JUDGMENT : K.Vinod Chandran, J. Three applications under S.8 of the Kerala Private Forest (Vesting and Assignment) Act, 1979 (for brevity 'the Vesting Act') were allowed by the Tribunal, against which State has filed the appeals from the common order. The applicants are brothers and claimed title to the property through their father, Narayanan. Narayanan executed Ext.A5 in favour of the applicant in O.A.No.71 of 2009, Exts.A6 & A7 to the first applicant in O.A.No.72 of 2009 and Ext.A4 to the applicant in O.A.No.73 of 2009. The applicant in O.A.No.72 of 2009 gifted a portion of the land to his wife, the 2nd applicant. In the year 2009, the forest officials interfered with the possession of the land under the guise that it is vested under the Vesting Act. It was asserted that the land is not a private forest nor part of any area within the Malabar District and governed by the Madras Preservation of Private Forests Act, 1949 (for brevity 'the MPPF Act'). The properties in the three applications lie as a single unit with a total extent of 10.35 Acres, around which there are cashew plantations of the Plantation Corporation. Narayanan, along with his family, was residing in a house within the property and the land was possessed with an intention to cultivate. It was the specific contention that Narayanan converted portions of the property into paddy fields, dug a tank on the south eastern corner and constructed two residential buildings in the property. The applicants also claimed an estate of fruit-bearing trees like coconut, mango, jack fruit and tamarind. Pepper vines and other miscellaneous varieties were also cultivated and this, according to the applicants, was as on 10.05.1971, the appointed day under the Vesting Act. 2. The Divisional Forest Officer, Mannarkad resisted every claim raised by the applicants. The scheduled properties form part of a huge malavaram known as 'Paruthimala', having an extent of 400 hectares, covered under the MPPF Act, which stands vested under the Vesting Act. The notification dated 29.09.1977 was also produced. The title, possession and cultivation in the property was denied by the respondents. 3. There was a joint trial carried on, in which PWs.1 to 5 were examined and Exts.A1 to A12 marked on behalf of the applicants. RW1 was examined for the respondents, who marked Exts.B1 to B5. The three reports along with plans were marked as Exts.C1 to C6. 3. There was a joint trial carried on, in which PWs.1 to 5 were examined and Exts.A1 to A12 marked on behalf of the applicants. RW1 was examined for the respondents, who marked Exts.B1 to B5. The three reports along with plans were marked as Exts.C1 to C6. The Tribunal raised grounds of limitation, nature of the land and the entitlement to declaration of exemption either under S.3(2) or (3) of the Vesting Act. There was nothing produced to evidence a publication of notification, in accordance with the statutory rules. The Tribunal hence found the applications to be filed within the period of limitation. Considering the nature of the land, various decisions were examined and it was held that the scheduled lands lie within the MPPF area and comes within the ambit of the definition of private forests. However, examining the title deeds, it was found that the recitals clearly indicate cultivation having been carried out in 1960 after cutting the forest trees and cultivating the land with paddy. The disputed property was not claimed to be excluded under Clauses (A) to (D) of S.2(f)(1)(i) of the Vesting Act. There was also no valid claim of an intention to cultivate, especially since as on the appointed day, the father of the applicants did not hold the property on the strength of a registered deed. As for the claim under S.3(2), the definition of owner was noticed to find that, even if the land is held rightfully, the same could result in a claim for exemption and in the present case, the applicants had produced land tax receipts clearly indicating their possession. The testimony of the applicants also spoke of the possession, which was traced to their father. As far as the personal cultivation is concerned, the recitals in the title deeds were emphasized. The commission report was also noticed to find ample evidence of cultivation coupled with the testimony of PWs.1 to 3, who are the applicants and two independent witnesses, who knew the property for more than 50 years. The land was found to be under the personal cultivation of Narayanan as on the appointed day. The applicants were also found to be not holding properties in excess of the ceiling limit under S.82 of the Kerala Land Reforms Act, which was not seriously contested by the respondents. The land was found to be under the personal cultivation of Narayanan as on the appointed day. The applicants were also found to be not holding properties in excess of the ceiling limit under S.82 of the Kerala Land Reforms Act, which was not seriously contested by the respondents. It was on the above reasoning that the declaration was made by the Tribunal. 4. Sri.Nagaraj Narayanan, Special Government Pleader [Forests], pointed out that the claim of title itself is specious and the fact that the land is surrounded by the estate of the Plantation Corporation leads to an inference of encroachment. The title deed relied on is of the year 1982 and the recitals therein made after the date of vesting areinconsequential. The commission report also does not enable the finding of any cultivation as on the appointed day. 5. Sri.A.R.Gangadas, learned Counsel appearing for the appellant, points out that even the local inspection report of the Tribunal brings forth the age of trees to be between 40 to 60 years. The land has been held for long by the father of the applicants and there are pukka cultivations in the property as of now. The respondent’s Counsel laid emphasis on the local inspection report of the Tribunal, which is part of the records. 6. Admittedly, there is no evidence led by the respondents to prove that the property does not come within the MPPF Act. State of Kerala v. Kunhiraman [ 1990 (1) KLT 382 ] and State of Kerala v. Chandralekha [ 1995 (2) KLT 152 (FB)] clearly held that it is the bounden duty of the applicant, who asserts the non-applicability of the MPPF Act to prove the same. There is absolutely no evidence led to that effect, especially in the context of the respondents having asserted in their Counter Affidavit that the property is part of a mountain range having a total of 400 hectares. The Tribunal has also relied on a Full Bench decision of this Court in State of Kerala v. Moosa Haji [ 1984 KLT 494 (FB)] and two decisions of the Hon'ble Supreme Court in Gwalior Rayons Silk Mfg. The Tribunal has also relied on a Full Bench decision of this Court in State of Kerala v. Moosa Haji [ 1984 KLT 494 (FB)] and two decisions of the Hon'ble Supreme Court in Gwalior Rayons Silk Mfg. (Wvg.) Co.Ltd. v. The Custodian of Vested Forests, Palakkad [AIR 1990 SC 747] and Bhavani Tea & Produce Co.Ltd. v. State of Kerala [ (1991) 1 KLT 666 (SC)] to understand the definition of private forest under the Vesting Act, on which the MPPF Act is applicable. Every private forest having a contiguous area of 100 acres within the Malabar District, on which there was no cultivation as on 14.12.1949 is covered under the MPPF Act as per S.1(2)(i) of that Act. The aforecited decisions categorically held that any conversion carried out after 14.12.1949, to bring in cultivation or result in denudation of forest, would not absolve the property from coverage under the MPPF Act. Hence, as on the appointed day of 10.05.1971, the scheduled land is a private forest. 7. We have considered the testimonies and the documents produced. The title deeds produced are of the year 1982 and there is nothing to indicate that Narayanan was holding the property as on the appointed day validly and with a rightful claim to hold so. The receipts of land tax remittance are after the appointed day and even long after the settlement deeds produced. The valid possession hence can be inferred only after the settlement deeds. Insofar as the cultivation carried on, the applicants have a mixed claim of paddy cultivation and fruit-bearing trees; both of which are not admittedly predominant in the land. The claim for paddy cultivation comes from the recital in the title deeds, which was relied on by the Tribunal. The self-serving recitals in the title deeds, that too of the year 1982,according to us, cannot be given any significance to determine the cultivation as on the appointed day. The recitals, which are extracted in the vernacular in the order impugned, is also to the effect that the property, which was continuously in his possession as per an oral agreement, after being handed over; forest was cleared of some areas to commence paddy cultivation and the balance property was used for other purposes. It has also been stated that revenue and survey charges were being paid. It has also been stated that revenue and survey charges were being paid. As we noticed, there is absolutely no evidence of payment of land tax prior to the settlement deeds. There are also no survey plans produced to which end would have been the payment of survey charges. There is also nothing to indicate that the paddy cultivation commenced in the year 1960 was continued till the appointed day under the Vesting Act. 8. We have looked at the commission reports filed with respect to the three separately scheduled properties in the three O.As. Ext.C1 is the commission report in O.A.No.71 of 2009. The lie of the land is said to be steep slope and there are a number of fruit-bearing trees existing in the property along with a thatched shed. The trees in the property have been specified in the report. The fruit-bearing trees indicated in the property are mango, cashew, jack fruit, coconut etc., but the maximum age indicated is 32 years, that to of a single jack fruit tree. The other trees are said to be aged between 12 to 22 years. Obviously, these trees were planted after the appointed day, since the Commissioner had inspected the property in 2011 almost 40 years after the appointed day. The other trees noticed in the properties are forest species trees having almost the same age. Ext.C3 is the report in O.A.No.72 of 2009, which also indicates trees existing in the property of a similar nature. The eldest tree noticed is one malaveppu, a forest species tree of 35 years. The fruit-bearing trees and the pepper vines are aged between 12 to 26 years, again planted after the appointed day. Ext.C5 report in O.A.No.73 of 2009 also is of a similar nature, wherein the maximum age noticed is 30 years of two forest species trees. The commission report hence does not indicate any cultivation, which can be considered as predominant in the property having an extent of more than 10 acres even when the inspection was carried out. The trees noticed, which were both forest species and planted; were predominantly those which were sprouted or planted after the appointed day. As per the recital of the year 1982, there was paddy cultivation commenced in 1960, of which there is no remnant found in the property. The trees noticed, which were both forest species and planted; were predominantly those which were sprouted or planted after the appointed day. As per the recital of the year 1982, there was paddy cultivation commenced in 1960, of which there is no remnant found in the property. The property is bounded on all sides with plantations, which are in the possession of the Plantation Corporation, a Government owned Company. But that does not make the scheduled land a plantation as on 10.05.1971. All in all, the scheduled lands were lands covered under the MPPF Act and there is no cultivation discernible as on the appointed day under the Vesting Act. 9. The learned Counsel for the applicant had emphasized the inspection report of the Tribunal. The Tribunal had carried out a personal inspection, which is permitted under the Vesting Act by virtue of S.12(e) of the Vesting Act, which is a power akin to Order XVIII Rule 18 of the Code of Civil Procedure [CPC]. A Division Bench, in Kunhiraman [supra], accepted the power of the Tribunal to inspect any property and to make a memorandum of the relevant facts observed on such inspection, which form part of the record of the case. However, it was categorically held that the purpose of local inspection is to enable the Court to better understand the evidence and it is not a measure to create or collect evidence. It was categorically declared that the observations made during the local inspection cannot be used for any purpose, since the inspection is not intended to substitute the enquiry envisaged in law. The Presiding Officer cannot substitute his views, as available from the local inspection report, for the evidence led in the case. To collect evidence, a party must necessarily avail of the opportunity provided in Order XXVI Rule 10 CPC to bring on record the facts discernible on a physical inspection by taking out a commission; which Commissioner can also be examined as a witness by the person who has availed such measure and the person who opposes can also cross-examine him. Such an opportunity would not be available insofar as a local inspection report is concerned, since it is a mere record of the impressions and views of the Presiding Officer. 10. Such an opportunity would not be available insofar as a local inspection report is concerned, since it is a mere record of the impressions and views of the Presiding Officer. 10. State of Kerala v. Nanu [ 1991 (2) KLT 251 ] raised an apprehension as to the real effect and impact of such a local inspection report, which reveals facts contrary to the evidence led. A situation was contemplated, where a witness deposes before Court that there are no trees existing in the property, which, on a local inspection, was found to be a blatant lie. The learned Judges raised a question as to whether on such an eventuality, on a mere technicality the actual facts found on local inspection should be ignored. However, the learned Judges refused to differ from Kunhiraman [supra], especially noticing that there should be a statutory intervention to clarify the effect and impact of such a local inspection report. With due respect, we bow to the dictum in Kunhiraman [supra] that on such an eventuality, it may be appropriate for the party, who resists the claim of absence of trees, to take out a commission, who could through the report filed after physical inspection, put forth the real facts before Court, as evidence. The inspection report at best, offers reassurance to the Presiding Officer. 11. Despite this, on the persuasion of the learned Counsel for the applicant, we looked into the report. The report speaks of trees having age between 30 to 60 years, but all of them are forest species trees. As far as the fruit-bearing trees, their age noted in the local inspection report cannot be related back to the appointed day. There are large number of rubber trees, which obviously are those having age only of 10 to 20 years. PW1 in his testimony in the year 2013 also speaks of rubber having been cultivated 35 years before; which does not take us to the appointed day. He also speaks of rubber having been planted by him and his father having not made such cultivation, contrary to his earlier testimony. PW1 speaks of paddy, jack fruit and mango standing on the field, separately and in isolation, which is not indicated in the commission report. The testimonies of PWs.2 & 3 also do not offer any credence as to the cultivation carried on by the father as on the appointed day. PW1 speaks of paddy, jack fruit and mango standing on the field, separately and in isolation, which is not indicated in the commission report. The testimonies of PWs.2 & 3 also do not offer any credence as to the cultivation carried on by the father as on the appointed day. We are unable to uphold the order impugned, which is based on irrelevant considerations. We hence allow the appeal setting aside the common order of the Tribunal and rejecting the applications filed before the Tribunal under Section 8 of the Vesting Act.