and generally contended that the applicants have no right over the petition schedule property; that they were not holding that property under any valid registered document of title; that they had no intention to cultivate the property and that, at any rate, they are in possession of properties in excess of the ceiling limit. 4. The parties went to trial on these contentions. Both the applicants examined themselves as PWs.1 and 2 and the Forest Range Officer, Vadakkanchery was examined by the appellants as RW.1. Exts.A1 to A9, B1 to B3 and C1 to C2(c) were marked. 5. The Forest Tribunal came to the conclusion that under Ext.A1, which is a partition deed and in which title over the petition schedule property is claimed under Exts.A6 and A5, the applicants have title over M..F.A.(Forest)No.173/2005 3 the properties in Survey Nos. 419, 444 and 445/2. Thus, the first ingredient was held to be satisfied. 6. The assertions of PWs.1 and 2 were accepted to come to the conclusion that they had the requisite intention to cultivate the property. Accordingly, the second ingredient was also held to be satisfied. 7. The oral evidence of PWs.1 and 2 show that the thavazhi consisting of four members had no properties other than that covered under Ext.A1. That would show that each of the member of the thavazhy did not have land in excess of the ceiling limit. It was in these circumstances that the Tribunal came to the conclusion that the applicants did not have property in excess of the ceiling limit under the Kerala Land Reforms Act. The Forest Tribunal thus proceeded to pass the impugned order in favour of the applicants/respondents 1 and 2 herein. 8. The learned Government Pleader, on behalf of the appellants, first of all contends that though Ext.A1 referes to Ext.A6 assignment deed and Ext.A5 settlement deed and it can be contended that the applicants have title over the properties allotted to them as B schedule items 9, 10 and 11 in Ext.A1, there is no satisfactory materials to show that the disputed M..F.A.(Forest)No.173/2005 4 property identified by the Commissioner in Exts.C1 report and C2 series plans are properties which are covered by items 9, 10 and 11 of B schedule. The learned Government Pleader points out that objections had been raised against the report of the Commissioner and though the Commissioner has not been called to the witness stand, the available indications must clearly suggest that the properties identified by the Commissioner are not the properties covered by items 9, 10 and 11 of B schedule of Ext.A1 read along with Exts.A5 and A6. 9. Learned counsel for the applicants contends that the Commissioner had identified the property in Ext.C1 report and Ext.C2 series plans and the appellants herein had not thought it necessary to call the Commissioner to the witness stand to dispute the findings of the Commissioner in Exts.C1 and C2 series. The learned Government Pleader, on the contrary, contends that notwithstanding the fact that the Commissioner had not been called to the witness stand, available indications are sufficient to instill satisfaction in the mind of the court that title under Exts.A1, A5 and A6 cannot be claimed in respect of the petition schedule property, i.e., the property identified in Exts.C1, C2(a), C2(b) and C2(c). M..F.A.(Forest)No.173/2005 5 10. We have looked into the question. We are satisfied that the said question cannot be decided without adequate evidence. We have taken note of the descriptions of the schedule properties in Exts.A1, A5 and A6. We have looked into the counter statement filed by the respondents as also the objection filed to the Commissioner's report. Though the Commissioner had not been called to the witness box, we are satisfied that it is an eminently fit case where the matter must be sent back to the Forest Tribunal with a direction to consider the question as to whether the applicants have valid title over the properties specifically identified in Exts.C2(a), C2(b) and C2(c) on the strength of Ext.A1 read along with Exts.A6 and A5. The appellants shall be given an opportunity to call the Commissioner as a witness and cross-examine him on this aspect. The challenge on the first ground must, in these circumstances, succeed partly. 11. The learned Government Pleader secondly contends that there is no satisfactory indication to prove the alleged intention of the applicants to cultivate the petition schedule property. Learned counsel for the applicants, in turn, contends that the oral assertions of PW.1 and PW.2 are there. In addition, the prior history of litigation in this case also clearly suggests that the applicants had the requisite intention to cultivate the M..F.A.(Forest)No.173/2005 6 property. The Act came into force on 10.5.1971 and the allotment under Ext.A1 document was effected only on 30.3.1970. The mere fact that the intention to cultivate was not manifested prior to 10.5.1971 is no reason to conclude that there was no intention to cultivate, contends counsel. 12. Learned Government Pleader thirdly contends that even admittedly, the applicants have other items of properties in addition to the three items scheduled to the petition. Learned Government Pleader relies on the recitals in Ext.A1 to show that the members of the thavazhi had title over an item in A schedule measuring 3.83 acres. He points out that even going by the admitted versions of the applicants, they had other properties obtained through their father on his demise. No details are made available except the assertions on oath by the applicants as PWs.1 and 2. The burden is definitely on the applicants to make such documents available to satisfy the court that along with other items, the property shown in the schedule will not exceed the ceiling limit. 13. In any view of the matter, on the first ground raised we are sending the matter back to the Forest Tribunal. We are satisfied, in these circumstances, that it is not necessary to express any further opinion on merits on the second and third contentions. We need only observe that M..F.A.(Forest)No.173/2005 7 opportunity should be granted to the applicants also to adduce further evidence, if any, on all aspects. 14. In the result: a) This appeal is allowed. b) The impugned order is set aside. c) The Tribunal is directed to dispose of the matter afresh after granting the parties an opportunity to adduce all further evidence, if any. Parties shall be at liberty to raise all contentions. d) The Tribunal shall dispose of the matter as expeditiously as possible, at any rate within a period of four months from 21.5.2009. 15. The Registry shall forthwith sent back the records to the Forest Tribunal, Kozhikode. The parties shall appear before the Forest Tribunal on 21.5.2009 to continue the proceedings without any further notice. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M..F.A.(Forest)No.173/2005 8 R. BASANT & C.T. RAVIKUMAR, JJ. M.F.A.(FOREST)NO. 173/2005 JUDGMENT 19th March, 2009 M..F.A.(Forest)No.173/2005 9