J U D G M E N T

K. VINOD CHANDRAN,J The appeal is against an order in O.A No.51 of 2000 dated

31.5.2000. The application before the Tribunal was under S.8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The applicants who were the legal heirs of one Illikkal Kunhi Pathumma sought exemption, for an extent of 2.50 acres of land claiming that the same was cultivated by their mother, the predecessor in interest. It was alleged that the Forest Department in the year 1983, uprooted and cut & removed the rubber trees planted in the said land. They claimed exemption to the petition scheduled property under S. 3(2) and 3(3) of the Act of 1971. The respondents 3 to 5 were the other legal heirs, supporting the applicants; but who were not in station and hence made party respondents.

2. Admittedly the petitioners had filed the application with gross delay; the explanation for which was the proceeding initiated before the civil court seeking a restrain order against the official respondents 1 & 2 from interfering with the enjoyment of the property. O.S 199 of 1983 filed before the Munsiffs Court Manjeri stood dismissed, since the Act of 1971 ousted the jurisdiction of the civil court with respect to disputes coming under the said Act. An appeal filed as A.S 39 of 1988 and a second appeal filed as S.A 760 of 1990 were unsuccessful. This Court, in the second appeal, while dismissing the same, reserved the right of the appellant to approach the Forest Tribunal. A review filed also was accepted by this Court, directing ample opportunity to be provided to the applicant, while considering the question of limitation. The question of limitation considered as point No.1 went in favour of the applicants and there is no appeal filed by the State. We do not dwell upon the said aspect in the present appeal.

3. Smt. Prabha R Menon, learned Counsel appeared for the appellant and argued that the Commission report Ext.C1 and Ext.C3 site plan specifically found cultivation in the property. It was argued that Exts.A1 to A10 were documents showing the use and occupation of the property from the year 1968. Revenue Receipts showing payment of tax by the mother of the applicants and the applicants themselves, after her death, are produced as Exts.A6 to A10. There was a rubber plantation existing in the property and the Commission report clearly indicates that the adjacent properties are also rubber plantations. The absence of rubber trees in the subject property at the time of inspection was only by reason of the officers of the department having trespassed into the property and cut and removed the rubber trees existing there. It is argued that the Tribunal misdirected itself insofar as the identity of the property, the cultivation carried on in it and also erroneously found the subject property to be falling under the Madras Preservation of Private Forests Act, 1949 ( for brevity 'MPPF Act').

4. Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) argues that there was no identification of the property by the Commissioner appointed by the Tribunal nor evident from Ext.A13 report submitted before the civil court. It is also argued that Ext.A13, in the year 1986 and Ext.C1 report, in the year 2003, do not show the lie of the property as on the appointed date; ie 10.05.1971 as per the Act of 1971. The location of the property clearly comes within the Malabar area and the description indicates the same to be within the ambit of the MPPF Act. The cashew trees noted in Ext.C1 report was aged only 8 to 11 years. The applicants trespassed into the property and the documents were created only to put forth the claim for exemption before the Tribunal. The extent and description of the properties in the various documents do not tally. The amounts paid, as seen from the revenue receipts are different in different periods and have no relation to the extent of the property claimed by the applicants. It is asserted that the O.A is an experimental