Judgment : A. Hariprasad, J. 1. Petitioners in O.A.No.16 of 2003 before the Forest Tribunal, Kozhikode (hereinafter referred to as "the Tribunal"), aggrieved by the dismissal of their application filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as "the Vesting Act") have come up in appeal challenging the order of the Tribunal. 2. Briefly put, the case of the appellants is as follows: Petition schedule property along with other items originally belonged in jenm to Varukkumanchery Mana. It was outstanding in kanom right to the family of one Raghavan. There was a partition in his family by document No.645 of 1925 of SRO, Parali. In that partition, it was allotted to the share of Raghavan. On his death, it devolved on his daughter Suseela. Kanom right was renewed as per Ext.A1 document of the year 1937 in the name of Suseela. At that time Suseela was a minor. On attaining majority, Suseela assigned the property as per Ext.A2 document of the year 1965 in favour of one Sainabha Umma. Later, she sold the property to the appellants as per document No.1276 of 1975 of SRO, Parali (Ext.A3). Appellants are in possession and enjoyment of the property eversince the purchase. Officials of the Forest Department sought to disturb their possession on the pretext that the area is a private forest vested in the Government. Therefore, they approached the Tribunal for a declaration that the property is not a private forest covered under the provisions of the Madras Preservation of Private Forests Act, 1949 (hereinafter referred to as "the MPPF Act") or under the provisions of the Vesting Act. It is a parcel of dry land. The area had no characteristics of a forest at any point of time. Sainabha Umma purchased the property with an intention to cultivate and she actually cultivated thereon. Entire area was brought under a single fencing and it was put to use by regular cultivation, except in the rocky patches on the northern side. Fruit bearing trees were also planted by Sainabha Umma, which were cut and removed by the appellants for developing the area into a rubber plantation. The entire holding, including the disputed property had been regularly cultivated before and as on 10.05.1971, the appointed day of the Vesting Act. Fruit bearing trees were also planted by Sainabha Umma, which were cut and removed by the appellants for developing the area into a rubber plantation. The entire holding, including the disputed property had been regularly cultivated before and as on 10.05.1971, the appointed day of the Vesting Act. Sainabha Umma and family as on 01.01.1970 did not possess lands in excess of the ceiling area prescribed under the Kerala Land Reforms Act (hereinafter referred to as "KLR Act"). She was entitled to the benefit of Sections 3(2) and 3(3) of the Vesting Act, in case the property is found to be a private forest. 3. Respondents filed a counter statement with the following contentions: The disputed property is part of vested forests known as Palakkuzhikkad valarthukkad VFC item No.128, Bit No.I & II, which is lying contiguously and having a total extent of more than 52 hectars. As per the provisions of the Vesting Act, all private forests are deemed to be vested in the Government as on 10.05.1971. Ownership and possession of all private forests in the State of Kerala shall, by virtue of the Vesting Act, stand transferred to and vested with the Government free from all encumbrances and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. The properties were covered by the MPPF Act. The disputed property is a part of Palakuzhikkad valarthukad malavaram, which was notified as per notification No.1383 of 1979 dated 10.10.1979 by the Custodian of Vested Forests, Kozhikode. Copy of the notification has been produced. The disputed property along with other properties were demarcated and survey sketch had been prepared. Copy of the survey sketch, in which the disputed property is also included, has been produced. Respondents contended that the claim made by the appellants is hopelessly barred by limitation. The cause of action alleged in the application is denied by the respondents. According to the respondents, it is a story developed to escape from the law of limitation. Four boundaries in the petitition schedule property are as shown below: North : Involved the area in O.A. No.205 of 80 filed by Ramadevi Teacher. The cause of action alleged in the application is denied by the respondents. According to the respondents, it is a story developed to escape from the law of limitation. Four boundaries in the petitition schedule property are as shown below: North : Involved the area in O.A. No.205 of 80 filed by Ramadevi Teacher. East : Vested Forest West : Private Land (Coimbatore Arya vaidya Pharmacy) South : Private Land (owned by Ramachandran) It is also contended that nature of tree growth in the property will show that it is part of a private forest: 4. Appellants had not cultivated the area as on 10.05.1071 or prior to that date. The entire area is full of under growth consisting of grass and eupatorium. The respondents therefore prayed for dismissal of the application. 5. Heard the learned counsel Shri C.Vinod Kumar for the appellants and Shri Madhavan Kutty, learned Special Government Pleader. 6. Tribunal found that the plea of limitation raised by the respondents is unsustainable. There is no challenge against that finding of the Tribunal. Hence that issue has become final. 7. Learned Special Government Pleader submitted that the property in dispute is part of a private forest coming within the MPPF Act. Sub-section (2) of Section 1 of the MPPF Act reads as follows: "(2) It applies - (i) to private forests in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres Explanation:- Nothing in this clause shall be deemed to apply to any land which was brought under fugitive or other cultivation prior to the 14th December, 1949, by an owner or any person claiming under him; (ii) to forests situated in estates as defined in the Madras Estates Land Act, 1908 (Madras Act 1 of 1908) in the Malabar District. (iii) to private forests situated in other areas in the Malabar District and having a contiguous area exceeding 100 acres which may be declared by the State Government to be forests for the purposes of this Act by notification in the Kerala Government gazette, but does not apply to reserved forests constituted under the Madras Forest Act, 1882 (Madras Act V of 1882) and lands at the disposal of the Government as defined in that Act. Explanation:- A private forest exceeding 100 acres in extent shall not cease to be such by reason only of the fact that, in a portion thereof, trees or shrubs are felled with or without the permission of the District Collector, or lands are cultivated, or rocks, roads, tanks, rivers or the like exist; nor shall the area of such forest cease to be contiguous by reason only of the existence of all or any of the aforesaid circumstances." 8. It is interesting to note that there is no definition of "forest" in the Vesting Act. The term "private forest" has been defined in Section 2(f) of the Vesting Act as stated hereunder: "(f) "private forest" means- (1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the States Reorganization Act, 1956 (Central Act 37 of 1956) (i) any land to which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day, excluding -(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964) (B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. Explanation:- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; (C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop, and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of such buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forest Act, 1949 did not apply, including waste lands which are enclaves within wooded areas. (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. Explanation:- For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs." 9. (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. Explanation:- For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs." 9. It is the common case of the parties that the land in dispute is situate in an area which was part of erstwhile Malabar District. Learned Special Government Pleader contended that the land in question is part of Palakkuzhikkad Valarthukad -VFC item No.128, Bit No.I & II. It lies contiguously and having a total extent of more than 52 hectars. Indisputably the extent will be more than 100 acres. It is the contention of the respondents that the disputed property is part of a malavaram coming under the MPPF Act. The Custodian of Vested Forests, Kozhikode issued a notification as per the Vesting Act on 10.10.1979 (notification No.1383 of 1979). Neither the appellants nor their assignors had any right over the property as the right, title and interest over the property had been vested in the State. 10. Appellants have a specific contention based on Exts.A1 to A3 that the disputed property had been dealt with as "paramba" and never treated as a "private forest". It is specifically contended by the appellants that the property originally belonged to Varukkumancherry Mana. It was demised on kanom right to the family of Raghavan. A partition took place in his family in the year, 1925 wherein the disputed property was set apart to the share of deceased Raghavan. On his death, it devolved on his daughter Suseela. Ext.A1 is the 'kanadharam' executed in favour of Suseela. This document speaks about the terms of renewal of kanom right in her name. Appellants would contend that atleast from 1925 onwards, this property was not treated as a forest or a private forest by the respective title holders. It is also the case of the appellants that after the purchase of property by Sainabha Umma in the year 1965, she planted fruit bearing trees with intention to cultivate. Later, the appellants cut and removed those trees and planted rubber trees. 11. It is also the case of the appellants that after the purchase of property by Sainabha Umma in the year 1965, she planted fruit bearing trees with intention to cultivate. Later, the appellants cut and removed those trees and planted rubber trees. 11. Learned Special Government Pleader submitted that the question to be decided is whether the disputed property is part of a private forest coming under the MPPF Act as on 10.05.1971, on which day the Vesting Act came into force. It is also contended that once the MPPF Act was applicable to an area in 1949, nothing done by the owners or others was capable of putting an end to such applicability to that area. In order to substantiate this contention, a Larger Bench decision of this Court in State of Kerala v. Moosa Haji ( 1984 KLT 494 (FB)) was pressed into service. Law enunciated in paragraph 7 is the following: "We are unable to accept this contention. S.2 (f)(1)of the Vesting Act defines 'private forest' as any land, whatever be its nature or character. If the M.P.P.F.Act was applicable to the land in 1949, and if it continued to apply to it up to 10-5-1971, that and will be a private forest for the purposes of the Vesting Act. The question is not whether there was a forest in existence in 1971; it is whether there was any land in 1971 to which the M.P.P.F. Act was applicable in 1949 and continued to be under its coverage till 1971. .........." 12. The principle laid down in Moosa Haji's case (supra) was considered by the Supreme Court in Bhavani Tea & Produce Co. Ltd. v. State of Kerala ( 1991 (1) KLT 666 ) and affirmed the view expressed by this Court in that case. 13. Learned Special Government Pleader contended that a person raising a claim under Section 8 of the Vesting Act has to prove that the property in dispute is not a private forest or that the private forest has not vested in the Government. In support of this proposition, a decision of the Full Bench of this Court in State of Kerala v. Chandralekha ( 1995 (2) KLT 152 ) is relied on. The relevant portion of the decision reads as follows: "........... In support of this proposition, a decision of the Full Bench of this Court in State of Kerala v. Chandralekha ( 1995 (2) KLT 152 ) is relied on. The relevant portion of the decision reads as follows: "........... Section 8 provides that where any dispute arises as to whether any land is private forest or not or any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may, within such period as may be prescribed apply to the Tribunal for decision of the dispute. Section 8 makes the position clear that it is for the person who claims that the land is not a private forest or that the private forest has not vested in the Government to apply before the Tribunal for decision of the dispute. From a reading of the Section it is apparent that the person who prefers a claim before the Tribunal that the property is not private forest or that it has not vested under the Vesting Act has the burden to establish his case. As he alone can produce necessary evidence in support of his case it can never be held that the onus of proof is on the State to prove that the land in question is a private forest. As the owner of the land has to prefer his claim before the Tribunal that the land is not private forest or that the private forest has not vested in the Government, he has necessarily to establish that claim as he alone is in possession of data and materials to prove his case. The burden is squarely upon him to substantiate his claim. ................" 14. So, the law relating to a claim under Section 8 of the Vesting Act can be succinctly stated as follows: To make a claim under Section 8 of the Vesting Act, there must be a dispute arising as to whether (i) any land is a private forest or not, or (ii) any private forest or portion thereof has vested in Government or not. If a person rakes up a claim that the land in question is not a private forest or even if it is a private forest, it is not vested in the Government, then it is for him to establish the contention and burden of proving his contention is squarely upon him. Vesting of a private forest under Section 3(1) of the Vesting Act takes place by operation of law on 10th May, 1971. No provision in the Act postpones the vesting to any day subsequent to the appointed day. Issuance of notification is something which must follow ordinarily the demarcation of boundaries required under Section 6 of the Vesting Act. Vesting is not postponed till the Custodian of Vested Forests demarcates the boundaries and issues notification. (see Ranga Sesha Hilla (P) Ltd. v. State of Kerala ( 1991 (2) KLT 49 ) and Bhargavi Amma v. State of Kerala ( 1997 (2) KLT 513 (FB)). Section 2(f)(1)(i) of the Vesting Act defines "private forest" as any land to which MPPF Act applied immediately before 10.05.1971 irrespective of its nature or character. The only question is whether the MPPF Act was applicable to the said land in 1949. If that be so and if it continued to apply to the land upto 10.05.1971, that land will be a private forest for the purpose of the Vesting Act. The fact whether there was a forest in existence as on 10.05.1971 is not at all a material aspect. Alteration of nature or character of the land before 10.05.1971 will have no effect on the application of the Vesting Act in respect of that land. 15. In this back drop, we shall examine the evidence adduced by the appellants to substantiate their contentions. Ext.A1 is of the year 1937. It is a document evidencing renewal of kanom right from Varukkumanchery Mana in favour of one Suseela. Recitals in the body of Ext.A1 would show that the property was demised in kanom right to the family of one Raghavan, father of the executee in Ext.A1. In the family partition, the property scheduled in Ext.A1 was set apart to Raghavan. After apportioning the kanom, the property was demised in favour of Suseela as per Ext.A1. Disputed property is part of item No.4 in Ext.A1. In other words, item No.4 in Ext.A1 is the larger property, of which the disputed property is a part. In the family partition, the property scheduled in Ext.A1 was set apart to Raghavan. After apportioning the kanom, the property was demised in favour of Suseela as per Ext.A1. Disputed property is part of item No.4 in Ext.A1. In other words, item No.4 in Ext.A1 is the larger property, of which the disputed property is a part. Going by the boundaries in the schedule to Ext.A1, it can be seen that on the south of the total property, there was a public road in existence. 16. Ext.A2 assignment deed by Suseela to Sainabha Umma was made in the year, 1965. Title traced in Ext.A2 is the same as in Ext.A1. The descriptions in the schedule to Ext.A2 would show that only a portion of item No.4 in Ext.A1 was assigned by Suseela to Sainabha Umma. Southern boundary of the property in Ext.A2 is described as rocky area, belonging to the State. If we plot the property described in Ext.A2 in the larger property (item No.4) in Ext.A1, it can be seen that Ext.A2 property comes on the north- eastern side of item No.4 in Ext.A1. Schedule to Ext.A2 shows that the property on the western boundary had been sold out by Suseela even prior to Ext.A2. If we consider the description of the property shown by the appellants in the application schedule, we can see that the southern boundary is appellants' another property. 17. Ext.A3 title deed of the appellants, executed by Sainabha Umma, is only part of a document or in other words, the entire document has not been produced. It does not contain any schedule. Therefore, probative value cannot be attached to Ext.A3. Recitals in Ext.A3 will show that the entire property in Ext.A2 had been assigned by Sainabha Umma to the appellants. However, it is not clear from the evidence adduced as to why the complete document was not produced. 18. Admittedly original survey number of the property is 250 A/1. According to the appellants, corresponding new survey number is 567/2 & 3. None of the parties derive any tangible benefit from the Commissioner's report and plan as the Commissioner did not venture to identify the property with reference to the documents and survey demarcations. He has simply attached a survey plan with his report, that too with insufficient details. According to the appellants, corresponding new survey number is 567/2 & 3. None of the parties derive any tangible benefit from the Commissioner's report and plan as the Commissioner did not venture to identify the property with reference to the documents and survey demarcations. He has simply attached a survey plan with his report, that too with insufficient details. Only point discernible from Exts.C1 and C2 (Commissioner's report and plan) is that the disputed property was lying as a vacant land without any tree growth in the property. Going by the principle enunciated in Moosa Haji's case (supra) the crucial question is not whether there was a forest in existence in 1971, but it is whether there was any land in 1971 to which MPPF Act was applicable and continued to be under its coverage till 1971. Therefore, existence or non-existence of trees in the property on the appointed date of Vesting Act is immaterial. Absence of tree growth will not improve the case of the appellants. But on the other hand, absence of trees may weaken the case of the appellants under Sections 3(2) and 3(3) of the Vesting Act. Documents produced show the description of the property as "paramba". Learned counsel for the appellants, relying on an unreported decision of this Court in M.F.A. No.169 of 1984, contended that another property in the area was found to be not vested under the provisions of the Vesting Act, because the document of the year 1932 described the property as a "paramba". We have carefully gone through the decision in M.F.A.No.169 of 1984. This Court accepted the finding of the Tribunal that the property involved therein was not a private forest not merely on the description of "paramba", but other evidence available was also considered for arriving at that conclusion. Hence, decision in that case cannot be taken as a sheet anchor to establish the case of the appellants. 19. Ext.A1 document itself would show that the holder of kanom right from the Mana had given no right to cut and remove valuable trees like teak, jack tree and rose wood. For cutting and removing such trees, the kanom right holder had to get the permission of the kanomdhar. 19. Ext.A1 document itself would show that the holder of kanom right from the Mana had given no right to cut and remove valuable trees like teak, jack tree and rose wood. For cutting and removing such trees, the kanom right holder had to get the permission of the kanomdhar. These recitals in Ext.A1 prove two facts; firstly, the property was covered with tree growth at that time and secondly, the kanom right holder had no unbridled right to enjoy the property as such. All the subsequent transactions are subject to these restrictions. Therefore, the contention of the appellants that Sainabha Umma purchased the property with an intention to cultivate cannot stand a scrutiny . 20. The oral evidence adduced in this case is also totally insufficient to substantiate the case of the appellants. PW 1 in cross examination candidly admitted that the disputed property is a rocky area. On the northern side of the disputed property, the property belonging to Ramadevi is situated, which was notified as vested forest. It is his case that after a long legal battle, she got the property back. PW1 admitted that he has not heard of Palakkuzhikkad malavaram. It is his admission that appellants got assignment of 5 acres and 38 cents and the property was not arable. He was unaware of a notification issued with respect to this property under the Vesting Act. Evidence of PW 1 remains totally undependable and insufficient. No reason was stated by the appellants for non-examination of Sainabha Umma. The testimony of RW 1 remains credible in spite of cross examination. Totality of evidence in this case would take us to the conclusion that the Tribunal is justified in finding that the property involved in the dispute is a private forest coming within the ambit of MPPF Act and therefore, on the appointed day, it vested with the Government. 21. Next point to be considered is regarding the availability of benefit of Sections 3(2) and 3(3) of the Vesting Act to the appellants. 21. Next point to be considered is regarding the availability of benefit of Sections 3(2) and 3(3) of the Vesting Act to the appellants. Section 3 (1) of the Vesting Act says that notwithstanding anything contained in any other law for the time being in force or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day (10.05.1971), the ownership and possession of all private forests in the State of Kerala shall stand transferred to and vested in the Government free from all encumbrances. Further it says that the right, title and interest of the owner or any other person in any private forest shall stand extinguished. Sub-section (2) of Section 3 of the Vesting Act takes out certain properties from the scope of vesting under Section 3(1) of the Vesting Act. The private forest held by an owner under his personal cultivation, which is within the ceiling limit applicable to him under the KLR Act, or any building or structure standing thereon or appurtenant thereto shall not vest in the Government. Explanation to this Sub-section makes it clear that "cultivation" includes cultivation of trees or plants of any species. None of the evidence produced by the appellants would show that before the appointed day, then owners of the property had ever cultivated any trees or plants to claim exemption from vesting under Section 3(1) of the Vesting Act. Oral evidence adduced by PW1 and the Commissioner's report would go contrary to the contention of the appellants that Sainabha Umma, after she purchased the property in the year 1965, cultivated the property. In this context, non- examination of Sainabha Umma becomes very material. Therefore, Tribunal rightly found that the appellants are not entitled to get benefit of Section 3(2) of the Vesting Act. 22. Section 3(3) of the Vesting Act shall apply in respect of so much extent of private forest held by the owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, provided the land is included in an area not exceeding the ceiling limit applicable under the provisions of the KLR Act. In this case, the title deed of the appellants is of the year 1975. In this case, the title deed of the appellants is of the year 1975. Sainabha Umma, after purchasing the property as per Ext.A2 in the year 1965, did not make any cultivation as per the evidence available in the records. There is no evidence available in the records to show that Sainabha Umma had ever intended to cultivate the disputed land. Here also the non-examination of Sainabha Umma is fatal to the case of the appellants; especially when we see the recitals in the Commissioner's report that the disputed property lies as a barren land. 23. Supreme Court in Joseph v. State of Kerala (2007 (3) KLT 144), while interpreting Section 3(3) of the Vesting Act held that the words "intended to cultivate" clearly signify that on the date of vesting of the land in question, though had not actually been cultivated in its entirety, but if the purchaser had the intention of doing so, then the benefit of Section 3(3) of the Vesting Act should be extended to him. Further it is held that such intention on the part of the purchaser can be gathered from his conduct in regard to the development of land for making it fit for cultivation preceding to and subsequent to the date of vesting. In the case in our hand, there is no evidence to find that the owner of the property, as on 10.05.1971, had cultivated the land or she intended to cultivate either before or even after the appointed day. Therefore, the principle in this decision also will not help the appellants. 24. Learned counsel for the appellants relied on a Full Bench decision of this Court in Parameswara Sastringal K.S. v. State of Kerala and others (2008 (2) KHC 434). The law laid down therein is the following: "........ If it can be proved that the land is not a private forest on the appointed day or the then owner is entitled to claim the benefit of Section 3(2) or 3(3) of the Act, there is no prohibition on the owner to assign his right to a third party and his assignee can also approach the Forest Tribunal for a declaration that the land is not vested under Section 3(1) of the Act on the appointed day. In other words, an assignee also can claim and prove that his predecessor-in-interest who was in possession of the land on the appointed day was entitled to get exemption under Section 3(2) or 3 (3) of the Act. The assignee will step into the shoes of the assignor in that event. The question would be what was the nature of the land and also whether the land had got vested in the Government as on the appointed day and not on any other subsequent day. .............." 25. Learned Special Government Pleader contended that the State has taken up this matter before the Supreme Court and Special Leave Petition has been allowed by the Supreme Court. However, he fairly conceded that there is no order passed by the Supreme Court either staying or suspending the operation of the judgment. Notwithstanding that we find from the facts and circumstances established in this case that the appellants failed to prove that the owners of the property cultivated the land before the appointed day, i.e., 10.05.1971 or they ever intended to cultivate the same. Since the basic ingredients in Sub-sections (2) and (3) of Section 3 of the Vesting Act have not been established by the appellants, we do not embark on the question whether the appellants are entitled to claim exemption under Section 3(2) or 3(3) of the Vesting Act on the basis that on the appointed day their assignor was entitled to claim exemption. 26. Considering the entire facts and circumstances, we find that the appellants failed to establish any legal reason to interfere with the finding of the Tribunal. The appeal is bereft of merits and it is liable to be dismissed. Hence we do so. In the result, (i) Appeal is dismissed. (ii) Parties are directed to suffer their respective costs.