The burden of proof lies with the claimants to establish that the land in question was not a private forest on the appointed day.

Pareed Pillay, C.J.

The Forest Tribunal, Palakkad allowed O. A.Nos. 37, 38, 39, 40 and 41 of 1982 holding that the respondents could not establish that the lands scheduled in the Original Applications form part of private forests coming within the purview of Kerala Private Forests (Vesting and assignment) Act, 1971 (Act 26 of 1971). The appeal by the State and Custodian of Vested Forests is against the common order- of the Forest Tribunal in the aforesaid original applications which were filed under S.8 of the Act. Altogether 37.81 acres of land has been declared as not vested forests whereby allowing the original applications. Contention of the appellants (respondents in the original applications) is that the properties scheduled in the original applications are private forests to which the provisions of the Madras Preservation of Private Forests Act, 1949 applied immediately prior to the commencement of the Kerala Private Forests (Vesting and assignment) Act, and as such the applicants cannot claim exemption from the vesting under the Act.

2. The question that has been referred to this court is whether it is for the State to prove that a particular land is vested forest or it is for the applicants to prove that the

land in dispute is not a vested forest. Contention of the State is that the properties scheduled in the original applications are forest lands with spontaneous growth and shrub jungle and that they were never brought under cultivation.

3. Learned Government Pleader submitted that respondents could not have proved a negative fact and as the applicants have to establish their case to get exemption from the vesting under the Act, it is upon them to establish their contention that the properties are not private forests. Government Pleader also submitted that the finding of the Tribunal mat the areas involved do not form part of the Kottamala Malavaram having an extent of 93.5 hecters (250 acres ) and that they do not come within the purview of the M.P.P.F. Act is erroneous and unsustainable.

4. Private forest is defined under S.2(f) of the Vesting Act. The definition is as

follows:

"(0 "private forest" means

(1) in relation to the Malabar district referred to in sub-section (2) of S.5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956)

(i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding

(A) lands which are gardens or nilains 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 widi cashew or odier fruit bearing trees or are principally cultivated widi any other agricultural crop and , Q. }(f.b,) 1995 (2)

(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;

(h) any forest not owned by the Government, to which the Madras Preservation of Private Forests 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;"

5. Section 3(1) provides 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 s