STATE OF KERALA Vs. NANU

JUDGEMENT

(1.) The custodian of vested forests held that 4 acres of property in R.S.6/1 of Kavilampara village is vested forest. The Tribunal where the respondent herein filed an application under S.8 of the Private Forests (Vesting & Assignment) Act, 1971 (hereinafter referred to as 'the Act') found that the area in question is a private forest and that the applicant is not entitled to claim exemption under S.3(2) of the Act. The application filed by the respondents herein was dismissed. The respondents filed M.F.A. 261 of 1979 before this Court. This Court remanded the case for fresh consideration. When remanding the case this Court allowed the applicant to adduce evidence to establish that the area in question was/is under personal cultivation and that it is not liable to be vested under the Act. After the remand, the respondents herein adduced fresh evidence. The Tribunal after considering the evidence in the case found that the respondents are entitled to the benefits under S.3(2) of the Act, and thus allowed the application. The Government of Kerala and the Custodian of Vested Forests have filed this appeal.

(2.) From the narration of facts, it is clear that the only question that has to be considered in this case is as to whether the respondents are entitled to exemption under S.3(2) of the Act. The disputed land is only 4 acres in extent. The respondents got title to this land by virtue of Ext. P1. It is an assignment in favour of the respondent. It is dated 9-4-1974. The respondents have produced the earlier title deeds in respect of the property. Ext. P2 is the registration copy of a kuzhikanam deed in respect of the property in question. Ext. P2 is dated 8-7-1954. In this document it is clearly stated that the document is, executed for the purpose of cultivating the land. There is indication in the document that there was already cultivation in the land. Further the executant has given the land for cultivation for 12 years. The respondents examined P.W.2 who is a predecessor-in-interest of the disputed land. He deposed before the Tribunal that he kept possession of the property in the year 1963 and he made boundary kayyalas and cultivated the land with plantains and tapioca. P.W.3 is the 1st respondent He also stated that the land was cultivable land 10 to 20 years back, and that he had cultivated crops like tapioca, plantains and ginger. R. W.2 is the Range Officer. He deposed before the Tribunal that the property is bounded by kayyala and that there is indication of the cultivation of tapioca made prior to his visit. A definite question was asked as to whether he can deny the fact that the respondents were cultivating the land with tapioca or not. He was not able to give a negative answer. The Tribunal, after taking the evidence of PWs 2 and 3 and R.W.2 felt that it is necessary to make a personal inspection of the property. The law permits such a local inspection by the Tribunal. But the object of such personal inspection should not be for collecting evidence and it can be only for understanding the evidence already let in by the parties. This aspect of the matter was considered in State of Kerala v. Kunhiraman ( 1990 (1) KLT 382 ).

(3.) Government Pleader submitted that the Tribunal went wrong in relying on the notes of inspection and not on the evidence adduced in the case. We do not think that this submission is correct. S.12 of the Act gives power to Forest Tribunal to exercise all powers of the civil court while trying a suit under the Code of Civil Procedure in respect of the matters enumerated therein. Clause (e) is concerned with "inspecting any property or thing concerning which any decision has to be taken." The Civil Procedure Code contains a specific provision granting power to the court to inspect any property or thing concerning which any question may arise. This power can be exercised by the court at any stage of the suit. It is also provided that when the court makes such an inspection of any property or thing, it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form part of the record of the suit. The relevant provision is O.18, R.18 C.P.C. Of course, it is only stated in the rule that the memorandum of inspection notes prepared by the Presiding Officer of the Court shall form part of the record. In deciding the case, how the impressions gained and data collected by the court on personal inspection can be used, has not been made clear by any provisions in the C.P.C. There are several decisions on this point.