Judgment

PARIPOORNAN, J.:- The State of Kerala and the Custodian of vested forests are the appellants in this appeal. The respondents in this appeal are the applicants in O. A. 88 of 90 of the Forest Tribunal, Palakkad (hereinafter called the Forest Tribunal). They are members of Nilambur Kovilakam. This appeal is filed against the Judgment dated 5-9-91 passed by the High Court of Kerala in M. F. A. No. 287 of 1991, reversing the order passed by the Forest Tribunal, holding that the applicants before the Forest Tribunal are entitled to retain 60 acres of land in terms of Section 3 (2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, (Act 26 of 1971), hereinafter called the Act.

2. The facts relevant for the decision of this appeal are in a narrow compass. The respondents (hereinafter called the applicants) filed a petition under Section 8 of the Act before the Tribunal for the settlement of the dispute alleged by them. It was claimed that the property shown in the petition, 60 acres of land in R. S. 25/ part and R. S. 31/2A of Chungathara village, Ernad Taluk, did not vest in the Government under Section 3 of the Act. The Forest Tribunal by order dated 27-3-1990 held that the petitioners/ applicants have not proved that they have got exclusive title to the schedule properties, and that there is no acceptable evidence to show that the properties were under the personal cultivation of the petitioners/ applicants on the appointed day to afford relief under Section 3(2) of the Act. It was observed that the scheduled properties taken along with other properties belonging to the petitioners/ applicants would not exceed the ceiling area permissible under the provisions of the Kerala Land Reforms Act, (Act 1 of 1964). The petition was dismissed since the title and possession of the properties as claimed by the petitioners/ applicants were found against.

3. In the appeal filed by the applicants, the High Court of Kerala by its Judgment dated 5-9-91 reversed the order passed by the Forest Tribunal. Relying on Exhibits A1, A2, A6 and A7, the High Court held that the land in dispute (scheduled to the petition) formed part of the private forest held by the applicants and under their personal cultivation at the time of the coming into force of the Vesting Act, namely, on 10-5-1971. The High Court further held that the Thavazhi represented by the applicants as on 10-5-1971 consisted of at least 10 members and the family at the relevant time could in any event retain a minimum of 75 acres. Since the land in dispute is only about 60 acres, it was held that the applicants are entitled to retain the land in dispute in terms of Section 3 (2) of the Vesting Act. The Custodian was directed to identify the property in the presence of the representatives of the applicants and hand over the same to the applicants. Aggrieved by the aforesaid Judgment of the High Court, the State of Kerala and the Custodian have come up in appeal.

4. We heard Mr. M. A. Firoz, counsel for the appellants and also Mr. G. Vishwanatha Iyer, Senior Advocate who appeared for the respondents. Counsel for the appellants urged the following three points. They are :

(1) In adjudicating the appeal filed under Section 8A of the Act, the High Court was in error in reappreciating the evidence and in holding that the land in dispute formed part of the private forest held by the applicants and under their personal cultivation on the date when the Act came into force (10-5-71).

(2) There is no legal material to hold that the applicants family constituted at least 10 members and so could retain the land in dispute, about 60 acres, under Section 3 (2) of the Act.

(3) At any rate, in view of the decision of this Court in T. N. Goda Varman Thirumulpad v. State of Kerala, 1991 Supp. (2) SCC 665, regarding the total extent of land that could be held by the "Nilambur Kovilakam" comprising of 112 members and the total area allocable will not exceed 1680 acres of land under Section 3(3