Properties without evidence of cultivation prior to the enactment of the Madras Preservation of Private Forests Act, 1949, are covered under the Act. A partition deed alone cannot establish valid title under the Kerala Private Forest [Vesting and Assignment] Act, 1971.

JUDGMENT :

K. Vinod Chandran, J.

The appeals arise from a common order of the Tribunal, in which the Tribunal mistakenly found that all the applicants are brothers. On going through the title deeds produced in the applications, we find that the applicants in O.A.No.30 of 2008 and O.A.No.35 of 2008 are brothers. We do not see any family connection between the said applicants and the applicant in O.A.No.34 of 2008. However, the property scheduled in the respective applications are lying contiguous and the contentions are also similar.

2. In O.A.Nos.30 & 35 of 2008, the title of the respective applicants is traced to Ext.A1. The parties therein are one Paru Amma, W/o. Krishnan Ezhuthassan and two children Ayyappankutti Ezhuthassan, the applicant in O.A.No.30 of 2008 and Raman Ezhuthassan, the applicant in O.A.No.35 of 2008. The partition was effected on the death of Krishnan Ezhuthassan and the three parties were referred to as the 1st, 2nd and 3rd branches in the partition deed. The scheduled properties in O.A.No.30 of 2008 have an extent of 2.12 Acres in Survey Nos.249/2,3,6A of Kadambazhipuram Village, Alangad Amsom, Ottappalam Taluk, Palakkad District. It was alleged that the lands are not private forests, they do not have the characteristic of a forest and was not governed by the Madras Preservation of Private Forests Act, 1949 [hereafter, 'the MPPF Act']. It was stated that the property was lying as a paramba wherein trees are grown in certain portions and the rest utilised to raise fugitive crops, which was the nature of the land well prior to 10.05.1971 and after that. The surrounding properties are also garden lands and the properties were held in common as also separately after the partition with the intention of carrying on cultivation. The applicant in O.A.No.35 of 2008 raised similar contentions with respect to the properties scheduled therein. The said O.A had two items of properties scheduled, item No.1 having 2.99 Acres in Survey Nos.249/2, 5 & 6 A in the same locality as in O.A.No.30 of 2008. The second item in the same locality has an extent of 1 Acre in Sy.No.252/2, 251/4, 136/1 and 143/3, 132/2 & 243/3. The contentions were identical to that in O.A.No.30 of 2008.

3. With respect to O.A.No.34 of 2008, Ext.A1 partition deed had 3 parties, the applicant and his parents Ayyappan Ezhuthassan and Kali @ Chinnu Amma. Four items were scheduled in the said O.A having an extent of 1 Acre in Survey No.134/3, 44 cents in Survey Nos.76/8, 213/1,2, 76/9, 213/3,4, 75 cents in Survey No.134/4 and 5 Acres 12 cents in Survey Nos.249/7, 249/6A,6C,4 & 5 in the same locality as in the other O.As. The contentions to enable an exemption under the Kerala Private Forest [Vesting and Assignment] Act, 1971 [hereafter, 'the Vesting Act'] are identical to that in the other O.As.

4. The respondent disputed the title, possession and enjoyment of the properties by the applicants. According to them the disputed property forms part of a malavaram (slope of hill) known as 'Velankunnu' having wide extent. The whole malavaram is vested under the Vesting Act and it comes under the preview of the MPPF Act. Survey and demarcation of the properties were completed and the scheduled properties were included as VFC item No.56 in the notification dated 10.10.1979. The O.A filed after 29 years is barred by limitation. It was also submitted that the land lies as a forest land without any symptoms of cultivation and even the boundaries stated in the application are not correct.

5. The Tribunal raised issues on whether the applications are barred by limitation, the nature and lie of the properties, the exemption sought under S.3(2) or (3) and the entitlement to the declaration. The ground of limitation was found against the State since there was nothing to prove that the notification was published in accordance with the statutory rules. The definition of private forest under the Vesting Act and the binding precedents; which cast the burden of proving the scheduled