HARILAL, J.

1. The appellants are the applicants in O.A.Nos.11/2004 and 12/2004 on the files of the Forest Tribunal, Kozhikode. The aforesaid applications were filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as 'the Vesting Act”) seeking a declaration that the application schedule properties are not private forests as contemplated under Section 2(f)(1)(i) and also they are entitled to get exemption under Section 3(2) and 3(3) of the Vesting Act, if it is a private forest.

2. According to the applicants, the application schedule properties in O.A.No.11/2004 belonged to Theyyalan, Balakrishnan and Madhavan and they acquired the properties by virtue of registered document No.174/1957. The application schedule properties in O.A.No.12/2004 also belonged to the said Balakrishnan and Madhavan by virtue of registered partition deed No.174/1957. The application schedule properties in both O.As are not 'private forests'; they are 'parambas' without any tree growth, much less any forest growth. The properties on the boundaries are also private lands. So the properties were not notified as a vested forest. Similarly, the Madras Preservation of Private Forests Act (“the M.P.P.F Act” for short) was not applied to the application schedule properties in both O.As. The properties were cultivated with fugitive crops before the appointed day, i.e. 10/5/1971.

3. The respondents resisted the said claim contending that the application schedule properties are part of “Nallekkavu Malavaram”, a private forest having a total extent of 61 Hectares (more than 100 Acres). It was also contended that M.P.P.F Act was applicable to the said Malavaram and there was no cultivation as contemplated under Section 2(f)(1)(i)(b) of the Vesting Act. Further, it was contended that there was no personal cultivation as is within the ceiling limits applicable to the applicants under the Kerala Land Reforms Act and the properties were not holding under a valid registered document of title and there was no kind of cultivation in those properties on the appointed day, i.e, 10/5/1971. Therefore, the applicants were not entitled to get any exemption under Sections 3(2) and 3 (3) of the Vesting Act.

4. On the aforesaid rival pleadings both parties adduced evidence, which consists of oral testimony of P.W.1 and R.W.1 and the documentary evidence of Exts.A1 to A3 and C1 to C4. After considering the aforesaid evidence on record, the Forest Tribunal dismissed the said applications on a finding that the application schedule properties are private forests on the appointed day and the applicants are not entitled to get exemption under Sections 3(2) or 3(3) of the Vesting Act.

5. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents.

6. In view of the submissions at the Bar, the first question to be considered is, whether the Tribunal is justified in finding that the application schedule properties are private forests as defined under Section 2(f)(1)(i) of the Vesting Act. It is trite law settled by this Court in State of Kerala v. Chandralekha [1995 (2) KLT 152 (FB)] that the burden of proof is heavy on the applicants to prove that the disputed properties were not private forest as on the appointed day and the applicants are entitled to get exemption under Sections 3(2) and 3(3) of the Vesting Act, if it is a private forest. It is not disputed that the properties are situated in the erstwhile Malabar District, where the M.P.P.F Act applied before the appointed day, i.e., 10/5/1971. The Forest Tribunal found that R.W.1 the Range Officer has deposed in accordance with the contention raised by the respondents that the application schedule properties form part of “Nallekkavu Malavaram” having an area of 61 Hectares and the said Malavaram was lying contiguous with forest areas more than 100 Acres. Nothing has been brought out to discredit the evidence adduced by the 2nd respond