HAMZA HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) Leave granted.

(2.) In the year 1968, the appellant herein claims to have purchased an extent of 22.25 hectares of land blocked in Survey No.2157 in Palakkayam Village, Mannarghat Taluk. The deed was accompanied by a sketch showing the property conveyed. It is seen that the appellant disposed of almost the entire property by way of assignments mostly in the years 1971 and 1972 and by way of a gift of 5 acres to his brother. Thus, he was left with no property allegedly acquired under the sale deed No. 2685 of 1968 of the Mannarghat Sub Registry.

(3.) On 10.5.1971, The Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short "the Act") came into force. In the year 1979, the appellant filed an application, O.A. No.247 of 1979, before the Forest Tribunal, Manjeri, under Section 8 of the Act seeking a declaration that the application scheduled property was not a private forest liable to be vested in the Government. He scheduled 8.10 hectares equivalent to 20 acres in Sy. No. 2157, Agali Village, Mannarghat Taluk in the application. He claimed exemption under Section 3(2) of the Act and in the alternative, claimed that even if the land was private forest, the same was held by him as owner under his personal cultivation and with intent to cultivate and that it is within the ceiling limit applicable to him under the Kerala Land Reforms Act and hence the same may be declared to be exempt from vesting under Section 3(3) of the Act. Through the forest authorities, the State of Kerala filed objections to the original application. It was contended that the land was private forest; that the Madras Preservation of Private Forests Act applied to the same; and it continued to be a forest under the Act and hence the prayer under Section 3(2) of the Act was unsustainable. The claim under Section 3(3) of the Act was also opposed on the plea that the appellant had no valid title to the land, that it was not cultivated and that the appellant had no intention to cultivate the same. By order dated 17.12.1980, the Forest Tribunal held that the land was forest to which the Madras Preservation of Private Forests Act applied immediately prior to 10.5.1971, the appointed day and it continued to be forest under the Act. The Tribunal accepted the evidence of the officer examined on behalf of the State to find that the area was full of forest tree growth. Thus, the claim of the appellant under Section 3(2) of the Act was negatived. The claim of the appellant was upheld by the Tribunal under Section 3(3) of the Act by rejecting the plea of absence of title in the appellant based on a pending litigation as set up by the State. It upheld the title and possession of the appellant as per the deed of purchase, Document No. 2685 of 1968 put forward by him. It held that the extent claimed did not exceed the extent of ceiling area applicable to the appellant under Section 82 of the Kerala Land Reforms Act. It, therefore, excluded the 20 acres scheduled to the application and declared it as not vested in view of Section 3(3) of the Act. The State filed an appeal, MFA No.328 of 1981, against the said decision in the High Court under Section 8A of the Act. The High Court, on 8.3.1983, dismissed the appeal at the stage of admission on the ground that a specific ground of challenge to the finding based on Section 3(3) of the Act had not been raised in the memorandum of appeal. The order of the Forest Tribunal in that sense became final.