The burden of proof is on the claimant to establish that the land was not private forest on the appointed date, and local inspection observations and statements should not be used as evidence.

Thomas, J.

1. A Forest Tribunal declared, by the impugned order, that the disputed land (10 acres in extent) is not private forest which vested in Government as per S.3(1) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short "Vesting Act"). The order is challenged in this appeal by the State and Custodian of Vested Forests.

2. In the Original Application, the claimant has stated, inter alia, that the disputed land forms part of a larger extent of land which once belonged to Poralam Devaswom and that in the year 1941, the said Devaswom granted a lease of 400 acres of land to one Joseph who, in turn, leased 40 acres therefrom (which includes the disputed land) to one Ayamootty in the year 1942. It is further averred in the application that Ayamootty cultivated the land with pepper, tapioca and ginger and in 1957 the disputed land was leased by the said Ayamootty in favour of the claimant who continued cultivation therein, and that the improvements effected in the property got destroyed in a forest fire during 1975-76 and thereafter he could not cultivate the land due to other imponderables. As the forest officials obstructed him from enjoying the land, he filed the Original Application under S.8 of the Vesting Act.

3. The application was resisted by the Custodian of Vested Forests. In the counter affidavit filed on his behalf, it is claimed that the disputed land is portion of a large area of forest land in North Wynad Taluk, to which the provisions of Madras Preservation of Private Forests Act, 1949 (for short'M. P. P. F. Act') applied immediately before the appointed date under the Vesting Act. It is further contended that the disputed land was never under cultivation of any person and it remained as forest area right through.

4. Under S.3(1) of the Vesting Act, the ownership and possession of all private forests stood transferred and vested in the Government on and from the appointed day (10-5-1971). "Private Forests" as defined in S.2(f) of the Vesting Act includes any land to which M. P. P. F. Act applied immediately before the appointed day. In this case, RW.1 who was the Forester of the Range concerned from the appointed day and RW.2 who was the Forest Range Officer have deposed that the disputed land was portion of a larger tract of private forest falling within the purview of M. P. P. F. Act. The said assertion of the two witnesses has not been challenged in cross-examination.

5. Learned counsel for the respondents contended that mere statement of the forest officials is not enough to prove that a particular land fell within the ambit of M. P. P. F. Act or that it was private forest on the appointed day. According to the counsel, the burden is on the appellants who assert that the land is private forest to prove the same. Support to the said contention was sought to be obtained from an observation contained in the judgment in M. F. A. No.271/77 dated 12-12-1979 to the effect that "if once it was denied that it was forest land, the burden of proving that these were forest lands, was in the State". We may observe, with great respect, that the aforesaid judgment cannot be treated as laying down the law on the point that burden of proof in such proceedings is on the Custodian as against a person who claims that the land was not private forest on the appointed day. The question of burden of proof on this point has to be looked at from a practical angle. When the dispute is in respect of a land situated in the high ranges, the court will be justified in presuming that it originally was a forest area. The geographical specialities of the lands in Kerala would support such presumption. Position may be different if the land is situated in the plains or in lower regions such as Kuttanadu areas. It requires no effort to assume that areas which now form Wynadu District were by and large forest regions at least rill the commencement of the latter half of this century. Hence it would be pedantic to insis