RADHAKRISHNA MENON K G Vs. STATE OF KERALA

JUDGEMENT

(1.) Dispute in O.A. No. 14 of 2007 of the Forest Tribunal, Kozhikode (for short, the Tribunal ) concerns ownership and possession of two plots of land, measuring 35 acres and 8.69 acres in survey 1960 of Agali Village. According to the Petitioners the jenm of the said properties belonged to the Sthanam of Kozhikode Elayaraja wherefrom the said properties were taken on lease by Muhammed and Moidutty as per registered document No. 2170 of 1958. There was subsequent assignments of the lease hold right and ultimately when one Lizamma Thomas and Ors. were holding the property they purchased the jenmi's right in the property and later Petitioners claim to have acquired the said property as per document Nos. 46, 47 and 48 of 1997. It is said that there are about 6000 rubber trees aged about 6 years planted in the said property. It is while so, that there was a publication under the Kerala Private Forest (Vesting and Assignment) Act as per which the said property was declared as private forest vested in the Government. Petitioners filed O.A. No. 14 of 2007 for declaration of their title and possession of the property. In the said original application Petitioners filed I.A. Nos. 311 and 395 of 2010 one, for permission to nurse the rubber trees and the other, to tap the same and collect latex. Those applications and original application were resisted by the Respondents contending that properties referred to in the original applications are part of Mezhumpara and Anamooly Malavaram comprised in survey 1960 of Agaly Village which is notified as vested forest, the said properties are in the possession of Respondents and that Petitioners have No. right or possession over it. In answer to I.A. Nos. 311 and 395 of 2010 Respondents contended that there are No. rubber trees in the disputed property. Learned Tribunal dismissed the applications vide Ext.P9, common order observing mainly that there is nothing on record to show that there are rubber trees in the disputed property. The said orders are under challenge in this original petition. Learned Counsel for Petitioners contended that an Advocate Commissioner was appointed by the Tribunal but, he could not visit the property on account of rainy season. The second Respondent has filed counter wherein it is contended that there are No. rubber trees in the disputed property. The property covered by the documents are not the property referred in the O.A. It is submitted by learned Special Government Pleader that trees or take yield since property is a vested forest which is in the possession of Respondents. Alternatively, it is contended that if at all there are rubber trees the department is prepared to take yield therefrom.

(2.) As observed earlier the main ground on which the applications were dismissed is that there is No. material to show the existence of rubber plants in the disputed property. As I am told, an Advocate Commissioner has already been appointed to inspect the property but, No. report has so far been filed. The first thing that the Tribunal had to ascertain was whether there are rubber trees in the disputed property. Then, the Tribunal has to decide as to who among the contesting parties should be permitted to take the yield. Since No. finding could be arrived either in the Tribunal or in this proceeding for lack of materials as to whether rubber trees are in existence in the disputed property, the alternative is to send the applications back to the Tribunal for fresh decision after obtaining report of the Advocate Commissioner whether the properties are planted with rubber trees or not. Thereafter the Tribunal has to take a decision in the applications having regard to the contentions raised by the parties. If the Respondents have a contention that the documents relied on by Petitioners do not relate to the disputed property, considering the applications.

(3.) Resultantly this original petition is allowed by way of remand. The impugned common order dated April 16, 2011 on I.A. Nos. 311 and 395 of 2010 are set aside and those applications are remitted to the Tribunal for fresh decision in the light of the observations made above.