IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 MFA.No. 84 of 2004() -------------------- OA.48/2001 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): APPLICANTS: ------------------------- MRS.THOTTUMKARA PUTHEN VEETTIL PUSHKALA, AGED 40 YEARS, D/O. THOTTUMKARA PUTHEN VEETTIL- KESHAVA PILLA, KAKKAYAM P.O., KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE SRI.K.M.FIROZ RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. SPL. GOVERNMENT PLEADER SRI.M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.F.A.No.84 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of October, 2010 JUDGMENT Basheer, J. Appellant is the applicant before the Forest Tribunal Kozhikode. She filed the above application before the Tribunal under Section 8 of the Kerala Private Forest (Vesting and Assignment ) Act 1971 (herein after referred to as the 'Act') contending that she had been in possession and enjoyment of a total extent of 1.37 ½ acres ever since she obtained it from her father. 2. According to the appellant/applicant, the Forest Officials came to her property and measured and demarcated 89.858 cents declaring that the said area is a private forest that had vested in the government. The applicant therefore prayed for a declaration that the disputed land having an extent of 89.858 cents was not a private forest. 3. The respondent resisted the claim made by the appellant contending inter alia that the appellant had no title and interest over the disputed property on or before May 10, 1971, the date on which the Act came into force. According to the respondents, the husband of the MFA.No.84/04 2 applicant had encroached into the land in dispute which is a vested forest included in VFC Item No. 52 Bit No. 21 and planted some Arecanut trees, coffee, rubber, pepper etc. It was further contended that the Forest Officials who noticed this encroachment and illegal plantation of trees did not destroy them. But on the contrary, they preserved and protected them. According to the respondents, the appellant had no need to construct a hut in the disputed land for her residence and family as she had already constructed a house in her private property situated on the southern side of the land in dispute. We will refer to the other contention raised by the respondents in the two counter affidavits filed by them before the Tribunal, a little later. 4. The husband of the appellant was examined as PW1 and Exts.A1 to A3 were marked on her side. On the side of the respondents, the Forest Range Officer of that area was examined as RW1 and Exts.B1 to B7 were marked. The report and plan prepared by the Advocate Commissioner were also marked as Exts.C1 and C2. 5. The Tribunal after considering the oral and documentary evidence adduced by the parties, held that the appellant had no title or MFA.No.84/04 3 ownership over the disputed property and therefore she was not entitled to get the declaration prayed for. The Tribunal further held that she was not entitled to get exemption under Section 3(2) of the Act. Accordingly, the application was dismissed. 6. While impugning the order passed by the Tribunal, it is contended by learned counsel for the appellant that the Tribunal has proceeded on a totally erroneous assumption and without considering the vital aspect of possession of the disputed property by the applicant as revealed from the report of the Advocate Commissioner. The case of the appellant is that she had obtained 1.37 ½ acres from her father Kesava Pilla, who infact had obtained the said property along with a larger extent from one Mannanil Kuriakose. 7. In this context, it may be noticed that the appellant is admittedly in possession and enjoyment of 33 ½ cents of land lying contiguous to the disputed property on its southern side, on the strength of Ext.B1 document. In fact, respondents had produced Exts.B1 to B4 documents to substantiate their contention that the entire extent of land that Kesava Pilla obtained from Kuriakose, had already been assigned MFA.No.84/04 4 by him to his four children including the appellant. The Tribunal while dealing with Exts.B1 to B4 held that appellant had obtained 33 ½ cents under Ext.B1 from Kesava Pilla. Similarly, another son of Kesava Pilla had obtained 66 ½ cents of land under Ext.B2 and Indira, one of the two daughters had obtained 33 ½ cents under Ext.B3 while the other daughter Prasanna Kumari had obtained 66 ½ cents under Ext.B4. Thus, the Tribunal found that the entire extent of 2 acres obtained by Kesava Pilla from Kuriakose had been assigned away by him to his four children under the above four documents. 8. But a perusal of Exts.B2 to B4 will show that the properties covered under those three documents were in fact stated to have been obtained by Kesava Pilla from Mallisseri Kizhakkedath Kovilakam and not from Kuriakose. It is true that the property having an extent of 33 ½ cents covered under Ext.B1 in favour of the appellant was stated to have been obtained by Kesava Pilla from Kuriakose as is revealed from the said document itself. We have referred to this aspect only to indicate that the Tribunal proceeded as though the entire extent of 2 acres obtained by Kesava Pilla from Kuriakose had already been MFA.No.84/04 5 assigned away by him in favour of his four children. 9. But the case of the appellant before the Tribunal was that her father Kesava Pilla had given her a total extent of 1.37 acres which he had obtained from Kuriakose. It is true that the appellant did not produce any document to show that the disputed land having an extent of 89.858 cents was covered under any document of title in her favour though under Ext.B1 Kesava Pilla had assigned only 33 ½ cents in her favour. But as has been noticed already, the Tribunal came to the conclusion that Kesava Pilla could not convey any property other than 33 ½ cents to the appellant since whatever he had obtained from Kuriakose had already been assigned away by him under the four documents referred to above. This conclusion is obviously erroneous for the reasons which we have already indicated above. 10. The short question that arises for consideration is whether there is any other material to substantiate the contention raised by the appellant that she had been in possession and enjoyment of the disputed property as on May 10, 1971. In this context Ext.C1 report of the Advocate Commissioner becomes relevant. The Advocate MFA.No.84/04 6 Commissioner had noticed that the disputed property was planted with rubber, Arecanut etc. apart from other trees like teak, mango, payyani, punna etc. The Commissioner further found that the age of trees like rubber, arecanut etc. found in the undisputed property in the possession of the appellant and those in the disputed property almost same. The relevant portion of the report of the Commissioner is extracted hereunder for easy reference : “ Rubber trees of the same age group are also seen in the property which is in the possession of the appellant situated on the souther side of the disputed property, it is in the extent of 33 ½ cents. The Rubber trees seen in the disputed property are not distinguishable from the Rubber trees seen in the property which is in the possession of the applicant and I specifically noted the fact the Rubber trees in the both disputed and undisputed land are not Bud Rubbers they are of the very old variety called “Conel”. 11. However, the Tribunal had not considered the above aspect at all. In our view, the Tribunal ought to have taken note of the above crucial aspect and entered a finding as to whether the appellant was in possession and enjoyment of the disputed property on or before the crucial date on which the Act came into force. MFA.No.84/04 7 12. There is yet another aspect of the matter. The Tribunal did not consider the question whether the private forest in question would fall within the ambit of Madras Preservation of Private Forest Act. It is pointed out by learned counsel for the appellant that in the additional counter affidavit, the respondent had admitted that the disputed property was part of a larger extent of private forest having a total extent of 25 hectares. In other words, the contention of the appellant is that the respondents did not have a case that the private forest in question did not have an extent of 100 Acres to fall within the ambit of Section 2 of MPPF Act. 13. Learned Special Government Pleader has pointed out that the 25 hectares referred to was only Beat No.1 of the total area of private forest. He submits that the documents in the department will show that the forest in question is having more than 100 acres. Any how, we do not deem it necessary to deal with that aspect any further in view of the order that we propose to pass. 14. Having carefully considered the entire materials available on record, we are of the view that the case has to be remanded to the MFA.No.84/04 8 Tribunal for a fresh consideration in accordance with law. We are persuaded to take the above view not only for the reason that the Tribunal had arrived at an erroneous conclusion about the extent of land actually available with Kesava Pilla, but also for the reason that the crucial question of alleged possession of the appellant on the date when the Act came into force was not properly considered in the light of the report of the Advocate Commissioner. 15. In that view of the matter, the order passed by the Tribunal is set aside. The case is remanded to the Tribunal which shall afford further opportunity to the parties to adduce additional evidence in the matter, if so advised. The Tribunal shall dispose of the matter as expeditiously as possible, at any rate within four months from the date of receipt of a copy of this judgment. 16. The parties shall appear before the Tribunal on December 15, 2010. The appeal is disposed of in the above terms. A.K.BASHEER, JUDGE sv P.Q.BARKATH ALI, JUDGE MFA.No.84/04 9 sv