IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 128 of 2006(A)
1. A.K.RAJU, S/O. LATE KUNJIRA,
... Petitioner
2. A.K.THANKAMANI, D/O. LATE KUNJIRA,
3. A.K.KASUMANI, S/O. LATE KUNJIRA,
4. A.K.RUGMINI, D/O. LATE KUNJIRA,
5. A.K.UNNIKRISHNAN, S/O. LATE KUNJIRA,
6. A.K.PREMA, D/O. LATE KUNJIRA,
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE CUSTODIAN OF VESTED FORESTS,
3. A.K.MANIKANDAN, S/O. LATE KUNJIRA,
For Petitioner :SRI.P.R.VENKETESH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :16/11/2009
O R D E R
P.R.RAMAN & P.R.RAMACHANDRA MENON
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M.F.A.No. 128 of 2006
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Dated this the 16th November, 2009
J U D G M E N T
Raman, J.
Appellants-petitioners filed O.A.No.21 of 2002
before the Forest Tribunal, Kozhikode, for a declaration that the
Petition Scheduled Property is not a Private Forests vested in
Government and in the alternative for exemption under Section
3(2) and 3(3) of the Kerala Private Forests (Vesting and
Assignment) Act 26/71, herein after referred to as ‘the Vesting
Act’ for short.
2. According to the appellants, the petition
scheduled property comprised in Survey Nos.7/2A1 and 3A
(resurvey No.84/3) in Parali-I Village of an extent of 4.40 acres
was the subject matter of the lease obtained from the Jenmi
Mannuur Nayarveedu family, as evidenced by Ext.A1 lease deed
of the year 10.4.1961. Thereafter, this was under cultivation
MFA.128 of 2006.
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with various seasonal crops and that this was never a private
forest. It is also contended that in order to attract the provisions
of MPPF Act, there may be a total extent of 100 acres, and
according to them, the land on the northern side of the property
of the petitioners is a rubber plantation and beyond the northern
side of that plantation is a private forest. Therefore, if this
plantation is taken as disruption to the continuity of 100 acres,
then this land will not fall under the MPPF Act. The Tribunal
further held that the land was encroached on the northern side by
somebody, but that will not loose its continuity. But there is no
finding that the said rubber plantation was originally a part of the
Private forest governed by the provisions of the MPPF Act. As a
matter of fact, if the land in question is included in the
notification, certainly, if the rubber plantation lying north of it
would have also been included in the notification and the
outcome of treating the rubber plantation as a private forest is a
matter specifically within the knowledge of the Forest
Department. Once evidence is adduced to show that land on
the northern side is either a private forest or not, then it could be
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said as to whether the continuity of 100 acres is lost or not. In
the absence of any such attempt, it is not possible to hold that
the land in question was governed by the provisions of the MPPF
Act. Better evidence could have been adduced by either side on
this point.
3. Though the appellants have produced tax
receipts to show proof of possession, read with Ext.A1, the
Tribunal did not accept the said evidence only for the reason that
the tax receipt did not contain the recitals. But PW.1 was
examined in the case and Ext.A18 has been produced to show
that this land originally belonged to the Mannuur Nayarveedu
Tharavadu and this was included in the partition suit. In such
cases, the approach of the Tribunal should be to consider the
over all evidence adduced in the case, viz., whether originally the
owner is the lessor as contended by the petitioners; whether for
that partition, Ext.A18 could have been looked into and then to
see whether the tax receipt produced would relate to the land in
question, and whether the petitioners have got any other land
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other than this to come to the conclusion that the receipt, Ext.A1,
is the tax receipt relate to the same property or not.
4. When it is contended that the land was
cultivated with seasonal crops, the fact that it could not be
proved by any documentary evidence is not proper, because
even if the other larger extent is either a plantation or cultivation
of agricultural crops, there could be a small extent of land
left as Paramba, and for cultivation of seasonable crops in such
parambas, normally there will not be any documentary evidence
of proof. Therefore, the oral testimony can certainly be looked
into, and if the court is satisfied with such oral evidence, then
there is nothing wrong in accepting the oral evidence regarding
the nature of the cultivation that has been effected. We find
that the approach made by the Tribunal is not proper. For all
the above reasons, we find that the matter needs re-
consideration.
5. Accordingly, we set aside the impugned order.
The matter is remitted back to the Tribunal for fresh
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consideration, with liberty to the parties to adduce further
evidence. The Tribunal shall, after considering the additional
evidence, consider the matter afresh and pass final orders, in
accordance with law.
The appeal is thus allowed by way of remand. The
parties shall appear before the Tribunal on 11.1.2010.
P.R.RAMAN, JUDGE
P.R.RAMACHANDRA MENON, JUDGE.
nj.