MENON A K Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners in O.A. No. 16 of 2003 before the Forest Tribunal, Kozhikode (hereinafter referred to as "the Tribunal"), aggrieved by the dismissal of their application filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as "the Vesting Act") have come up in appeal challenging the order of the Tribunal. Briefly put, the case of the appellants is as follows: Petition schedule property along with other items originally belonged in jenm to Varukkumanchery Mana. It was outstanding in kanom right to the family of one Raghavan. There was a partition in his family by Document No. 645 of 1925 of SRO, Parali. In that partition, it was allotted to the share of Raghavan. On his death, it devolved on his daughter Suseela. Kanom right was renewed as per Ext. A-1 document of the year 1937 in the name of Suseela. At that time Suseela was a minor. On attaining majority, Suseela assigned the property as per Ext. A-2 document of the year 1965 in favour of one Sainabha Umma. Later, she sold the property to the appellants as per Document No. 1276 of 1975 of SRO, Parali (Ext. A-3). Appellants are in possession and enjoyment of the property ever since the purchase. Officials of the Forest Department sought to disturb their possession on the pretext that the area is a private forest vested in the Government. Therefore, they approached the Tribunal for a declaration that the property is not a private forest covered under the provisions of the Madras Preservation of Private Forests Act, 1949 (hereinafter referred to as "the MPPF Act") or under the provisions of the Vesting Act. It is a parcel of dry land. The area had no characteristics of a forest at any point of time. Sainabha Umma purchased the property with an intention to cultivate and she actually cultivated thereon. Entire area was brought under a single fencing and it was put to use by regular cultivation, except in the rocky patches on the northern side. Fruit bearing trees were also planted by Sainabha Umma, which were cut and removed by the appellants for developing the area into a rubber plantation. The entire holding, including the disputed property had been regularly cultivated before and as on 10-5-1971, the appointed day of the Vesting Act. Sainabha Umma and family as on 1-1-1970 did not possess lands in excess of the ceiling area prescribed under the Kerala Land Reforms Act (hereinafter referred to as "KLR Act"). She was entitled to the benefit of Sections 3(2) and 3(3) of the Vesting Act, in case the property is found to be a private forest.

(2.) Respondents filed a counter statement with the following contentions: The disputed property is part of vested forests known as Palakkuzhikkad Valarthukad VFC item No. 128, Bit No. I & II, which is lying contiguously and having a total extent of more than 52 hectares. As per the provisions of the Vesting Act, all private forests are deemed to be vested in the Government as on 10-5-1971. Ownership and possession of all private forests in the State of Kerala shall, by virtue of the Vesting Act, stand transferred to and vested with the Government free from all encumbrances and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. The properties were covered by the MPPF Act. The disputed property is a part of Palakkuzhikkad Valarthukad Malavaram, which was notified as per notification No. 1383 of 1979 dated 10-10-1979 by the Custodian of Vested Forests, Kozhikode. Copy of the notification has been produced. The disputed property along with other properties were demarcated and survey sketch had been prepared. Copy of the survey sketch, in which the disputed property is also included, has been produced. Respondents contended that the claim made by the appellants is hopelessly barred by limitation. The cause of action alleged in the application is denied by the respondents. According to the respondents, it is a story developed to escape from the law of limitation. Four boundaries in the petition schedule property are as shown below:

(3.) Appellants had not cultivated the area as on 10-5-1971 or prior to that date. The entire area is full of under growth consisting of grass and eupatorium. The respondents therefore prayed for dismissal of the application.