Claimants must prove property identity and contiguity to be excluded from the Vesting Act; mere assertions without evidence fail to establish a claim.

JUDGMENT :

Sathish Ninan, J.

This appeal is by the respective claimants in O.A.Nos.25, 26, 27 and 28 of 2002 of the Forest Tribunal, challenging the dismissal of their original applications, seeking a declaration that the O.A scheduled properties are not vested under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (herein after referred to as “the Vesting Act”).

2. The extent of the property covered in each of the original applications is 20 acres; thus, the total extent of properties involved is 80 acres. The properties are situated in Sy.No.83(part), in Kumaranellur Village, Kozhikode Taluk. The properties originally belonged to Manakkal Puthiyaveetil Tharavadu. The applicants claim title under Ext.A1 Assignment Deed dated 29.03.1963 as included in schedule item No.7 in Ext.A1. Ext.A2 is the prior title deed. It is the 'Kanom Deed' dated 19.10.1920 entered into by the prior holder with the 'Janmi'. Ext.B1 is the notification dated 08.07.1977 issued under the Vesting Act. The property is stated to be included in VFC item No.129, as part of “Paikkada Malavaram”.

3. According to the applicants, the properties were under fugitive cultivation even before the coming into force of the Madras Preservation of Private Forests Act, 1949 (herein after referred to as “the MPPF Act”) and hence, the MPPF Act is not applicable. Since the MPPF Act did not apply as on the appointed day, the Vesting Act is also not applicable. Alleging that there has been obstructions from the Forest Department with regard to enjoyment of the properties, the original applications were filed.

4. The Tribunal had originally dismissed the original applications. Challenging the same, the applicants approached this Court in M.F.A. (Forest) No.1 of 2006. This Court set aide the order of the Tribunal and remanded the matter back to the Tribunal granting opportunity to both sides to raise additional pleadings and adduce additional evidence, and establish their contentions. After the remand, additional evidence was taken by the Tribunal. Again, the original applications were dismissed.

5. We have heard Shri.M.P. Madhavankutty, the learned counsel for the appellants-applicants and Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forest) for the respondent-State.

6. Shri.M.P. Madhavankutty, the learned counsel for the appellants, would submit that the primary requirement for the applicability of the MPPF Act is not satisfied in the instant case. The application schedule properties must be part of a private forest having a contiguous area of 100 acres. The materials on record establish that the 100 acres criteria is not satisfied. He next contended that, even assuming that the total extend is 100 acres, still, there is a road dividing the properties into two. Thus, the contiguous nature is disrupted. The extent of each parts after such division will be less than 100 acres. Therefore, the MPPF Act is not attracted. He also argued that the explanation provided under Section 1 (2) (iii) that the existence of roads will not operate against the contiguous nature, does not apply for Section 1 (2) (i). It is next contended that, even if the said condition of contiguous area of 100 acres is taken as satisfied, still the application schedule properties were under fugitive cultivation prior to 14.07.2009. Hence, the application of the MPPF Act stands excluded under the Explanation to Section 1 (2) (i). Thus, viewed in any manner, the MPPF Act did not apply to the application schedule properties and is not a private forest under the Vesting Act, is the contention.

7. All the contentions urged by the appellants are countered by the learned Special Government Pleader. However, he would submit that the said questions would not crop up for adjudication in the present case since the Original Applications are bound to fail on the sole ground of failure of the applicants to establish the identity of the application scheduled properties.

8. The learned counsel for the ap