Judgment :- 1. This appeal under S.8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter called the Act) is by the State and the Custodian of Vested Forests, Kozhikode. The Order under challenge is in a proceeding under S.8 of the Act for a declaration that the petition schedule property, 22.99 acres of land in Sy.No.569/1/1 of Pathanamthitta Village, has not vested in the State under the Act. The proceedings were initiated by respondents 1 to 4 who were the applicants before the Forest Tribunal. According to them, the petition schedule land which forms part of a larger extent of 99 acres was a plantation belonging to Zacharia and Sons Pvt. Ltd. The company went into liquidation and the liquidator as per three documents Exts. A1 to A3 dated 11-9-1969 assigned 33.65 acres to one V.Z. Joseph, 33.15 acres to V.Z.Zacharia and 33.14 acres to Smt. Elikutty Joseph. The company had registered it as a tea estate and the estate had Tea Board registration, which was renewed in the name of the assignees. Sri.V.Z.Joseph, the assignee under Ext.A1, assigned his rights under Exts.A4 and A5 dated 29-5-1979 to one K.C. Antony and Varkey. Under Exts.A6 to A9 dated 30-4-1980, K.C. Antony and Varkey assigned their rights to the four petitioners. Petition schedule property is a portion of the properties included in Ext.A1 sale deed in favour of V.S. Joseph and the applicants claim title on the basis of the above documents. They further alleged that the entire land is bounded on the east by Government reserve forest and is clearly demarcated by Kayyala and Fire Belt put up by the Forest Department. But after the Act came into force, the forest officials put up survey stones in the petition schedule property while it was in the possession of V.Z. Joseph and he filed O.A.No.133/77 before the Forest Tribunal under S.8 of the Act for a declaration that it is not a vested forest. Pending that he assigned it to Antony and Varkey under Exts.A4 and A5 authorising them to get themselves impleaded and prosecute the proceeding before the Tribunal. But they did not prosecute the matter and O.A.No.133/77 was dismissed for default by the Tribunal on 30-11-1979. Pending that he assigned it to Antony and Varkey under Exts.A4 and A5 authorising them to get themselves impleaded and prosecute the proceeding before the Tribunal. But they did not prosecute the matter and O.A.No.133/77 was dismissed for default by the Tribunal on 30-11-1979. After the purchase by the applicants in 1980, they made enquiries and came to understand that the proceeding initiated by V.Z.Joseph was dismissed for default and the present petition was filed on 19-6-1980. The disputed property forms part of a plantation area and is included within well-defined boundaries clearly marked for the entire estate. It is not a wooded area and the applicants and their predecessors have been doing regular cultivation of pepper, tea, cashew etc. and consequently it is not a private forest as defined in the Act and will not vest in the State. On these allegations, the application was made for a declaration as stated above. 2. The State and the Custodian filed a written objection wherein the title of the applicants over the land was not disputed; but they contended that the petition schedule property is lying adjacent to Kumaramperur reserve forest of Konni Range, that it is a wooded area consisting of teak and other miscellaneous forest species. There is a teak plantation in 1.5 hectares and the remaining area is a natural forest containing teak and miscellaneous forest species like Thenpavu, Maruthu etc. and the property vested in the State. They also denied the fact that the disputed area is planted with pepper vines, arecanuts, tea or cashew. They further contended that the present application is barred in view of the dismissal of O.A.No.133/77 in respect of the same property for the very same relief. 3. After trial the Forest Tribunal came to the conclusion that the present application is maintainable and that the dismissal of O.A.No.133/77 for default will not bar the present application. The Tribunal further came to the conclusion that the disputed area is part of a plantation and that it was not a private forest as on the appointed day. Consequently the application was allowed and it was declared that it is not a vested forest under the Act. The appeal is by the State and the Custodian of Vested Forests against the above order. 4. Consequently the application was allowed and it was declared that it is not a vested forest under the Act. The appeal is by the State and the Custodian of Vested Forests against the above order. 4. The learned Senior Government Pleader raised two contentions before this Court: i) that the present petition filed by the applicants is barred by virtue of the provisions contained in Order IX R.9 CPC and ii) that the disputed land was a private forest as on the appointed day. 5. We shall first consider the question as to the effect of the dismissal of O.A.No.133/77 for default on the present petition. It is clear that if Order IX R.9 CPC is applicable to the proceedings before the Forest Tribunal, the present petition is barred and the question for consideration is whether that provision is applicable to the said proceedings. S.12 of the Act provides the power of Tribunal and it says that it shall have all the powers of a civil court while trying a suit under the CPC in certain matters. Clauses (a) to (f) deal with the matters for which the power under the CPC can be exercised by the Tribunal. Clause (g) of S.12 further provides that the Forest Tribunal shall have all the powers of a civil court while trying a suit under the C.P.C. on any other matter which may be prescribed. R.11 of the Kerala Private Forests (Tribunal) Rules, 1972 provides as follows: "In all proceedings before the Tribunal, the procedure prescribed as regards applications in the Code of Civil Procedure, 1908, or the rules made thereunder shall, as far as they can be made applicable, be followed, except to the extent otherwise provided in the Act or in these rules." It is clear from R.11 that the Forest Tribunal is empowered to follow the procedure prescribed as regards applications in the Code. S.141 of the CPC deals with the procedure in miscellaneous proceedings in a civil court. S.141 reads as follows:- "141. Miscellaneous proceedings.--The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceeding in any Court of civil jurisdiction." A reading of R.11 makes it clear that an application under S.8 becomes an application under the Code and the Tribunal has to proceed with an application before it as if S.141 CPC is applicable. S.141 C.P.C. makes only the procedural provisions of the Code applicable to miscellaneous proceedings. Learned Government Pleader contended that the bar of a fresh suit contained in Order IX R.9 CPC is a procedural one and not a substantive right and the above provision will apply to the proceedings in question. On the other hand, counsel for the respondents applicants contended that the above provision contained in Order IX R.9 is not procedural but is a substantive right and as such will not come within the purview of S.141 CPC. So the question to be decided is as to whether the bar of suit contained in Order IX R.9 is only a procedural provision or a provision which confers a substantive right on a party. In this connection, learned Government Pleader relied on a Full Bench decision of this court in Bhargavi Amma v. Varkey (1967 KLT 317). The question that arose in that case was as to whether an application under the Kerala Land Reforms Act (Act I of 1964) for determination of fair rent which was dismissed by the Land Tribunal for default of prosecution can be restored by it. In that connection the question that arose before the Full Bench was as to whether Order IX was applicable to a proceeding before the Land Tribunal. The procedure to be followed by the Land Tribunal was provided in R.99 of the Kerala Land Reforms (Tenancy) Rules, 1964 which was identical with R.11 of the Kerala Private Forests (Tribunal) Rules to the following effect: "In all proceedings before the Land Tribunal and the Land Board, the procedure prescribed as regards applications in the Code of Civil Procedure or the rules made thereunder shall, as far as can be made applicable, be followed except to the extent otherwise provided in the Act or in these rules." In construing that rule, their Lordships came to the conclusion that by virtue of R.99, S.141 C.P.C. is made applicable to the proceedings before the Land Tribunal and that the procedure applicable to such applications under the C.P.C. is made applicable to the proceedings before the Land Tribunal also. Their Lordships further held that in view of that an application for determination of fair rent has to be treated as one under the C.P.C. and that the provision of Order IX would apply to it. Their Lordships further held that in view of that an application for determination of fair rent has to be treated as one under the C.P.C. and that the provision of Order IX would apply to it. Based on the dictum of the Full Bench decision it was contended that the whole of Order IX C.P.C. would be applicable to the proceedings before the Forest Tribunal including Order IX R.9. It is to be noted in this connection that the question whether Order IX R.9 would be applicable to a proceeding like this was not as such considered by the Full Bench. There the only question considered was as to whether a Land Tribunal has power to dismiss an application for default or to restore an application dismissed for default. Certainly, those are procedural matters and the provision in Order IX C.P.C. regarding the above is only procedural in nature and does not create any substantive right in any of the parties. That decision has to be understood taking into account the facts of that case and we feel that the decision is not an authority for coming to the conclusion that Order IX R.9 is also applicable to proceedings of this nature. 6. But the specific question as to whether Order IX R.9 C.P.C. will be applicable to such proceedings came up for consideration before a Division Bench of this Court in Achutta Menon v. Narayanan (1974 K.L.T. 485). In that decision, their Lordships considered the Full Bench decision in Bhargavi Amma v. Varkey (1961 K.L.T. 317) and held that it was concerned only with a procedural provision and not with a substantive one. It was further held in that decision that R.99 of the Land Reforms (Tenancy) Rules, 1964 attracts only the procedural provisions of the C.P.C. and not a substantive provision such as the first part of Order IX R.9 which bars the maintainability of an application. This decision is an authority for the proposition that the provision in Order IX R.9 which debars a plaintiff from instituting a suit on the same cause of action is not a procedural right but a substantive right. This decision is an authority for the proposition that the provision in Order IX R.9 which debars a plaintiff from instituting a suit on the same cause of action is not a procedural right but a substantive right. In the light of the above decision we are of the opinion that Order IX R.9 confers a substantive right on a party and such a provision will not come within the purview of S.141 CPC or R.11 of the Kerala Private Forests (Tribunal) Rules. 7. The question as to whether S.141 C.P.C. will take in only the procedural provisions of the Code or the substantive provisions in the Code also came up for consideration before their Lordships of the Supreme Court in Usmanali Khan v. Sagar Mal (AIR 1965 SC 1798). In that case, the question arose as to whether S.86(1) and 87B of the C.P.C. will apply to a proceeding under the Indian Arbitration Act by virtue of S.141 of the Code. In that context, their Lordships observed as follows: "S.86(1) read with S.87B confers upon the Rulers of former Indian States Substantive rights of immunity from suits. S.141 makes applicable to other proceedings only those provisions of the Code which deal with procedure and not those which deal with substantive rights." 8. It is clear from the above decision that a right of immunity from suits is a substantive right. Order IX R.9 also provides for immunity from suits in certain circumstances and it is a substantive right and not a procedural right. As the right conferred under Order IX R.9 CPC is a substantive right, that provision will not be applicable to proceedings to which S.141 CPC or R.11 of the Private Forests (Tribunal) Rules apply. If the first part of the Order IX R.9 is not applicable, the present petition is certainly maintainable, notwithstanding the dismissal of the earlier application for default and we agree with the Forest Tribunal that the present petition is maintainable. 9. The next question is whether the disputed land was a private forest on the appointed day. The State has not disputed the title of the applicants over the land. 9. The next question is whether the disputed land was a private forest on the appointed day. The State has not disputed the title of the applicants over the land. The land involved in the case is not in the Malabar District but situate in the erstwhile Travancore area and private forest under the Act regarding lands in such area is defined in S.2(f)(2) as follows: "(2) In relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas." According to applicants the disputed area is a part of 99.94 acres of plantation which originally belonged to Zacharia and Sons Pvt. Ltd. and included in Ext.A1 sale deed. To the east of the entire property is the reserve forest. A commission was deputed by the Tribunal and he has produced a plan Ext.C1 and Ext.C2 report. The disputed land lies in 4 pockets within 33 odd Acres and in Ext.C1 the 4 pockets are separately marked having an extent of 2.02 acres, 0.45 acres, 18.02 acres and 2.50 Acres respectively. On the eastern boundary of the entire property there are walls, rocks, Fire belt and Kayyalas. The entries Exts.A10 and All in the account books of the company clearly establish that the above were put up by them in 1956 and 1960-61. The earliest document in respect of this property produced in this case is Ext.A1 of the year 1969. The description in the above document shows that in the land there is a factory obviously a Tea Factory. There is no indication in the document that it was a forest at that time. PW.1 (4th applicant) has also given evidence regarding the nature of cultivation in the property. From Ext.C2 report by commissioner it is evident that all the 4 pockets were cultivated with tea, pepper vine, cashew and arecanut trees or with some of them. The age given by the Commissioner for the above plantation also suggest that they were planted before the appointed day i.e. 10-5-1971. The case of the State and Custodian is that the land is a forest containing teak and other forest species like Maruthu, Kadumaram etc. Neither in the report nor in the evidence of Commissioner as PW.2, there is any indication or suggestion that any such trees were in existence on the property on the appointed day. The case of the State and Custodian is that the land is a forest containing teak and other forest species like Maruthu, Kadumaram etc. Neither in the report nor in the evidence of Commissioner as PW.2, there is any indication or suggestion that any such trees were in existence on the property on the appointed day. From the plan it is clear that the land in between the pockets of land in question and reserve forest is cultivated with rubber. From these facts and evidence it is evident that the land in question was part of a plantation before the appointed day or at any rale it was not a forest on the appointed day and we confirm the finding of the Forest Tribunal in this regard. In the result, there is no merit in the appeal and it is accordingly dismissed. No costs.