The intention to cultivate must be proven as existing on the appointed day for exemption from vesting under the Vesting Act.

JUDGMENT :

Sathish Ninan, J.

The order of the Tribunal, declaring the application schedule property to be excluded from vesting under the Government under the Kerala Private Forests (Vesting and Assignment) Act , 1971 (hereinafter referred to as 'the Vesting Act'), is under challenge in this appeal by the State.

2. The application schedule property has an extent of 22.14 acres. The property belonged to one late Krishnankutty Nair, on 'Verumpattom' right under Ext.A1 Lease Deed of the year 1945. The 1^st applicant is the widow and the 2^nd petitioner and the 3^rd respondent are his children. Alleging obstruction by the forest officials in the enjoyment of the property claiming it be vested forest, the original application was filed. The applicants claimed that the property is exempted from vesting under Sections 3 (2) and 3 (3) of the Vesting Act.

3. The Tribunal upheld the claim of exemption under Section 3 (3) of the Vesting Act. Incidentally it is noticed that it is the third round of litigation followed by two earlier remands by this Court.

4. We have heard Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forests) for the appellants- applicants and Shri.P. Vijayakumar, the learned counsel for the respondents.

5. The points that arise for determination in this appeal are;

(i) Are the claimants entitled for exclusion from vesting under Section 3 (2) or 3(3) of the Vesting Act?

(ii) Does the order of the Tribunal warrant any interference?

6. The Tribunal, as per the impugned order, held that the property is excluded from vesting under Section 3 (3) of the Act. To claim exemption under (3), the applicant has to prove; (i) that the property is held under a valid registered title deed executed before the appointed day (10.05.1971); (ii) that he does not hold property in excess of ceiling area, including the property claimed; (iii) that the property was held, as on the appointed day, with an intention to cultivate.

7. The Tribunal held that the applicant established all the three ingredients above. The learned Special Government Pleader (Forest) was unable to point out any material to interfere with the findings on ingredients (i) and (ii) above. The main challenge is with regard to the finding on ingredient (iii) namely, that as on the appointed day the applicant was holding the property with an intention to cultivate.

8. With regard to the intention of the applicants to cultivate the property as on the appointed day, all that has been stated by the Tribunal is at paragraph 12 of the order. It reads thus:

“12. PW2 the second applicant has stated that they had the intention to plant rubber in the disputed property during 1970-71. But due to financial difficulties they could not plant rubber. I therefore find that the 2 applicants had the intention to cultivate the rubber in the property. As I have found that the applicants have title and are holding lands within the ceiling limit and they had intention to cultivate the disputed land during 1970-71 they are entitled for the benefits of exclusion u/s 3 (3) of the Vesting Act. Point found in favour of the applicant.”

This is the only discussion by the Tribunal, on the point. Evidently, the Tribunal had relied solely upon the oral evidence of the 2^nd applicant as PW3 (mistakenly written in the order as PW2). According to PW3, though during the period 1970-71 the applicants had the intention to plant the property with rubber, due to financial constraints, they were unable to do so. There is no evidence that they had attempted to raise money from any source to do the cultivation. Moreover, there is no plea in the original application that the