Point of Law : The term ‘cultivation’ implies a systematic agricultural or farming activity, including tilling of the soil, sowing seeds of particular crop, nurturing the same by supplying water, fertilizers, if any, required etc., until the crops are grown to such extent, so as to reap the produce.

JUDGMENT :

C. JAYACHANDRAN, J.

1. The State, as well as, the Custodian of the vested forest, Palakkad are the appellants in this Miscellaneous First Appeal. The order under challenge is the one passed by the Forest Tribunal, Kozhikode dated 17.12.2003 in O.A. No. 25 of 2001. The sole respondent herein preferred the Original Application under Section 8 of the Kerala Private Forest (Vesting and Assignments) Act, 1971 for a declaration that the property scheduled therein is not a private forest and not vested in the Government; and in the alternative, for exemption under Sections 3(2) and 3(3) of the Act. By the impugned order, the Tribunal found that the disputed property is a private forest, which vests with the Government. However, the Tribunal also found that the applicant is entitled to exemption under Section 3(2) of the Act.

2. Heard Sri. Nagaraj Narayanan, learned Special Government Pleader (Forest) and Sri. Mohanakannan, learned counsel for the respondent. Perused the records.

3. Learned Special Government Pleader submitted that the order under challenge is a non speaking one. No reason other than a bald statement that the father of PW-1 was cultivating the property - a self serving statement - is seen reckoned in the impugned order to find that the applicant is entitled to exemption under Section 3(2) of the Act. Learned Special Government Pleader submitted that, all what is available in the property is 7 tamarind trees and 3 Chadachikora trees, the former aged between 50 - 60 years and latter between 30-35 years. The Commissioner found that, there are no signs of any cultivation in the property. This has been taken judicial note of in paragraph no. 10 of the impugned order. However, in disregard of the above referred circumstances, the Tribunal, without stating any reason, found that the applicant is entitled for the exemption. It is also pointed out that, no record, whatsoever, to show the cultivation in the subject property was produced by the applicant, albeit his version in cross examination that, he is possessed of such records. Learned Special Government Pleader emphatically stressed on the burden of proof to pin point that the same unequivocally is on the applicant only, in support of which proposition, he relied upon the following decisions:

(i) Unreported decision of High Court in M.F.A. No. 12 of 1980 dated 10.01.1986

(ii) State of Kerala vs. Thomas, 1987 (1) KLT 530

(iii) State of Kerala vs. Kunchiraman, 1990 (1) KLT 382

(iv) State of Kerala vs. Chandralekha, 1995 (2) KLT 152 (F.B.)

(v) State of Kerala and Another vs. Popular Estate and Another, (2004) 12 SCC 434

4. Per contra, learned counsel for the respondent argued to sustain the impugned order. It was pointed out that, there was specific pleading in the original application as regards cultivation made by the applicant's father, Marutha Boyan, after purchasing the property in the year 1961, wherein, there is specific averment with respect to the cultivation of tamarind trees. The existence of tamarind trees, though 7 in number, has been found by the Advocate Commissioner. It was also pleaded that, due to the obstruction on the part of the forest officials, the property could not be cultivated for two years prior to the death of Marutha Boyan. Therefore, according to the learned counsel, the order impugned is fully justified in finding that the applicant's father was cultivating the property at the relevant time, wherefore, the applicant is entitled to the exemption under Section 3(2) of the Act. That apart, learned counsel took us through the evidence tendered by PW-1 to highlight that the factum of cultivation was very much spoken of by PW-1 before the court, which version remained unchallenged in the cross examination. As regards the claim of Section 3(3) of the Act, learned counsel submitted the requirements of a valid registered deed coupled with the intention to cultivate is amply demonstrated by the facts and evidence. On such premise, learned counsel seeks