STATE OF KERALA Vs. M D JOSEPH

JUDGEMENT

(1.) This appeal was preferred by the State of Kerala and custodian of Vested Forests, Kozhikode against the order dated 28.3.1990 in O.A. No. 3 of 1990 of the Forest Tribunal, Palakkad (O.A. NO. 141 OF 1977 of the forest Tribunal, Kozhikode) by which application preferred by the respondent herein for declaration that the properties shown in column No. 6 therein had not vested in the Government as private forest under Sec. 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 was allowed.

(2.) The respondent had filed the application under Sec. 3(3) of the Act for assignment of 25 acres of land in survey number 73,5/5A 2 of Kavilumpara village of Badagara taluk, which according to the State formed part of thick a forest lying contentions raised on either side it is necessary to examine the facts at some length.

(3.) The respondent-applicant had filed O.A. No. 141 of 1977 before the Forest Tribunal, Kozhikode claiming exemption of the aforementioned land under Sec. 3(3) of Act 26 of 1971. Petitioner along with others had claimed title over the properties in question vide Ext. P1 registered document of 4/4/1955. Ext. P1 was an assignment deed executed by one Harihara Iyer and others in favour of one Thomas and others in respect of two items of properties, the first measuring 589.10 acres in R.S. No. 5/5A2 of Kavilumpara village and the second item having an extent of 554.95 acres in the same survey number. Applicant was stated to be assignee No. 5 in Ext. P1. Complaining that various officials had tried to interfere with the rights of the applicant, he filed application under Sec. 8 of the Act claiming exemption under Sec. 3 (3) of the Vesting Act. Respondent-state objected to the claim stating that the applicant did not hold valid title or possession of the properties and that he had not satisfied the requisite conditions for claiming exemption and that claim was barred by limitation. State also disputed the claim of the applicant that he got only 4 acres of rubber plantation apart from the property covered by the application. Further it was stated that the aoplicant had no intention to cultivate the area on the appointed date and that the area involved was a thick forest of natural original lying contiguous to other vested forest forming a large block and that the property has no boundary from the adjoining vested forest. Before the Tribunal, on the side of the applicant Ext. P1 registered document dated 4.4.1955 was produced and the brother of the applicant was examined as P.W. 1. On the side of the Department, Forest Range Officer, Kuttiadi was examined as RW-1. After considering all the aspects of the matter the Tribunal had earlier dismissed the application.