JUDGMENT

K.Vinod Chandran, J Both the appeals are from the common order of the Forest Tribunal granting a declaration under S.3(2) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act'), for the respective properties scheduled in the two applications. The application scheduled property was comprised in a larger extent belonging in janmam to the family of one Sankaran Nair, on whose death there was a partition in the family in the year1984. Even prior to the partition, the property was jointly possessed and enjoyed by the wife and children of Sankaran Nair. After his demise, a purchase certificate was issued in the name of the wife of Sankaran Nair, Lakshmikutty. By the partition, 'E' schedule property was allotted to the applicant in O.A No.

29/2008. The application schedule properties were comprised in item Nos. 6 to 9 in E schedule property, a part of which in item No.7 was sold by the applicant in O.A No. 29/2008 to the applicant in O.A No. 28/2008, in the year 2008. The predecessor-in-interest of the applicants who held the property as on the appointed day was the same and the properties lying adjacent were existing as garden lands and not forest lands. There was fugitive cultivation carried on in the property by Sankaran Nair and after his demise, his legal representatives. The owner of the property did not have lands exceeding the ceiling limits under the Kerala Land Reforms Act; asserted the applicants.

2. The Custodian of Vested Forests, Eastern Circle, Palakkad resisted the application pointing out that the scheduled lands were comprised within a total extent of 69.57 hectares, part of a huge malavaram known as Chovvllurmanakkad . The properties were notified as VFC item No.71 on 10.10.1979, being a part of the erstwhile Madras Preservation of Private Forest Act, 1949 (for brevity 'the MPPF Act'). The property exists on the field as a typical forest with miscellaneous undergrowth and forest species trees. The claim for exemption was stoutly denied.

3. We heard Sri. Nagaraj Narayanan, learned Special Government Pleader (Forest) and Sri.Sajan Varghese K learned Counsel for the applicant.

4. On a joint trial PWs1 and 2 were examined who proved

Ext.A1 to A6 documents. RW1 was examined on behalf of the Forest Department producing and proving Exts.B1 to B3. Commission report

Ext.C1 was accompanied with Ext.C1(a) plan and there was a subsequent

commission report Ext.C2.

5. The Tribunal raised four issues of limitation, the nature and status of the property, the claim of exemption under S.3(2)&(3) and entitlement for a declaration under the Vesting Act. On the question of limitation it was found that there was no proof of the date of publication of notification, in accordance with the statutory rule. We find no reason to differ from the finding of the Tribunal on that aspect.

6. The Tribunal then examined the issue whether the land is

governed by the MPPF Act. Admittedly it was lying within the Malabar district and was comprised within a total extent of more than 100 acres. State of Kerala v. Chandraleka [1995 (2) KLT 152 (FB)] and

2014(3)KHC782 Kunhiraman P.V v. Custodian were relied on to find the burden, to prove that the land is not governed by the MPPF Act, to be squarely on the applicants. There was no proof offered by the applicants on this aspect and the land scheduled was rightly held to be governed by the MPPF Act.

7. As to the exclusion under S.2(f)(1)(i), the Tribunal examined each of the clauses entitling exclusion from the definition of forest under the Vesting Act. Under clause (A), the land be garden land or nilam, under clause (B), plantation and under clause (C), cultivated with fruit bearing trees. The decision of this Court defining agricultural crops (State of Kerala v. Amalgamated Malabar Estate Pvt. Ltd [1979 KLT 829]