The main legal point established in the judgment is the requirement to affirmatively prove the conditions of the provisions under S.3(2) and S.3(3) of Act 26 of 1971, and the grounds for review of a prior judgment.

1. The petition is filed to review the judgment of this Court dated 13-1-1982 in M.F.A. 449 of 1979. The Forest Tribunal Calicut dismissed O.A. 24 of 1977. Against the order of the Tribunal the applicant filed M.F.A. 449 of 1979. This Court set aside the order of the Forest Tribunal and allowed the applicant's claim under S.3(2) of Act 26 of 1971.

2. The applicant's case is that he was in possession and cultivation of about 150 acres of land in Poyyatnala known as Paoniyamala as a sublessee of Kunhikrishnan Nambiar under agreement dated 16-3-1971, that the property belonged to Kottiyoor Devaswom and Kunhikrishnan Nambiar was the lessee under the Devaswom, that be purchased the rights of Kunhikrishnan Nambiar in respect of 75 acres from out of the above said 150 acres by registered document dated 7-5-1968 and that his brother Abraham purchased rights of Kunhikrishnan Nambiar in respect of the remaining land by another registered document on the same date. According to the applicant, the entire land belonging to him was included in the reserve forest as vested with the Government after demarcation by the Forest Department Authorities. Applicant contended that the property does not come within the purview of Act 26 of 1971. It is urged that under S.3(2) of the Act he can hold the land for cultivation upto the ceiling limits applicable under the Kerala Land Reforms Act. Another contention is that he is entitled to exemption under S.3(3) of the Act.

3. Respondents filed counter statement contending that the land in question forms part of Poyyamala and other Malavaram in Kapad village and that it is lying contiguous to the forest and that it is not at all possible to locate the property claimed by the applicant. It is contended by the respondents that the property is lying as a forest with valuable trees of natural growth and that there are no records in the village office to show that the applicant ever had obtained valid title over the 75 acres of land as claimed by him.

4. Tribunal held that the applicant had confined his claim for exemption of the property under S.3(3), eventhough in the application he claimed exemption under S.3(2) of the Act also. Applicants contention in the appeal is against the finding of the Tribunal that be is not entitled to exemption under S.3(3) of the Act. In the appeal memorandum it is urged that the Tribunal went wrong in ignoring his claim of exemption under S.3(3) of the Act. Applicant has no case that he pressed before the Tribunal his claim under S.3(2) of the Act. Learned Government Pleader pointed out that this Court allowed the claim under S.3(2) of the Act obviously overlooking the fact that the applicant himself did not have such a claim before this Court in the M.F.A. Counsel submitted that that happened as material particulars were not adverted to before this Court by the counsel appearing for the State and therefore review of the judgment has become really necessary.

5. The judgment of this Court in MFA 449 of 1979 dated 13-1-1982 shows that the appeal was allowed and the applicant's claim under S.3(2) of the Act was accepted. It has been held that the Tribunal erred in declining the relief to the applicant at least to the extent of the property covered by Ext. P-9 under S.3(2) of the Act. Order of the Tribunal shows that the applicant had confined his claim to exemption under S.3(3) even though in the application exemption under S.3(2) of the Act is also pleaded. As in the appeal memorandum the applicant has not challenged the said finding of the Tribunal it is apparent that the relevant aspect of the matter was not highlighted by the respondents' counsel before this Court and that was the reason why this Court happened to pronounce the judgment on a point which was not urged by the applicant at all.

6. There is no evidence in the case to hold that the property was under the applicant's personal cultivation. Applicant examined as pw.1 admitted that the entire property covered by