Judgment · High Court · 2007

Cause title

M.F.A.1779/1998 RESPONDENTS/RESPONDENTS: ------------- 1.THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM.2.THE CUSTODIAN OF VESTED FORESTS,OLAVAKKODE, PALAKKAD DISTRICT.BY SPL. GOVERNMENT PLEADER SRI.M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2007 ALONG WITH MFA NO.310 OF 1999

AND MFA NO. 393 OF 1999

, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.1779/1998ORDER ON C.M.P.NO.7438/1998 IN M.F.A.1779/1998DISMISSED.8.6.2007SD/- J.B.KOSHY, JUDGESD/- K.P.BALACHANDRAN, JUDGE J.B.KOSHY & K.P.BALACHANDRAN, JJ.-------------------------------M.F.A.NOS.1779 OF 1998

,310 & 393 OF 1999 ()-----------------------------------Dated this the 8th day of June, 2007J U D G M E N TKOSHY,J.Appellants in these cases claimed that their landdescribed in the schedule to the application are not vestedunder Kerala Private Forest (Vesting and Assignment) Act, 1971(in short 'The Act'). There is no dispute that the area inquestion was a private forest as it was land covered under Madras Preservation of Private Forest Act, 1949. (See Section2 (f) 1 (i) of the Act defines Private Forest). Their case is thatthey are entitled to get the exemption under Sections 3(2) or3(3) of the Act. Under Section 3(1) all private forests in Keralaare vested in the Government automatically on the appointedday (10.5.1971, unless it is exempted. Section 3(1) reads asfollows: M.F.A.NOS.1779 OF 1998

,310 & 393 OF 1999 ()2“Section 3(1): Notwithstanding anything containedin any other law for the time being in force, or in anycontract or other document, but subject to theprovisions of sub-sections (2) and (3), with effect onand from the appointed day, the ownership andpossession of all private forests in the State of Keralashall by virtue of this Act, stand transferred to andvested in the Government free from allencumbrances, and the right, title and interest of theowner or any other person in any private forest shallstand extinguished.” There is no case that at the time when the Act came into forceit was cultivated so as to get benefit under Sections 3(2).Then the question is whether they had valid title and they haveintention to cultivate the property as on 10.5.1971. Sections3(2) and 3(3) reads as follows: Section 3(2): Nothing contained in sub-section (1)shall apply in respect of so much extent of landcomprised in private forests held by an owner underhis personal cultivation as is within the ceiling limitapplicable to him under the Kerala Land Reforms Act,1963 (1 of 1964) or any building or structure standingthereon or appurtenant thereto. Section 3(3): Nothing contained in sub-section (1)shall apply in respect of so much extent of privateforests held by an owner under a valid registereddocument of title executed before the appointed dayand intended for cultivation by him, which togetherwith other lands held by him to which Chapter III of M.F.A.NOS.1779 OF 1998

,310 & 393 OF 1999 ()3the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling areapplicable to him under Section 82 of the said Act.” All the claimants contended that they were holding theproperty in view of Ext.P1 certified copy of the final decree. The above judgment and decree would show that in partitionsuit the applicants got the property and therefore they are theowners of the property. The tribunal correctly accepted thecontention that a separate title deed is not necessary. Ext.P1 issufficient. But according to the tribunal it is not proved by theclaimants that the properties mentioned in Ext.P1 is theproperties claimed because survey numbers shown aredifferent. However, there was no such case for the respondentState that the property was different. Apart from the above, we note that difference in survey number is due to re-surveys. There were two re-surveys. In the second re-survey thenumber was again changed. Commissioner also identified theproperty. Therefore we are of the opinion that property wasidentified and covered by Ext.P1 valid title to the appellants. For getting entitlement of the benefit under Section 3(3) apart M.F.A.NOS.1779 OF 1998

,310 & 393 OF 1999 ()4from title, claimants shall also establish that there wasintention to cultivate the properties on the appointed day andburden to prove the same is on the claimants. Mere assertionthat there was an intention to cultivate is not enough. Thereshould be something in evidence to show that there wasintention to cultivate the property on the appointed day. In thiscase except one O.A.No.16/1982 other O.A.'s were filed in1993. O.A.No.16 was filed in 1982. If on the appointed day, there was an intention to cultivate, by expiry of 10 or 20 yearsat least they should have done something for cultivation. Butthere was no evidence to show that even after expiry of twodecades, applicants did do any act manifesting their intentionto cultivate the land. Mere possession of private forest is notenough to show that there was intention to cultivate and all theprivate forest owned and possessed by many vestedin the Government because of the operation of the Act. In thisconnection we also refer to the Commission report. Commissioner found that though these lands were situatednear a road the scheduled land is a dense forest. It wasalso surrounded by forest. It was full of forest trees and M.F.A.NOS.1779 OF 1998

,310 & 393 OF 1999 ()5there was no evidence of any cultivation. Considering the factsand circumstances of the case, we are of the view that thefindings of the tribunal that claimants were not able to provethat there was intention to cultivate cannot be interfered withand hence all these appeals are dismissed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGEprp J.B.KOSHY & K.P.BALACHANDRAN, JJ.--------------------------------------------------------M.F.A.NOS.1779 OF 1998

,310 & 393 OF 1999 ()---------------------------------------------------------

J U D G M E N T---------------------------------------------------------