R. Rajendra Babu, J.
1. This appeal is at the instance of the petitioner in O.A. 211/78 before the Forest Tribunal, Palakkad. They filed the application under S. 8 of the Kerala Private Forests (Vesting and Assignment) Act for a declaration in respect of 13.77 acres of land. The tribunal as per its order dt. 26.9.1987 allowed the claim under S. 3(2) and 3(3) of the Act in respect of 1.91 acres of land and rejected the claim in respect of the rest of the property. Aggrieved by the above order, the petitioners have come up in appeal.
2. The petitioners filed the O.A. for declaration under S. 8 of the Act in respect of 13.77 acres of land in Thrikkitiri village of Ottapalam taluk. It was alleged that there were 15 polonyrahs trees and the entire property was cultivated with dry crops and was not a forest area. The properties belonged to Varikkumancheri Mana in ancient jenum and in the permanent settlement register, the name of the first applicant’s father Narayanan Namboodiripad was shown as the Karnavan of the Illom. The entire property was agricultural land and some of the items were outstanding with tenants and later in 1956 the tenants surrendered the property. There was on oral partition in the undivided illom and the scheduled items of properties were allotted to the applicants separately and those items were in the personal possession and cultivation of the petitioners.
3. The respondents, the State of Kerala and the Custodian of Vested Forests, contended that the entire property was part of Ananganmala which was lying contiguous with other forest areas of hundreds of acres and was within the purview of the erstwhile MPPF Act. The entire area was shrub jungle and was never under cultivation at any point of time. The State disputed the title of the petitioners and contended that it was for the petitioners to prove that they were holding property within the ceiling area under the Land Reforms Act.
4. PW.1 was examined and Ext. A1 was marked. RW1 also was examined. The Tribunal as per its order dt. 23.7.1980 allowed the petition in respect of 10.23 acres and ordered to release the same. The respondents preferred MFA 580/80 before this Court and the order of the tribunal was set aside and the matter was remanded to the Tribunal for a fresh disposal by this Court as per the order dt. 17.8.1986 and directed the tribunal to give opportunity to both sides to let in further evidence. Thereafter a commissioner was appointed and he filed Ext. C1 report. PW1 was further examined and Exts. A2 to A13 were marked. After considering the evidence the Tribunal found that the property was private forest and was under the personal cultivation of the petitioners as on the appointed day viz., on 10.5.1971 and that the petitioners had title to the property. It was further held that the petitioner had land to the extent of 13.09 acres and as they were entitled to 15 acres of land as a whole, the claim in respect of 1.91 acres of land was allowed and with respect to the rest of the claim, the petition was dismissed.
5. Heard the learned counsel for the appellant and the learned Special Government Pleader.
6. The only argument advanced by the learned counsel for the appellants was that the appellants were entitled to hold 15 acres of forest land irrespective of the extent of other property held by them in view of S. 3(2) and 3(3) of the Act. The learned counsel for the petitioners was relying on the difference in the wording in sub-s. (2) and (3) of S. 3 of the Act so as to advance an argument that the forest land which could be held by the petitioners is in addition to the land they could hold under the Land Reforms Act. Sub.s (1) of S. 3 of the Act deals with the vesting of the private forest with the Government. The above vesting is subject of sub-s. (2) and (3) of S. 3 of the Act, which reads:
“(2) Nothing contained in sub-s. (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963(1 to 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation:- For the purpose of this sub-section, ‘cultivation’ includes cultivation of trees or plants of any species.
(3) Nothing contained in sub-s. (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with another lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under S. 82 of the said Act.”
In this context, it would be relevant to look into the definition of ‘private forest’ as defined in S. 2(f) of the Act. S.2(f) reads:
“(f) “private forest” means-
(1) in relation to the Malabar district referred to in sub-s. (2) of S. 5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956)-
(i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding-
(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964).
(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.
Explanation:- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;
(C) lands which are principally cultivated with cashew or to her fruit bearing trees or are principally cultivated with any other agricultural crops and
(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;
(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.
(2) in relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas”.
In fact the above definition of “private forest” would indicate that the properties which had been improved and under actual cultivation coming under sub-clauses A to D of clause (i) are not treated as private forest and those properties would come under sub-s. (2) of S. 3 of the Act. The definition of “private forest” in S. 2(47) of the Land Act also has to be considered in this context. It reads:
“(47) “private forest” means a forest which is not owned by the Government, but does not include-
(i) areas which are waste and are not enclaves within wooded areas;
(ii) areas which are gardens or nilams;
(iii) areas which are planted with tea, coffee, cocoa, rubber, cardamom or cinnamon; and
(iv) other areas which are cultivated with pepper, arecanut, coconut, cashew or other fruit-bearing trees or area cultivated with any other agricultural crop”
There also the forest area which had been cultivated or improved had been excluded from the definition of private forest. Thus a consideration of the definition of “forest land” as defined in the Act as well as in the Land Reforms Act would make it clear that the private forest converting into garden lands, paddy fields or plantations or cultivated ceased to be private forest under the definition of private forest under the Act as well as the Kerala Land Reforms Act and such properties would come under sub-s. (2) of S. 3 of the Act. By virtue of sub-s. (2) of S. 3 of the Act, such land viz., land converted into agricultural land or cultivated land does not vest in the Government. In fact property coming within the exemption under sub-s. (2) of S. 3 is property which is not private forest as defined in the above Acts and those properties have to be considered for fixing the ceiling limits along with other properties as such land cannot be treated as forest land. But sub-s. (3) of the Act gives a special exemption to so much extent of private forest which a person is holding with the intention for cultivation and in fact that property continues to be a forest land and that is the reason why it is specifically mentioned in sub-s. (3) that the property eligible to be assigned as per sub-s. (3) of S. 3 has to be taken along with other properties for fixing the ceiling limits as per the Land Reforms Act. Thus the land covered by sub-s. (2) as well as sub-s. (3) should be taken along with the other properties for fixing the ceiling limits under the Land Reforms Act. Hence by the difference in the wording in sub-s. (2) and (3) it cannot be held that a person holding private forest is entitled to hold 15 acres of private forest in addition to the other lands held by him. Hence the above argument advanced by the learned counsel for the appellant cannot be accepted.
7. The Tribunal has considered the extent of land which the petitioners could hold in view of the provisions of the Land Reforms Act. The Land Board also has considered and we find no reasons to interfere with the above finding. No other grounds were canvassed before us at the time of argument. Hence we find no reasons to interfere with the above order passed by the Tribunal and this appeal has only to be dismissed.
8. In the result this appeal is dismissed.