1. The State is in appeal challenging the order of the Forest Tribunal, holding that the application schedule property is exempted from vesting under S.3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as "the Vesting Act").

2. The application schedule property has a total extent of 9.33 acres. The property has been identified in Ext.C2, Commissioner's sketch as plots A, B, C, D and E marked therein. The applicant claimed that the property is under his personal cultivation by raising various crops. The applicant claimed to have obtained the property under Ext.Al agreement dated 13.11.1968. He has constructed a residential house in the property and is residing there with his family.

3. The respondent filed a counter statement contending that the property is a vested forest notified as VFC item No.105 in the notification dated 08.07.1977. It was claimed that the property was not under cultivation during the relevant period and that the property is a forest containing trees of various forest species.

4. The application was originally allowed in part by the Tribunal as per order dated 25.06.2014, declaring that plots B, C, D and E in Ext.C2 plan are not private forest vested with the Government under the Vesting Act. This Court in M.F.A.No.129 of 2014 set aside the order and remanded the matter back to the Tribunal. After the remand, the Tribunal held that, though the property is a forest under the Vesting Act, the property is liable to be exempted under S.3(2) of the Vesting Act.

5. Before this Court the only challenge is whether the application schedule property is liable to be exempted under S.3(2) of the Vesting Act. The applicability of the Madras Preservation of Private Forests Act, 1949 (MPPF Act), that it is a 'forest' as defined under the Vesting Act and also that the application schedule property is not liable to be excluded under Section (2)(f)(1)(i) of the Vesting Act, are not under challenge.

6. To get exemption under S.3(2) of the Vesting Act, the applicant has to prove that as on the appointed day namely, 10.05.1971, the property was under personal cultivation. The Tribunal relying on Ext.C3 Commissioner's report noted that, in the property, there existed 480 coffee plants, 60 jack fruit trees, 63 mango trees, 94 arecanut trees, 7 coconut trees, 137 pepper plants and 36 cashew trees. Pertinently, the age of the trees / cultivation have not been mentioned in Ext.C3. An expert Commissioner was not taken out to assess the age. As noticed above, the point relevant for finding whether the property is liable to be exempted under S.3(2) of the Vesting Act is the nature of the property as on 10.05.1971. The mere fact that, when the Commissioner visited the property in the year 2013, there existed certain cultivation, is not sufficient. The crucial issue has not been determined. We are of the opinion that the Tribunal could be directed to decide the matter afresh after affording opportunity to both sides to adduce further evidence.

7. The appellant has a further challenge that the applicant is not an "owner" as defined under the Vesting Act. He does not have any right to possession of the property, which is essential to maintain the application, it is urged. Since we have already expressed that the matter needs to be remanded back to the Tribunal, it would be sufficient if the said issue is also considered by the Tribunal while disposing of the matter afresh.

8. Resultantly, the order impugned is set aside and the matter is remanded back to the Tribunal for disposal de novo. The Tribunal shall afford opportunity to both sides to adduce evidence.
The parties to appear before the Tribunal on 16.01.2025.