The identity of property under the Vesting Act is conclusive and does not depend on notification; remand for further evidence under specific sections is necessary.

Sathish Ninan, J.

The order of the Forest Tribunal dismissing the original application seeking a declaration that the application schedule property is exempted from vesting under the Kerala Private Forests (Vesting and Assignment) Act (hereinafter referred to as 'the Vesting Act'), is under challenge in this appeal by the applicant.

2. The property involved has an extent of 13 cents.

It is situated in Old.Sy.138/5A-1A corresponding to Re.Sy.No.29/7. The applicant alleges that the forest officials are obstructing the enjoyment of the property by claiming it to be a vested forest. According to the applicant, the property is exempted from vesting under Sections 3 (2) and 3 (3) of the Vesting Act.

3. The Tribunal held that Ext.C1 Commissioner's report is insufficient to find that the property was under cultivation or with an intention to cultivate, as on the appointed day.

4. We have heard Shri.M.P. Madhavankutty, the learned counsel for the appellant-applicant and Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forests)

for the respondents.

5. The main contention urged before us by the learned counsel for the appellant is that, Ext.B1 notification under the Vesting Act does not include the survey number of the application schedule property, namely, Old.Sy.No.138/5A-1A. He would contend that, even going by the case of the respondents, the property in Sy.No.138/5A-1A is un-notified and hence not vested in the Government.

6. The respondents claim that the property in question bears Old.Sy.No.140/1A and that it is a vested forest.

7. We find that, with regard to the identity of the property, there is no dispute. The dispute is only with regard to the old survey number of the property. Ext.A3, the basic tax register, coupled with Ext.A4, the correlation statement of survey fields, sufficiently indicate that the correct survey number of the property in question is Old.Sy.No.138/5A-1A as claimed by the applicant. Admittedly, the said survey number is not included in Ext.B1 vesting notification. However, the mere fact that the property in Sy.No.138/5A-1A is not notified, does not save the property from being a 'vested forest' if factually, the property satisfies the requirements of a 'vested forest' under the Vesting Act. The vesting of a property under the 'vested forest' is automatic under Section 3 (1) of the Vesting Act and is not dependent upon a notification. [See: Bhargavi Amma v. State of Kerala [ 1997 (2) KLT 513 ]; Ranga Sesha Hills (P) Ltd. V. State of Kerala [ 1991(2) KLT 49 ]; Palpatta Veeran v. State of Kerala [2016 (3) KHC 418]; and Ayyappankutty Ezhuthassan, S/o.Krishnan Ezhuthassan v. State of Kerala [ 2023 (2) KHC 127 ]. Therefore, the mere fact that the survey number of the property in question is not included in the notification or even that the property is not notified, by itself, does not make the property excluded from vesting, if otherwise the property exhibits the characteristics of a 'vested forest'. Therefore, the attempt of the appellant to save the property from vesting, taking the advantage of the non-inclusion of the survey number of the property in Ext.B1 notification, cannot succeed.

8. Now, it is to be considered whether the applicant is entitled for the benefits under Section 3 (2) or (3) of the Vesting Act. The evidence available on record as above is meager to decide on the issue. All that is available is the evidence of PW1 and Ext.C1 Commissioner's report. The learned counsel for the appellant submitted that, before the Tribunal the parties were drawn to the question of identity of the property and hence the issue of satisfaction of the ingredients of Sectio