The main legal point established in the judgment is that the evidence presented must justify the exclusion of land from the definition of private forest under the Act, and failure to do so will result in upholding the vesting of the land in the State.

1. This an application under S.8C of the Kerala Private Forests (Vesting and Assignment) Act, 26 of 1971, as amended by Act 36 of 1986, by which the State and the Custodian of Vested Forests seek a review of the judgment of this court in M. F. A. No 193 of 1979.

2. The respondent herein had filed an application under S.8 of Act 26 of 1971 on 31-5-1976 claiming that 43 acres of unsurveyed land in Agali Village, Mannarghat Taluk was cocoa plantation and was therefore not private forests as defined in Act 26 of 1971.

3. The applicant-respondent had not produced any document along with the application. Eventhough there was a reference to a registered partition deed 3301/68/SRO Mannarght and that "clear-felling permit and other documents will be filed later", those documents were filed only on 7-1-1978 (marked as Exts. A1 to A4) and on 6-9-1978 (marked as Exts. A5 to A9). In their written objections, the State and the Custodian of Vested Forests contended that the disputed areas were part of unsurveyed forest lands in Vettilachola malavaram, that they were never cultivated and that there was no cocoa plantation in that area as on 10-5-1971. The applicant examined his son as PW-1, a Deputy Tahsildar as PW-2 and a retired Registration Official as PW-3. Ext. A1 registration copy of the partition deed, Ext. A2 clear-felling permit dated 20-8-1970, Ext. A3 registration certificate issued by the Divisional Forest Officer, Ext. A4 letter of the Divisional Forest Officer dated 26-9-1970, Exts. A5 to A7 bills for 2000 plants each dated 15-9-1970, 20-9-1970 and 28-9-1970 issued by a private nursery in Palai, Ext. AB report of PW-3 dated 5-2-1972 and Ext. A9 report sent by PW-2 to the Chairman, Taluk Land Board, Mannarghat were marked on the side of the applicant. RW-1 the Range Officer concerned was examined on the side of the respondents. The case of the applicant was that the disputed property formed part of item No. 3 in B schedule of Ext. A1 registered partition-deed, that Ext. A2 clear-felling permit was issued in respect of 100 acres out of that property, that the entire area was clear-felled within a couple of months after Ext. A2 permit and that 50 acres were planted with rubber, 7 acres with pepper and the remaining 43 acres with cocoa in September-October, 1970.50 acres of young rubber and 7 acres of pepper were excluded from the vesting provisions, remaining 43 acres planted with cocoa was wrongly demarcated as vested forests, and therefore that was liable for exclusion. Ext. A3 and A4 were produced for evidencing removal of timber consequent on clear-felling and those operations were concluded by 31-5-1971. Exts. A5 to A7 were produced to show that 6000 cocoa plants were planted in the disputed area in September-October, 1970. Ext. A8 was produced to show that at the time of the inspection conducted by the third respondent, an authorised valuer under the Estate Duty Act, the disputed area was a young cocoa plantation. Ext. A9 was produced to show that at the time of inspection of PW-2 for purposes of ceiling provisions under the Kerala Land Reforms Act, there were cocoa plants which were aged about 4-5 years in the disputed area. Respondents asserted that there were forest trees in the disputed property and that there were only a few cocoa and coffee plants scattered all over the 93 acres of land. They also maintain that the few cocoa plants in an area where trees were available in profusion could not make it an area principally planted with cocoa.

4. The Forest Tribunal, Manjeri in its order dated 21-2-1979 held that the provisions of the erstwhile M. P. P. F. Act were applicable to the petition scheduled property immediately prior to 10-5-1971. This was done over-ruling the contentions of the applicant. The tribunal, however, held that the evidence of PWs. 2 and 3 and the reports Ext. A8 and A9 indicated that there were cocoa plants in the disputed property on 15-2-1972 at the time of inspection of PW-3 and there were